Hazlewood v. Bank Of America et al

Filing 23

ORDER GRANTING 19 MOTION for Judgment on the pleadings. Plaintiff's claims against Baker are DISMISSED with prejudice. Attorney Benjamin R Idziak and Britton Lee Larison terminated. Baker Mortgage Company terminated.(Signed by Judge Gray H. Miller) Parties notified.(rkonieczny)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DOUGLAS P. HAZLEWOOD ,
Plaintiff,
vs.
BANK OF AMERICA , N.A., et al.,
Defendants.

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CIVIL ACTION H-12-01125

ORDER
Pending before the court is defendant Baker Mortgage Company’s (“Baker”) Rule 12(c)
motion for judgment on the pleadings. Dkt. 19. Plaintiff has not responded. Under the Local Rules
of the Southern District of Texas, Baker’s motion will be treated as unopposed. S.D. TEX . LOC. R.
7.4. Having reviewed the motion, record evidence, and applicable law, the court finds that the
motion should be GRANTED.
Plaintiff pled six causes of action against Baker in his live complaint, Dkt. 1-1, all of which
arise out of a real estate transaction in March 2006. Plaintiff filed his original petition on March 20,
2012, six years after the challenged transaction. Id. Thus, his causes of action are barred by the
applicable statutes of limitation, none of which exceed four years, unless the accrual date is deferred
by a relevant exception. Plaintiff alleges in his petition that the discovery rule saves his claims
because it “first became possible for Plaintiff to discover Defendant(s) conduct on February 3, 2012
when Plaintiff’s counsel did an in depth review of all documents” from the transaction. Dkt. 1-1
¶ 52. However, the discovery rule only applies when the injury is “inherently undiscoverable.”
Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009). Plaintiff’s injuries do not meet
this test, as the alleged wrongdoing became apparent after reviewing the loan documentation. Cf.

Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734–35 (Tex. 2001) (“An injury is inherently
undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed limitations
period despite due diligence.”). Further, regarding equitable tolling, plaintiff cited to certain case
law on this issue, but he pled no facts to support application of that deferral doctrine to this case.
Plaintiff’s claims are barred by limitations, and Baker’s motion for judgment on the pleadings
(Dkt. 19) is GRANTED. Plaintiff’s claims against Baker are DISMISSED WITH PREJUDICE.
It is so ORDERED.
Signed at Houston, Texas on March 19, 2013.

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Gray H. Miller
United States District Judge

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