COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00330-CV

STEVEN CHARLES RUSSO APPELLANT

V.

KELLY GOODNESS, M.D. APPELLEE

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FROM THE 362ND DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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Appellant Steven Charles Russo appeals the trial court‘s order granting Dr. 

Kelly Goodness‘s motion for summary judgment. We will reverse the trial court‘s 

judgment.

 

1See Tex. R. App. P. 47.4.
2

Background Facts

The underlying cause of action concerns allegedly libelous statements that 

Goodness made regarding Russo‘s state of mental health. The statements were 

in an affidavit executed by Russo‘s former trial counsel in a criminal case, Derek 

Adame. Russo had filed a post-conviction writ of habeas corpus, arguing 

ineffective assistance by Adame because Adame had refused to argue an 

insanity defense in Russo‘s criminal case. Russo believed that his high blood 

pressure and ―a problem with the dosage of his high blood pressure medicine‖ 

had rendered him insane or intoxicated at the time of his crime. Adame had 

counseled Russo against such a defense, believing that it was not a legitimate 

―severe mental disease or defect,‖ but eventually Adame requested that 

Goodness be appointed to evaluate Russo. According to Adame‘s affidavit, 

Goodness had determined that Russo was ―competent and was at no time 

insane due to problems with his high blood pressure or medication.‖ Adame also 

stated that Goodness ―characterized Russo as a  ̳malingerer‘ or a person who 

fakes medical symptoms in order to evade criminal prosecution.‖

Adame filed his affidavit in the habeas corpus case on February 19, 2009. 

The district attorney‘s office received a copy of the affidavit and forwarded it to 

Russo on March 11, 2009. The mail room of the Hightower Unit, where Russo 

was housed, received the document on March 12, 2009, and notified Russo that 

he could come collect his mail the next day. Russo received a copy of the 
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affidavit on March 13, 2009, and based on the two statements in Adame‘s 

affidavit, filed his petition against Goodness on March 15, 2010.

Goodness answered Russo‘s petition, pleading affirmative defenses of 

limitations and privilege. Goodness then filed a motion for summary judgment, 

but only on the grounds of limitations. The court granted Goodness‘s motion,

and Russo appealed.

Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the 

light most favorable to the nonmovant, crediting evidence favorable to the 

nonmovant if reasonable jurors could, and disregarding evidence contrary to the 

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every 

reasonable inference and resolve any doubts in the nonmovant‘s favor. 20801, 

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant is entitled to 

summary judgment on an affirmative defense if the defendant conclusively 

proves all the elements of the affirmative defense. Frost Nat’l Bank v. 

Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010), cert. denied, 131 S. Ct. 1017 

(2011); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the defendantmovant must present summary judgment evidence that conclusively establishes 

each element of the affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 

455 (Tex. 2008).
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Discussion

The limitations period on a libel claim is one year. Tex. Civ. Prac. & Rem. 

Code Ann. § 16.002(a) (Vernon 2002). The discovery rule may apply to libel 

causes of action when the matter is not public knowledge. Kelley v. Rinkle, 532 

S.W.2d 947, 949 (Tex. 1976). When the discovery rule applies, it defers the 

accrual of a cause of action until a plaintiff discovers or, through the exercise of 

reasonable care and diligence, should discover the nature of the injury. Childs v. 

Haussecker, 974 S.W.2d 31, 37 (Tex. 1998). Because the filings in this lawsuit 

were not made public knowledge, such as through broadcast media, we believe 

the discovery rule should apply here. See Kelley, 532 S.W.2d at 949 (―We would 

not apply the discovery rule where the defamation is made a matter of public 

knowledge through such agencies as newspapers or television broadcasts.‖).

Russo‘s claim of libel is based on an affidavit which was filed on February 

19, 2009. However, Russo was incarcerated at the time the affidavit was filed, 

and he did not receive a copy of it until March 13, 2009. Russo states in his 

―Rebuttal Response to Defendant‘s Amended Motion for Summary Judgment‖ 

that the district attorney wrote a letter dated March 11, 2009, forwarding a copy 

of the affidavit. Russo also included a ―copy‖ of the mail room notice dated 

March 12, 2009, instructing him to go to the mail room on March 13, 2009, to pick
5

up his mail.

2

 Because he was incarcerated, Russo had no independent means of 

discovering the injurious statements prior to receipt of the March 11 letter. We 

therefore hold that the discovery rule deferred the accrual of Russo‘s cause of 

action until March 13, 2009, the date Russo was first able to discover the injury.

Under section 16.002(a) of the civil practice and remedies code, Russo 

had one year from the date the injury accrued to file his cause of action. See

Tex. Civ. Prac. & Rem. Code Ann. § 16.002(a). However, March 13, 2010, was 

a Saturday. Thus, the limitations period ended on March 15, 2010. See Tex. R. 

Civ. P. 4. The clerk‘s office received Russo‘s petition on this date. However, the 

petition was originally filed as part of Russo‘s criminal case because the clerk did 

not realize it was a new cause. The clerk‘s office sent Russo a letter on May 26, 

2010, stating that it had misfiled the document and that they would file the 

petition as a civil case when Russo paid the filing fee or filed an affidavit of 

indigency. Russo complied and the separate civil case was filed June 14, 2010.

Goodness argues that because the new matter was not created until June 

14, 2010, Russo‘s petition was filed out of time. Russo argues that he timely 

submitted his petition and that any error of the clerk‘s office should not be 

attributable to him. The clerk‘s office has admitted that the petition was 

―inadvertently‖ filed under the wrong cause, and it apologized to Russo ―for the 

 

2

The ―copies‖ of the district attorney‘s March 11, 2009 letter and the mail 

room notice are handwritten, not photocopies of the original documents. 

However, Goodness does not dispute any of these dates.
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oversight.‖ However, the clerk‘s office told Russo that it would not file the petition 

as a new matter until Russo paid the filing fee or filed an affidavit of indigence.

If a document is filed without paying the filing fee, it is considered 

―conditionally filed‖ on the date it was tendered to the clerk. Tate v. E.I. DuPont

de Nemours & Co., 934 S.W.2d 83, 84 (Tex. 1996). When the fee is paid, the 

petition is deemed filed on the date it was originally tendered. Jamar v. 

Patterson, 868 S.W.2d 318, 319 (Tex. 1993). We see no reason why the rule 

should be different for those filing affidavits of indigency. See Houser v. Allen, 

No. 09-07-00106 CV, 2008 WL 2058162, at *4–5 (Tex. App.—Beaumont May 15, 

2008, pet. denied) (holding that plaintiff‘s petition was filed when he tendered it to

the court, even though it was returned unfiled because he submitted it without a 

statement of his inmate trust account, and plaintiff later provided the statement). 

Russo filed an affidavit of indigency; thus, Russo‘s petition is deemed filed on 

March 15, 2010, the date it was originally tendered to the court. As such, it was 

timely. Because Goodness did not move for summary judgment on any other 

grounds but limitations, the trial court erred in granting her motion for summary 

judgment. See State Farm Lloyds v. Page, 315 S.W.3d 525, 532 (Tex. 2010)

(―Summary judgment may not be affirmed on appeal on a ground not presented 

to the trial court in the motion.‖). We sustain Russo‘s sole issue.
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Conclusion

Having sustained Russo‘s issue, we reverse the trial court‘s judgment and 

remand the case for further proceedings consistent with this opinion.3

PER CURIAM

PANEL: GABRIEL, WALKER, and McCOY, JJ.

DELIVERED: May 26, 2011

 

3We also deny Russo‘s ―Motion for Sanctions Against Defendant‘s 

Frivolous Amended Motion.‖