Kirkland v. Martin et al

Filing 104

OPINION AND ORDER denying as moot 76 Motion for Judgment; denying 77 Motion for Partial Summary Judgment; granting 79 Motion for Summary Judgment.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHARON KIRKLAND,
Plaintiff,
VS.
MIKE MARTIN, et al,
Defendants.

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CIVIL ACTION NO. 4:10-CV-2865

OPINION AND ORDER

Pending before the Court are Defendants Mike Martin and Maloney, Martin, & Mitchell,
LLP’s motion for partial summary judgment (Doc. 76) and motion for summary judgment (Doc.
79) and Plaintiff Sharon Kirkland’s1 motion for partial summary judgment (Doc. 77). In their
motions, Defendants contend that Texas law controls Kirkland’s claims against them, that
Kirkland has impermissibly “fractured” her legal malpractice claim in order to avail herself of
longer limitations periods than otherwise would be applicable, that her claim for intentional
infliction of emotional distress cannot stand when she is protected by other means of redress, that
the applicable statutes of limitations bar Kirkland’s claims against them, and that Kirkland’s
claims are foreclosed by either claim or issue preclusion, or both. See Docs. 77, 79.
Kirkland has filed, in addition to her responses to Defendants’ motions, a motion for
partial summary judgment on her claims of negligence and legal malpractice. In that motion,
Kirkland contends that there is no genuine dispute of material fact regarding Martin’s
purportedly unlawful conduct and that she therefore is entitled to judgment as a matter of law on
these claims. Doc. 77.
After considering the motions, the facts of this case, and the applicable law, the Court
1

The Court variously refers to “Plaintiff” or “Sharon Kirkland” to ensure clarity.

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finds that Kirkland’s claims are barred by the applicable statutes of limitations and therefore
grants Defendants’ motion for summary judgment.
Background
This malpractice suit has a rather long and convoluted history. Sadly, it arises out the
illness and death of Plaintiff Sharon Kirkland’s husband, Clark Kirkland, allegedly as a result of
silicosis contracted from his use of Ingersoll-Rand equipment. Doc. 77 at 1-2. Unfortunately,
neither of the parties have successfully elucidated the underlying facts, nor has either party
buttressed their arguments with consistent reference to summary judgment evidence. As best the
Court can tell, the underlying facts are as follows.
In late 2002, Clark Kirkland signed a fee agreement with Defendant Mike Martin, an
attorney. Doc. 79-5 at 7. Plaintiff alleges that on April 11, 2003, through Defendant Martin,
Clark Kirkland filed a suit against Ingersoll-Rand in Muscogee County, Georgia. Doc. 77 at 1.
The parties agree that Martin filed claims on behalf of Mr. Kirkland and derivative claims for
loss of consortium on behalf of Plaintiff Sharon Kirkland. Docs. 77 at 2, 76 at 2. Plaintiff alleges
that she had no agreement with Defendant Martin and that he filed the claims in her name
without her consent. Doc. 77 at 2. Plaintiff additionally alleges that “Martin was not licensed to
practice in Georgia and had not sought the court’s permission to file the suit in Muscogee
County, Georgia, by first retaining local counsel.” Id. Defendants do not appear to dispute this
fact.
Plaintiff further alleges that the Georgia court “informed Martin that he needed either to
dismiss the lawsuit or face criminal penalties for the unauthorized practice of law,” in response
to which Martin dismissed the case without conferring with or informing Clark or Sharon
Kirkland. Id. Plaintiff goes on to allege that her husband only discovered the dismissal from the
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judge presiding in that suit eight months after the dismissal, that she was unaware that the claim
had been dismissed, and that she did not, at that time, learn that she had been named as a plaintiff
in the action. Id. Thereafter, Clark Kirkland “continuously attempted to communicate with
Martin regarding the status of his case and questioned Martin as to whether he missed the statute
of limitations” for the action in Georgia. Id. Plaintiff alleges that “Martin finally confessed his
concealment . . . and suggested ways of compensating for [potentially missing the limitations
period], including, but not limited to, suggesting that Mr. Kirkland lie about when he knew he
had silicosis.” Id.
In January 2004, Martin hired Scott Monge, a Georgia attorney, to act as local counsel
and filed a second action against Ingersoll-Rand and numerous other defendants in Fulton
County, Georgia, and again asserted claims on behalf of both Clark and Sharon Kirkland. Id. at
3. Plaintiff alleges that Martin filed this second action “without Mr. Kirkland’s knowledge and,
again, without Plaintiff’s knowledge, consent, or agreement.” Id. On July 23, 2004, the
defendants removed that case to the Federal District Court for the Northern District of Georgia
where it was assigned to Judge Thomas Thrash, Jr. See Doc. 1 in Kirkland, et al. v. 3M
Company, et al., No. 1:04-cv-2152-TCB (N.D. Ga. July 23, 2004). In October of that year, the
Judicial Panel on Multidistrict Litigation transferred that case to the Southern District of Texas
and assigned it to Judge Janis Graham Jack for consolidation with related silica products liability
cases. See Doc. 14 in Kirkland v. 3M, No. 1:04-cv-2152-TCB; In re Silica Prods. Liab. Litig.,
No. 2:03-md-1553 (S.D. Tex.).
On December 17, 2004, Clark Kirkland wrote to Judge Jack to inform her that Martin had
“notified [him] that he was withdrawing from [Kirkland’s] case and that he would be filing with
this Court for him to be released” as Kirkland’s attorney. Doc. 1498 at 1 in No. 2:03-md-1553.
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On January 31, 2005, Clark Kirkland filed a notice on his own and Sharon Kirkland’s behalf
objecting to Scott Monge and Mike Martin’s motion to withdraw as counsel. Doc. 1551 in id. On
January 31, Judge Jack ordered Clark Kirkland, Scott Monge, and Mike Martin to appear in
person for a court-monitored deposition of Kirkland regarding his allegations as to Monge and
Martin’s conduct. Doc. 1557 in id. The court held that hearing on February 16 in the Corpus
Christi Federal Courthouse.Doc. 1676 in id.
On January 26, 2005, the District Court for the Northern District of Georgia granted Scott
Monge’s motion to withdraw as attorney for the Kirklands. Doc. 16 in No. 1:04-cv-2152-TCB.
On August 22, Clark Kirkland filed a “notice of ascertion [sic] of rights and request to be
notified” with the Northern District of Georgia, alleging that “Plaintiffs notified both the U.S.
District Court in Georgia and Texas of severe misconduct by attorney Michael Martin.” Doc. 17
in id. On September 30, Judge Thrash ordered the plaintiffs to notify the clerk within twenty
days whether they wished to obtain substitute counsel or proceed pro se. Doc. 22 in id.
On October 18, the Judicial Panel on Multidistrict Litigation conditionally remanded
Kirkland v. 3M to the Northern District of Georgia. See Doc. 25 in id.
On November 2, Clark and Sharon Kirkland submitted a letter to the court stating that
they had “been placed in this position [of no longer having counsel] because of negligence,
misconduct, and malpractice by Attorneys Mike Martin and Scott Monge” and stating their
intention to proceed pro se. Doc. 30 in id. The letter was signed by Clark and Sharon Kirkland.
Nevertheless, on November 8, Judge Thrash struck the Kirklands’ letter for failure to comply
with Rule 5(a) of the Federal Rules of Civil Procedure and dismissed the action without
prejudice. Doc. 34 in id. In response to a subsequent letter informing the court of their
difficulties in obtaining counsel and responding to the court’s order (Doc. 39 in id.), Judge
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Thrash subsequently granted a motion for reconsideration and vacated the order of dismissal.
Doc. 49 in id. On April 3, 2006, the case was reassigned to Judge Timothy C. Batten, Sr. Doc. 58
in id.
On May 26, 2006, Judge Batten granted Defendants’ motion for summary judgment as to
Clark Kirkland’s claims on the grounds that they were barred by the applicable Georgia statutes
of limitations, but found that Sharon Kirkland’s loss of consortium claim was governed by a
longer statute of limitations and was not time-barred. Doc. 73 in id.2 On August 16, Ingersoll
Rand informed the court that it had reached a settlement with Sharon Kirkland (Doc. 88) and the
case was administratively closed. Doc. 89 in id.
Clark Kirkland subsequently filed a malpractice suit against Defendants Martin and
Maloney, Martin, & Mitchell, LLP in the 113th Judicial District of Harris County. Doc. 77 at 5.
See Kirkland, et al. v. Martin, et al., No. 2006-56213. Clark Kirkland passed away on May 29,
2009, after which Plaintiff continued the suit as the representative of Clark Kirkland’s estate. See
Doc. 79-2 at 2. The parties appear to agree that “[t]he jury returned a verdict for the Estate [of
Clark Kirkland] and the trial court signed a final judgment awarding the Estate damages in the
amount of $150,000. Neither side appealed.” Doc. 77 at 5. See also Doc. 79 at 23.
On August 20, 2009, Sharon Kirkland filed this action on her own behalf in the Federal
District Court for the District of South Carolina against Defendants Mike Martin and Maloney,
Martin, & Mitchell, LLP. Doc. 1. On August 10, 2010, Judge Henry Floyd transferred Plaintiff’s
claims for negligence, breach of fiduciary duty, fraud, negligent misrepresentation, legal
malpractice, and outrage to this Court pursuant to 28 U.S.C. § 1406(a) and her wrongful death
claim pursuant to 28 U.S.C. § 1404(a). Doc. 34. The parties have since moved for summary

2

Kirkland asserts that this “was the first time Plaintiff was made aware that Defendants had filed a claim on her
behalf.” Doc. 91 at 5.

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judgment and those motions are ripe for adjudication.
Legal Standard
A party moving for summary judgment must inform the court of the basis for the motion
and identify those portions of the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, that show that there is no genuine dispute
as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
The substantive law governing the suit identifies the essential elements of the claims at
issue, and therefore indicates which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). The initial burden falls on the movant to identify areas essential to the nonmovant’s claim in which there is an “absence of a genuine dispute of material fact.” Turner v.
Kansas City S. Ry. Co., 675 F.3d 887, 899 (5th Cir. 2012). If the moving party fails to meet its
initial burden, the motion must be denied, regardless of the adequacy of any response. Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc). Moreover, if the party moving
for summary judgment bears the burden of proof on an issue, either as a plaintiff or as a
defendant asserting an affirmative defense, then that party must establish that no dispute of
material fact exists regarding all of the essential elements of the claim or defense to warrant
judgment in his favor. Fontenot v. Upjohn, 780 F.2d 1190, 1194 (5th Cir. 1986) (the movant with
the burden of proof “must establish beyond peradventure all the essential elements of the claim
or defense to warrant judgment in his favor”) (emphasis in original).
Once the movant meets its burden, the non-movant must direct the court’s attention to
evidence in the record sufficient to establish that there is a genuine dispute of material fact for
trial. Celotex, 477 U.S. at 323–24. The non-moving party “must do more than simply show that
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there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indust. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986) (citing U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Instead, the non-moving party must produce evidence upon which a jury could reasonably base a
verdict in its favor. Anderson, 477 U.S. at 248; see also DIRECTV Inc. v. Robson, 420 F.3d 532,
536 (5th Cir. 2006). To do so, the non-movant must “go beyond the pleadings and by its own
affidavits or by depositions, answers to interrogatories and admissions on file, designate specific
facts that show there is genuine issue for trial.” Webb v. Cardiothracic Surgery Assoc. of N. Tex.,
P.A., 139 F.3d 532, 536 (5th Cir. 1998).
Unsubstantiated and subjective beliefs and conclusory allegations and opinions of fact are
not competent summary judgment evidence. Morris v. Covan World Wide Moving, Inc., 144
F.3d 377, 380 (5th Cir. 1998); Grimes v. Tex. Dep’t of Mental Health and Mental Retardation,
102 F.3d 137, 139–40 (5th Cir. 1996); Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir. 1994), cert.
denied, 513 U.S. 871 (1994); Topalian v. Ehrman, 954 F.2d 1125, 1131 (1992), cert. denied, 506
U.S. 825 (1992). Nor are pleadings summary judgment evidence. Wallace v. Tex. Tech. Univ., 80
F.3d 1042, 1046 (5th Cir. 1996) (citing Little, 37 F.3d at 1075). The non-movant cannot
discharge his burden by offering vague allegations and legal conclusions. Salas v. Carpenter,
980 F.2d 299, 305 (5th Cir. 1992); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990). Nor
is the court required by Rule 56 to sift through the record in search of evidence to support a
party’s opposition to summary judgment. Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458
(5th Cir. 1998) (citing Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915–16 & n.7 (5th Cir.
1992)).
Nevertheless, all reasonable inferences must be drawn in favor of the nonmoving party.
Matsushita, 475 U.S. at 587–88; see also Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable
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Co., 336 F.3d 410, 412 (5th Cir. 2003). Furthermore, the party opposing a motion for summary
judgment does not need to present additional evidence, but may identify genuine disputes of fact
extant in the summary judgment evidence produced by the moving party. Isquith v. Middle S.
Utils., Inc., 847 F.2d 186, 198–200 (5th Cir. 1988). There is a “genuine” dispute of material fact
if the evidence “is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248.
Analysis
In her first amended complaint, filed in this Court after the case was transferred from
South Carolina, Plaintiff asserts claims for negligence, breach of fiduciary duty, fraud, negligent
misrepresentation, wrongful death, legal malpractice, tort of outrage, and, “[i]f the Court were to
conclude that Texas law applies” to Plaintiff’s action, “an additional cause of action under the
Texas Deceptive Trade Practices Act.” Doc. 51 at 26. Plaintiff since has conceded that the
“limitations ran on her wrongful-death claim before Mr. Kirkland died” and her claim for
wrongful death therefore is barred. Doc. 91 at 13.
The parties disagree whether South Carolina or Texas law governs Plaintiff’s claims.
Both parties assert, however, that, subsequent to the transfer, the Court should apply Texas
choice of law rules to determine the applicable substantive law.3 “Texas uses the Restatement’s
‘most significant relationship’ test to decide choice-of-law issues.” Torrington Co. v. Stutzman,
46 S.W.3d 829, 848 (Tex. 2000) (citing Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202,
204 (Tex. 2000)). See also Restatement (Second) of Conflict of Laws §§ 6, 145 (1971). Under
that test, “[t]he rights and liabilities of the parties with respect to an issue in tort are determined

3

14D Charles Alan Wright et al., Fed. Prac. & Proc. § 3827 (2012) (“[T]he transferee court should apply whatever
law it would have applied had the action been properly commenced there.”). See Jackson v. W. Telemarketing Corp.
Outbound, 245 F.3d 518, 523 (5th Cir. 2001) (citing Tel-Phonic Servs., Inc. v. TBS Int’l., Inc., 975 F.2d 1134, 1141
(5th Cir. 1992)).

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by the local law of the state which, with respect to that issue, has the most significant
relationship to the occurrence and the parties.” Restatement § 145(1). The Restatement directs
courts, when determining the most significant relationship to consider “the place where the
injury occurred, . . . the place where the conduct causing the injury occurred, . . . the domicil,
residence, nationality, place of incorporation and place of business of the parties, . . . and the
place where the relationship, if any, between the parties is centered.” Id. § 145(2)(a)-(d).
In their motion for summary judgment, Defendants contend that Texas law applies solely
because the case was transferred to this Court pursuant to 28 U.S.C. § 1406(a). Defendants
supplemented this sparse reasoning in a subsequent submission in which they argue that the
alleged injury in this case occurred in South Carolina, but the conduct causing the injury
occurred in Texas, “where the alleged malpractice occurred,” and the relationship was centered
in Texas. Doc. 92 at 9. Plaintiff, for her part, asserts that “Defendants have presented no
summary-judgment evidence on any of these factors, and they have not attempted to argue how
the respective policies of South Carolina and Texas might impact the Court’s choice-of-law
decision.” Doc. 91 at 9. Plaintiff presents no further argument nor evidence why South Carolina
law, rather than Texas law, should apply to her claims.
Neither the Plaintiff nor the Defendants have presented a particularly compelling
argument. Nevertheless, resolution of the choice of law issue is unnecessary to the summary
judgment motions because Plaintiff’s claims would be time-barred whether South Carolina or
Texas law applies.
Under South Carolina law, Plaintiff’s claims for negligence, legal malpractice, negligent
misrepresentation, the tort of outrage, breach of fiduciary duty, and fraud would be governed by
a three-year limitations period. S.C. Code Ann. § 15-3-530 (Supp. 2003). Under Texas law,
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Plaintiff’s claims for negligence, legal malpractice, and negligent misrepresentation would be
governed by a two year statute of limitations. Tex. Civ. Prac. & Rem. Code § 16.003(a) (Vernon
2002). Plaintiff’s claims for fraud and breach of fiduciary duty would be governed by a four year
limitations period. Tex. Civ. Prac. and Rem. Code § 16.004(4)-(5). Defendants assert that, under
Texas law, Plaintiff’s claim for the South Carolina tort of outrage would be considered a claim
for intentional infliction of emotional distress, governed by the same two-year limitations period.
Doc. 79 n.4. See Tex. Civ. Prac. & Rem. Code § 16.003. Plaintiff has not responded to this
argument except to assert that her claims should be governed by South Carolina law. Doc. 79 at
11. Finally, Plaintiff has asserted a claim under the Texas Deceptive Trade Practices Act
(“DPTA”) conditional on the Court finding that Texas law applies to her case. DTPA claims are
subject to a two-year statute of limitations. Tex. Bus. & Com. Code § 17.565 (Vernon 2011).
In South Carolina, Plaintiff’s claims accrued when she “knew or by the exercise of
reasonable diligence should have known [s]he had a cause of action.” S.C. Code Ann. § 15-3535 (Supp. 2003).
In Texas, “[a] cause of action for legal malpractice accrues when the client sustains a
legal injury or, in cases governed by the discovery rule, when the client discovers or should have
discovered the facts establishing the elements of a cause of action.” Hughes v. Mahaney &
Higgins, 821 S.W.2d 154, 156 (Tex. 1991). The discovery rule applies when: (1) the nature of
the injury is inherently undiscoverable; and (2) evidence of the injury is objectively verifiable.
Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009) (citing Computer Assocs.
Int’l., Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996)).
Here, the discovery rule applies to Plaintiff’s claims under the DTPA and for negligence,
fraud, breach of fiduciary duty. See El Paso Assocs., Ltd. v. J.R. Thurman & Co., 786 S.W.2d 17,
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20 (Tex. App.–El Paso 1990, no writ) (for breach of fiduciary duty and negligence, claims run
from the time the tort was discovered or could have been discovered in the exercise of reasonable
diligence); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988) (for commonlaw fraud, limitations period runs from the time the fraud was perpetrated, or if the fraud has
been concealed, from the time it was discovered or could have been discovered by exercise of
reasonable diligence); Tex. Bus. & Com. Code § 17.565 (“All actions brought under this
subchapter must be commenced within two years after the date on which the false, misleading, or
deceptive act or practice occurred or within two years after the consumer discovered or in the
exercise of reasonable diligence should have discovered the occurrence of the false, misleading,
or deceptive act or practice.”).
In Texas, malpractice claims additionally are subject to the Hughes rule of equitable
tolling. “[W]hen an attorney commits malpractice while providing legal services in the
prosecution or defense of a claim which results in litigation, the legal injury and discovery rules
can force the client into adopting inherently inconsistent litigation postures in the underlying
case and in the malpractice case.” Hughes, 821 S.W.2d at 156. In such cases “the statute of
limitations on the malpractice claim against the attorney is tolled until all appeals on the
underlying claim are exhausted.” Id. at 157. Although South Carolina’s statute of limitations
contains the statutory equivalent of a discovery rule, the courts there have “decline[d] to adopt
the continuous representation rule” for malpractice claims. Epstein v. Brown, 610 S.E.2d 816,
820 (S.C. 2005) (citing S.C. Code Ann. § 15-3-535 (Supp. 2003)).
The statute of limitations on almost all of Plaintiff’s claims under both South Carolina
and Texas law therefore began running when Plaintiff knew or should have known, with the
exercise of reasonable diligence, of her legal injuries and, to the extent she states a claim for
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legal malpractice under Texas law, when the appeals on her underlying claims were exhausted.4
Defendants provide a scattershot account of various dates on which Plaintiff knew or should
have known of her claims against Defendants, and a variety of legal theories to support the
imputation of her husband’s knowledge to her. The Court finds the matter rather clear. Taking
Plaintiff at her word that she initially was unaware that Martin filed the underlying silicosis in
her name, as well as her husband’s, she nonetheless admits that “May 2006,” when Judge Batten
in the Northern District of Georgia granted summary judgment against her husband in that
action, “was the first time Plaintiff was made aware that Defendants had filed a claim on her
behalf.” Doc. 91 at 5. See also Doc. 73 in No. 1:04-cv-2152-TCB. Plaintiff thus became aware
no later than May 2006, more than three years before she filed this action on August 20, 2009
that Defendants had fraudulently filed a claim on her behalf and, without her cooperation or
input, pursued that claim in state and federal court in Georgia and Texas. See Doc. 1.
The record is nonetheless replete with summary judgment evidence that Plaintiff was
aware of Defendants’ actions well before May 2006. On January 31, 2005, in the underlying
silicosis litigation consolidated in the Southern District of Texas, Plaintiff’s husband submitted a
motion to the court from the “Plaintiffs in the above captioned matter” in which he objected to
Martin’s counsel and conduct and accused him of negligence and malpractice. See Doc. 1551 in
No. 2:03-md-1553 (emphasis added). That same day, Judge Jack ordered Clark Kirkland, Scott
Monge, and Mike Martin to appear in person for a court-monitored deposition of Kirkland
regarding his allegations as to Monge and Martin’s conduct. Doc. 1557 in id. On February 16,
Clark Kirkland travelled from South Carolina to Corpus Christi to attend that hearing, which
related directly to Martin’s conduct in the case. Doc. 1676 in id. On August 22, Clark Kirkland
4

Plaintiff’s claims for negligent misrepresentation and intentional infliction of emotional distress likely are not
governed by the discovery rule. Because these claims arose concurrent with her other claims, which are subject to
the discovery rule but are nonetheless time-barred, these claims likewise are time-barred.

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filed a motion with the Northern District of Georgia in which he asserted that “Plaintiffs notified
both the U.S. District Court in Georgia and Texas of severe misconduct by attorney Michael
Martin.” Doc. 17 in No. 1:04-cv-2152-TCB. (emphasis added).
Throughout the litigation, then, Plaintiff’s husband clearly was aware that he and his wife
were named plaintiffs in his case. He submitted documents attesting to this fact and travelled to
Texas to respond to concerns he had about Martin’s conduct as their attorney. It is unreasonable
to conclude that Plaintiff learned none of these facts from her husband. Additionally, Plaintiff
confirmed her knowledge of Martin’s conduct in the underlying silicosis litigation on November
2, 2005, when she and her husband submitted a letter to the Northern District of Georgia stating
that “the Plaintiffs contend that they have been placed in this position [of no longer having
counsel] because of negligence, misconduct, and malpractice by Attorneys Mike Martin and
Scott Monge” and stating their intention to proceed pro se. Doc. 30 in id. (emphasis added).
Plaintiff signed that letter. The letter directly contradicts Plaintiff’s assertion that she was
unaware of Martin’s conduct until May 2006.
Because the record before the Court indicates that Sharon Kirkland knew of Defendants’
purportedly unlawful conduct throughout the underlying litigation, and because she confirmed
that knowledge in a letter in November 2, 2005, it is clear that her claims are barred by
limitations. Any claims not subject to equitable tolling are time-barred under both the Texas twoand four-year statutes of limitations and the South Carolina three-year limitations period.
To the extent that Kirkland asserts a claim for malpractice under Texas law, that claim
would be subject to the Hughes rule of equitable tolling and the statute of limitations would not
run “until all appeals on the underlying claim are exhausted.” See Hughes, 821 S.W.2d at 156, 57. Here, Plaintiff settled her claims against the defendants in the underlying litigation in a
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settlement signed on August 29, 2006 and filed with the Northern District of Georgia on
September 11 of that year. See Docs. 88, 89 in No. 1:04-cv-2152-TCB. Plaintiff filed this action
on August 20, 2009, almost three years after the final settlement and well outside of the two-year
statute of limitations applicable to a malpractice claim under Texas law. Plaintiff’s claims against
Defendants for alleged wrongful conduct arising out of the underlying silicosis litigation
therefore are time-barred.
Conclusion
For the foregoing reasons, the Court hereby
ORDERS that Defendants Mike Martin and Maloney, Martin, & Mitchell, LLP’s motion
for summary judgment (Doc. 79) is GRANTED. Further, the Court
ORDERS that Plaintiff Sharon Kirkland’s motion for partial summary judgment (Doc. 77) is
DENIED and that Defendants’ motion for partial summary judgment (Doc. 76) is DENIED AS
MOOT.
SIGNED at Houston, Texas, this 10th day of September, 2012.

___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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