Silence Implies Discovery

Rickey Wayne Tolbert sued his former attorney, George Otstott, for legal malpractice. Tolbert is a pro se prison inmate, and was incarcerated at the time Otstott settled three separate personal injury matters on Tolbert’s behalf. The trial court granted summary judgment for the defendant based on his limitations defense, and since the underlying lawsuits were settled between 1987 and 1991, you would think that’s probably a meritorious defense. The court of appeals agreed. As a matter of law, a reasonably diligent person, after receiving a $1,012 check from his attorney, followed by sixteen years of silence, would have investigated and discovered that the lawyer had settled all three claims. Thus, the two year limitations periods for legal malpractice expired long before the filing of Tolbert’s lawsuit in 2010.

Tolbert v. Otstott, No. 05-12-0024-CV