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No. 05-99-01365-CV, 6/23/2003. Click here for the full text of this decision FACTS: Roger K. Parsons, individually and as administrator of the estate of Esther Ann Parsons, appeals the trial court’s summary judgment entered in favor of Windle Turley and Windle Turley P.C. The Texas Supreme Court reversed this court’s original opinion and remanded this case for further proceedings. The facts of the case, as set out by the court, are as follows: In September 1991, Parsons’ wife died in a plane crash. The plane was owned and operated by E.I. DuPont de Nemours and Co., which also employed the pilots at the time of the crash. Parsons’ wife was an employee of Conoco Inc., which was responsible for overseeing the health and physical competency of DuPont’s pilots. Parsons hired Turley to represent him individually and as representative of his wife’s estate, according to the court of appeals. Parsons instructed Turley to file suit against DuPont and Conoco in state court, according to the court of appeals. However, Turley filed suit only against DuPont in state court, according to the court of appeals. DuPont removed the case against it to federal court. In a separate action, Turley filed suit against Conoco in state court and was unsuccessful in joining Parsons’ claims against Conoco in the federal suit, according to the court of appeals. The trial court subsequently granted Conoco’s motion for summary judgment in state court on June 13, 1994. On April 25, 1995, the state court entered a final judgment dismissing Parsons’ claims against the pilots’ estates and all remaining claims. Turley filed a motion for new trial on May 26, 1995. Parsons hired separate appellate counsel who advised him that the court of appeals lacked jurisdiction to consider the appeal because the motion for new trial was filed 31 days after the final judgment was signed, and no timely notice of appeal or cost bond was filed, according to the court of appeals. The court of appeals dismissed the appeal for lack of jurisdiction on Oct. 12, 1995, and no further appeals were taken. In federal court, the suit against DuPont was tried to a jury, which entered a verdict in favor of Parsons on his negligence and gross negligence claims and awarded $4.75 million in actual damages to Parsons and $1 million to his wife’s parents. Nevertheless, the federal court sustained DuPont’s motion for judgment as a matter of law on the jury’s gross negligence findings, holding that the evidence was legally insufficient to support such a finding. On July 27, 1994, the federal court entered judgment awarding Parsons the actual damages found by the jury along with prejudgment interest, postjudgment interest and court costs. Turley filed a notice of appeal on behalf of Parsons. However, on Dec. 5, 1994, Parsons informed Turley by letter that Parsons had hired a different lawyer to represent him on appeal in the federal case and that Turley’s firm was “relieved of all responsibility with respect to the appeal of [Parsons'] case, effective now.” In appealing the federal court’s judgment, Parsons argued the evidence was sufficient to support the jury’s gross negligence finding. On June 12, 1996, the 5th U.S. Circuit Court of Appeals affirmed the federal court’s judgment, and mandate issued on July 18, 1996. Subsequently, at DuPont’s request, Turley sent a letter to DuPont’s counsel calculating the principal, prejudgment interest and post-judgment interest on the federal judgment against DuPont. Parsons disagreed with Turley’s calculations in that they failed to compound prejudgment interest, according to the court of appeals. Parsons’ counsel submitted different calculations to DuPont. DuPont refused to compound prejudgment interest, and the federal court also denied Parsons’ request to compound prejudgment interest. Parsons appealed, and the 5th Circuit again affirmed the federal court. As a result of depositions taken in March and April 1998, Parsons learned that Conoco had knowledge before the plane crash that the pilot had an alleged alcohol problem, according to the court of appeals. On June 12, 1998, Parsons sued Turley, alleging, among other things, that Turley negligently failed 1. to discover and use the evidence of the pilot’s alleged alcohol problem; and 2. to bring suit originally against DuPont and Conoco in state court, according to the court of appeals. Turley moved for summary judgment on the grounds that Parsons’ suit was barred by the statute of limitations, collateral estoppel and lack of causation. On Aug. 16, 1999, the trial court granted Turley’s motion for summary judgment without specifying the grounds for its judgment. HOLDING: Affirmed. The court sustains Parsons’ argument that the accrual of his claims for legal malpractice was tolled until all appeals were exhausted in the underlying litigation. The court addresses Parsons’ argument that fact issues exist regarding whether Turley is equitably estopped from asserting his limitations defense or waived his right to diligent service of process and whether Parsons in fact exercised due diligence in serving Turley. The issue before the court is whether the record shows any evidence that Parsons used diligence in procuring the issuance and service of citation. The two controlling factors that establish due diligence are 1. whether the plaintiff acted as an ordinary prudent person would act under the same circumstances; and 2. whether the plaintiff acted diligently up until the time the defendant was served. According to the affidavit of Robert Greenberg, Parson’s attorney, he “developed the firm conviction that [Turley] desired and concurred in the idea of postponing service of citation in order to discuss the facts of the case for a possible early settlement.” Even if there was an agreement to postpone service, a party cannot claim the exercise of “due diligence” by relying on an agreement when such an agreement is unenforceable under the rules of civil procedure. Allen v. City of Midlothian, 927 S.W.2d 316 (Tex. App. – Waco 1996, no writ). Further, the fact that Turley’s attorney met with Greenberg and did not object to the delay of service of process did not equitably estop Turley from raising the defense of limitations or amount to a waiver of diligent service of process. OPINION: Bridges, J.; Thomas, Bridges and Francis, JJ.

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