This is a consolidation of three appeals brought by Appellants pro se in the District Court of Oklahoma County. The three causes consolidated and ruled on below, include:
1) CJ-79-991, an action by Appellants, Roberta Ann Funnell, individually and as administratrix of the estate of David Allen Funnell, deceased, and Donald Fun-nell, against Appellees, Stephen Jones and William R. Thompson, fоr legal malpractice.
2) CJ-80-2351, an action by Appellant, Roberta Ann Funnell against Appellees James E. Work, George Camp, Rick Chew, Robert D. Looney, Sr., Wendell Wightman and Thomas A. Williams, also for legal malpractice.
3) CJ-80-4300, an action by Appellant Roberta Ann Funnell as personal representative of David Allen Funnell, deceased against Appellees Jаmes D. Fun-nell, Harriet Funnell, Jonathan Burch, Edwin Whitney Burch and Jerry Dick for fraud.
*107 On September 13, 1982, the Honorable Ray Lee Wall, sitting by special appointment, found and ordered that Appellants’ claims in 1) and 2) had been barred by the applicable statutes of limitations, and that Appellants’ claim in 3) had been barred by a settlement agreement. Thereupon, the court sustained motions for summary judgment in each of the three actions in favor of the respective defendants, and Appellants commenced this appeal.
We find the trial court’s findings and orders to be correct in each instance.
We are unusually impressed with the organizational ability, grasp and understanding of the appellant pro se, but the fact that these lawsuits and their subsequеnt appeals were conducted pro se does not, in any way relieve Plaintiffs/Appellants of the responsibility to conform their actions to the rules of pleadings, evidenсe or appellate practice. We adopt the rule stated by the Court of Criminal Appeals in
Bowen v. State,
The arguments in cases 1) and 2), are founded on the Appellants’ belief that the statute of limitations was tolled аs to her causes of action for legal malpractice due to the fraudulent concealment of wrongdoing by the attorney who allegedly committed the wrongful acts; conсealed by an alleged conspiracy among the attorneys subsequently consulted by Appellants to prosecute the first attorney. Inasmuch as Appellants’ Petitions below allеge no acts constituting legal malpractice which occurred during the two-year period immediately prior to the filing of Plaintiffs’ initial Petition, some tolling of the statutes must be proved to avoid the finding that the actions were barred. To this end, Appellants allege the theory of tolling of limitation by concealment.
In Oklahoma, an action for malpractice, whether medical or legal, though based on a contract of employment, is an action in tort and is governed by the two-year statute of limitations at 12 O.S.A. 1981, § 95 Third.
(Seanor v. Browne,
“One relying on fraudulent concealment to toll the statute of limitation must not only show that he did not know facts constituting a cause of action, but that he exercised reasonable diligence to ascertain such facts.”
To specifically address the rule stated in Nipper, we note that the record reveals Appellant, Robertа Ann Funnell was complaining of her first attorney, James E. Work’s alleged malpractice as early as June, 1971. Even though she was aware no action had ever been instituted against him, she waitеd almost ten years to do anything about it. The painful conclusion to be drawn is her actual knowledge in 1971 of the acts she alleges constitute malpractice shows there was no concealment on the part of anyone which would toll the statute of limitations as to her cause of action against Work.
Appellant, Roberta Ann Funnell, complains each subsequent attorney was negligent for not suing each preceding attorney for not suing Work for negligence which allegedly occurred on or about August 8, 1969. While this theory of “tacking” the negligenсe of one party onto the negligence of another to create a single, continuous tort, is original, such argument is not persuasive to necessitate the creation оf a new doctrine of limitations, for there is no allegation that subsequent attorneys were acting as joint tort-feasors.
If the action against Work was barred by the statute of limitations, which wе find to be the case, then the succeeding lawyers cannot be guilty of malpractice for not filing an invalid lawsuit. The liability of *108 each successive lawyer must be bottomed on his own, negligent act, not on the original complaint.
Even assuming there are other allegations against any of the attorney-Appel-lees which might be grounds for a cause of action for malpractice, the petitions filed by Appellants below do not allege any such negligent acts occurring within a two-year period immediately preceding the filing, and such petitions are, therefore, fatally defective on their face and summary judgment lies.
In summary then, as to causes 1) and 2), supra, we find the two-year statute of limitations is applicable to each; the original petitions allege no act of malpractice occurring within the two-year period immediately preceding its filing, and the allegation that the statute of limitation was tolled by concealment fаils because of Appellant, Roberta Ann Funnell’s knowledge of the acts she complains of as negligent. The trial court committed no error in granting summary judgment as to these causes.
Appellants allege errors regarding acts by attorneys employed subsequent to the original lawyers. These allegations on the merits however, may not be reached when the trial сourt grants summary judgment on the question of statute of limitations. In order for the allegation of malpractice to be considered such acts of necessity must be committed within two years of the acts complained of, or within two years of discovery of such acts.
The trial court’s granting of summary judgment in case 3) supra, was on other grounds. This action alleges that on June 28, 1978, Appellant, Roberta Ann Funnell’s sons, Donald Funnell and David Funnell were induced by fraud and coercion to execute a settlement agreement and thus to terminate certain litigation between themselves as plaintiffs and Appellees Jаmes Funnell and Harriet Funnell. David Fun-nell subsequently died and Roberta Ann Funnell was appointed his personal representative. Appellant seeks to vacate the settlement agreеment on behalf of David Funnell’s estate and alleges he was coerced and defrauded into signing by all the named defendants.
It is a settled rule in Oklahoma that fraud is never presumed and wherе a written agreement is attacked on the ground of fraud, that agreement will be upheld unless the allegations of fraud are established by clear and convincing evidence.
(Steiger v. Commerce Acceptance Co.,
It may be truе that appellant has rightfully set forth the elements of fraud for the inducement of execution of settlement. What such allegations lack is specificity, clarity and convincingness for thеre seems little doubt the adult sons of the appellant accepted the proceeds of settlement under its terms.
The plain wording of the agreement says appellant’s sоns had full and complete access to all the books and records of the defendants and had satisfied themselves as to the truth and accuracy of everything contained therein. On its face, this document appears to be a fair agreement, knowingly executed by the parties to it and supported by adequate consideration. Appellant’s allegations that it was procured by unlawful means is, of course, within the realm of possibility, but is not supported by properly pled facts which rise to the standard required to vitiate such an agreemеnt.
Also applicable here is the rule stated in
Tyler v. Hartford Insurance Co.,
“When a transaction is fairly susceptible of two constructions, the one which will free it from the imputation of fraud will be adopted.”
Appellant correctly points out that in some limited instances involving fiduciaries, the party in the fiduciary position may be required to offer affirmative proof that no fraud existed.
(Looney v. Chastain,
We hold that the trial court properly granted summary judgment in cause 3.
The judgment of the trial court is AFFIRMED.