Pollard v. Hanschen, 315 S.W.3d 636 (Tex. App. 2010)
TX: Family Law
Student contributor: David Yanoff
Facts: Defendant represented plaintiff in a divorce action. After a fee dispute, defendant withdrew as counsel in August 2000. The case was set for trial in September 2000. Plaintiff hired a new attorney, who negotiated an accord and satisfaction of fees on the eve of trial, in the amount of $5,500. Plaintiff agreed to sign over a cashier’s check for $20,000, understanding that defendant would return $14,500. Defendant retained an additional $3,400 out of the $20,000, and refused to return it. Plaintiff sued defendant for breach of fiduciary duties, conversion, restitution, and breach of contract. Defendant filed a motion for summary judgment asserting a limitations defense. Plaintiff responded arguing that defendant failed to disprove as a matter of law that the claims were tolled during the pendency of the divorce proceedings. Defendant responded that the Hughes tolling doctrine (limitations period tolled until all appeals have been exhausted) did not apply because of intervening events, namely the court’s reversal and remand in August 2003 of the underlying divorce action. The court granted defendant’s summary judgment motion, and plaintiff appealed.
Issue(s): Does the Hughes doctrine (limitations tolled until all appeals are exhausted) apply where plaintiff ‘s claim involves a fee dispute with respect to the original litigation?
Ruling(s): No. Plaintiff’s claims for conversion, unjust enrichment, and breach of contract regarding the disputed fee did not depend in any way on the outcome of the divorce proceedings. The Hughes doctrine applies only to protect plaintiff’s actions from becoming time-barred during the pendency of appeals where the outcome of the underlying cause of action is a critical element of the claim.
Lesson(s): Texas, unlike some states, is quite liberal in tolling limitations periods for legal malpractice claims. Claims may be tolled for years during a lengthy trial or appeal. However, a claim that is not contingent on the final outcome of the underlying action will not be tolled during appeal, and the two year statute of limitations applies.
Tagged with: appeal, doctrine, Hughes, limitations, malpractice, statute, Texas, tolling
Posted in: Texas