X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:In 1980, Carol A. Whitsett’s husband was killed in an airplane crash. After her husband’s death, Whitsett engaged attorney Thomas Dardas to pursue a wrongful-death claim and handle the estate of her late husband. During the representation, Dardas convinced Whitsett to make him two loans together totaling $95,000. Dardas defaulted on the loans. In December 1981, Whitsett hired William E. Junell to represent her in a suit against Dardas to obtain repayment of the loans. Junell filed suit against Dardas in December 1982. The suit alleged breach of fiduciary duty, legal malpractice, breach of contract, fraud, violations of the Deceptive Trade Practices Act (DTPA) and sought recovery of punitive damages. Whitsett alleges that she asked Junell to assert additional tort claims against Dardas in the suit, and that Junell advised against filing these claims, because he felt that pursuing those claims would be futile. Dardas filed for bankruptcy shortly thereafter, and Junell asserted Whitsett’s claims in the bankruptcy proceeding. In 1988, Junell left his former firm and joined Andrews Kurth. Junell withdrew from his representation of Whitsett in February 1991. Tom Dickens, Whitsett’s new attorney, pursued the Dardas litigation in federal court and lost. Whitsett appealed the trial court’s take-nothing judgment in the Dardas litigation. The 5th U.S. Circuit Court of Appeals dismissed the appeal on March 30, 1993. On March 30, 1995, two years after the dismissal of the federal appeal, Whitsett filed this action against Junell and Andrews Kurth. Whitsett alleged: that Junell negligently failed to pursue the tort claims which Junell as her attorney asserted against Dardas; and that he failed to include additional unidentified tort claims. Junell and Andrews Kurth moved for partial summary judgment, asserting the affirmative defense of limitations. The trial court granted the motion. After the partial summary judgment, Whitsett’s remaining claims against Junell and Andrews Kurth went to trial, including claims for fraud, conspiracy to commit fraud, violations of the DTPA and breach of fiduciary duty. The trial court granted Junell and Andrews Kurth’s motion for directed verdict on all of Whitsett’s claims except the breach of fiduciary duty claim. The jury returned a verdict in favor of Junell and Andrews Kurth on the breach of fiduciary duty claim, and the trial court rendered a final judgment that Junell did not engage in a clear and serious violation of duty to Whitsett such that he should be required to forfeit his fee. Whitsett died in February 2002. Her estate pursued the litigation on her behalf, appealing the partial summary judgment that dismissed Whitsett’s legal malpractice claims based on limitations. HOLDING:Reversed and remanded. A two-year statute of limitations, the 1st Court of Appeals stated, governs legal malpractice claims. The statute of limitations begins to run when the claim accrues, the court stated, and a legal malpractice claim accrues when the client sustains a legal injury or, in cases governed by the discovery rule, when the client discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of the claim. The court cited 1991′s Hughes v. Mahaney & Higgins, 821 S.W.2d 154, wherein the Texas Supreme Court established a tolling rule for the statute of limitations in legal malpractice cases. The Texas Supreme Court stated in that case: “[W]hen an attorney commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claim are exhausted.” The Texas Supreme Court further explained that limitations should be tolled for the malpractice claim, because the viability of the malpractice claim depends on the outcome of the underlying litigation. The 1st Court stated that the case fell within the Hughes rule. As a result, the court found that the statute of limitations on Whitsett’s legal malpractice claims against Junell and Andrews Kurth was tolled until March 30, 1993, the day the 5th Circuit dismissed Whitsett’s appeal in the Dardas litigation. Therefore, the court stated, Whitsett timely filed her malpractice claims on March 30, 1995. The court held that the trial court erred in granting summary judgment in favor of Junell and Andrews Kurth on Whitsett’s legal malpractice claims on the basis of limitations. OPINION:Bland, J.; Radack, C.J., and Alcala and Bland, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.