tolling rule in Texas

2023See Erikson, 590 S.W.3d at 566 (“[W]e look to the rule, not its motivating policies, to determine its application.”); Apex Towing, 41 S.W.3d at 122 (“[W]ithout re-examining whether the policy reasons behind the tolling rule apply in each legal-malpractice case matching the Hughes paradigm, courts should simply apply the Hughes tolling rule to the category of legal-malpractice cases encompassed within its definition.”); Murphy, 964 S.W.2d at 272 (declining to extend Hughes to a claim for accounting malpractice even though “prosecuting both the tax suit and a malpractice suit at the same time wo

2020The Texas Supreme Court first articulated this tolling rule in Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991), and later reaffirmed it in Apex Towing Co. v. Tolin, 41 S.W.3d 118, 119 (Tex. 2001).

2026Steele’s Rule 91a motion also preemptively addressed the potential applicability of the tolling doctrine recognized in Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991).

2022Hughes Tolling Doctrine In 1991, the supreme court adopted a tolling rule for some legal malpractice claims: “[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.” Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991).

2023See Erikson, 590 S.W.3d at 566 (“[W]e look to the rule, not its motivating policies, to determine its application.”); Apex Towing, 41 S.W.3d at 122 (“[W]ithout re-examining whether the policy reasons behind the tolling rule apply in each legal-malpractice case matching the Hughes paradigm, courts should simply apply the Hughes tolling rule to the category of legal-malpractice cases encompassed within its definition.”); Murphy, 964 S.W.2d at 272 (declining to extend Hughes to a claim for accounting malpractice even though “prosecuting both the tax suit and a malpractice suit at the same time wo

2019In Murphy v. Campbell, which involved tax litigation resulting from accountant malpractice, we held that the “[discovery] rule should apply whether the [professional] advisor is a lawyer or an accountant,” but Hughes tolling does not.43 We noted that Hughes tolling was “expressly limited . . . to attorney malpractice in the prosecution or defense of a claim that results in litigation” and had been “restricted . . . to the circumstances presented.”44 We further explained that the tolling rule did 40 Id. 41 Id. 42 Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122-23 (Tex. 2001) (discussing Sanchez v.

2019We have substantively addressed Hughes tolling in only a handful of cases,30 but those opinions have shaped the tolling doctrine into a carefully crafted and narrowly defined rule with 27 Willis, 760 S.W.2d at 645 (citation omitted); S.V. v. R.V., 933 S.W.2d 1, 6 (Tex. 1996). 28 821 S.W.2d 154 (Tex. 1991). 29 Id. at 156 . 30 Underkofler v. Vanasek, 53 S.W.3d 343, 345-46 (Tex. 2001); Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122-23 (Tex. 2001); Am.

2007See Underkofler v. Vanasek, 53 S.W.3d 343, 347 (Tex.2001); Apex Towing Co., 41 S.W.3d at 121-23 ; Sanchez, 898 S.W.2d at 288 ; Am.

2021See Willis v. Maverick, 760 S.W.2d 642 , 645 n.2 (Tex. 1988); McCraine v. Chamberlain, Hrdlicka, White, Williams & Martin, P.C., No. 14-04-00793-CV, 2006 WL 278276 , at *5 (Tex. App.—Houston [14th Dist.] Feb. 7, 2006, pet. denied) (mem. op.); Estate of Degley v. Vega, 797 S.W.2d 299 , 303 n.3 (Tex. App.—Corpus Christi–Edinburg 1990, no writ) (noting Texas Supreme Court expressly disapproved of McClung’s approach to tolling).36 We decline to apply the McClung tolling doctrine to appellants’ civil barratry claims brought under the original version of Texas Government Code section 82.0651(a). 36

2019We have substantively addressed Hughes tolling in only a handful of cases,30 but those opinions have shaped the tolling doctrine into a carefully crafted and narrowly defined rule with 27 Willis, 760 S.W.2d at 645 (citation omitted); S.V. v. R.V., 933 S.W.2d 1, 6 (Tex. 1996). 28 821 S.W.2d 154 (Tex. 1991). 29 Id. at 156 . 30 Underkofler v. Vanasek, 53 S.W.3d 343, 345-46 (Tex. 2001); Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122-23 (Tex. 2001); Am.

2021See Willis v. Maverick, 760 S.W.2d 642 , 645 n.2 (Tex. 1988); McCraine v. Chamberlain, Hrdlicka, White, Williams & Martin, P.C., No. 14-04-00793-CV, 2006 WL 278276 , at *5 (Tex. App.—Houston [14th Dist.] Feb. 7, 2006, pet. denied) (mem. op.); Estate of Degley v. Vega, 797 S.W.2d 299 , 303 n.3 (Tex. App.—Corpus Christi–Edinburg 1990, no writ) (noting Texas Supreme Court expressly disapproved of McClung’s approach to tolling).36 We decline to apply the McClung tolling doctrine to appellants’ civil barratry claims brought under the original version of Texas Government Code section 82.0651(a). 36

2021See Willis v. Maverick, 760 S.W.2d 642 , 645 n.2 (Tex. 1988); McCraine v. Chamberlain, Hrdlicka, White, Williams & Martin, P.C., No. 14-04-00793-CV, 2006 WL 278276 , at *5 (Tex. App.—Houston [14th Dist.] Feb. 7, 2006, pet. denied) (mem. op.); Estate of Degley v. Vega, 797 S.W.2d 299 , 303 n.3 (Tex. App.—Corpus Christi–Edinburg 1990, no writ) (noting Texas Supreme Court expressly disapproved of McClung’s approach to tolling).27 We decline to apply the McClung tolling doctrine to appellants’ civil barratry claims brought under the original version of Texas Government Code section 82.0651(a). 27

2005See Velsicol Chemical Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex. 1997). 7 Although Childers gave notice of his claim on March 1, 2002, as required by section 4.01(a) of the Act, which would have tolled the limitations period for 75 days per sub- paragraph (c), we conclude the tolling provision did not apply because suit was not filed until July 18, 2002, well beyond the limitations period.

2005See Velsicol Chemical Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex. 1997).

2015Taylor, 554 F.3d at 521 ; see Crown, Cork & Seal, 462 U.S. at 350-51 , 103 S.Ct. 2392 ; American Pipe, 414 U.S. at 553-54 , 94 S.Ct. 756 (observing that “a rule requiring successful anticipation of the determination of the viability of the class would breed needless duplication of motions” to intervene and “would deprive ... class actions of the efficiency and economy of litigation which is a principal purpose of the procedure”).

2015Taylor, 554 F.3d at 521 ; see Crown, Cork & Seal, 462 U.S. at 350-51 , 103 S.Ct. 2392 ; American Pipe, 414 U.S. at 553-54 , 94 S.Ct. 756 (observing that “a rule requiring successful anticipation of the determination of the viability of the class would breed needless duplication of motions” to intervene and “would deprive ... class actions of the efficiency and economy of litigation which is a principal purpose of the procedure”).

2012This court disagreed, asserting, “Hughes articulates a narrow tolling doctrine, applicable only when a lawyer commits malpractice in litigation of a claim or defense.” Id. (emphasis added).

2012Although CellTex contends that Gulf Coast, applied the tolling doctrine in a transactional context, this court interpreted Gulf Coast as matching the Hughes paradigm, asserting the tolling doctrine was applied “to prosecution of a claim in a non-judicial foreclosure sale.” Burnap, 914 S.W.2d at 147 (emphasis in original).

2001See Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex.1964)(holding that judicial dictum should be followed unless found to be erroneous); see also, Railroad Commission v. Aluminum Co. of America, 380 S.W.2d 599, 601 (Tex.1964)(declaring that dictum in earlier case was deliberately made to put others on notice of the Court’s intent).

2000See Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex.1964)(holding that judicial dictum should be followed unless found to be erroneous); see also, Railroad Commission v. Aluminum Co. of America, 380 S.W.2d 599, 601 (Tex.1964)(declaring that dictum in earlier case was deliberately made to put others on notice of the Court's intent).

2001See Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex.1964)(holding that judicial dictum should be followed unless found to be erroneous); see also, Railroad Commission v. Aluminum Co. of America, 380 S.W.2d 599, 601 (Tex.1964)(declaring that dictum in earlier case was deliberately made to put others on notice of the Court’s intent).

2000See Palestine Contractors, Inc. v. Perkins, 386 S.W.2d 764, 773 (Tex.1964)(holding that judicial dictum should be followed unless found to be erroneous); see also, Railroad Commission v. Aluminum Co. of America, 380 S.W.2d 599, 601 (Tex.1964)(declaring that dictum in earlier case was deliberately made to put others on notice of the Court's intent).

2019In Murphy v. Campbell, which involved tax litigation resulting from accountant malpractice, we held that the “[discovery] rule should apply whether the [professional] advisor is a lawyer or an accountant,” but Hughes tolling does not.43 We noted that Hughes tolling was “expressly limited . . . to attorney malpractice in the prosecution or defense of a claim that results in litigation” and had been “restricted . . . to the circumstances presented.”44 We further explained that the tolling rule did 40 Id. 41 Id. 42 Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122-23 (Tex. 2001) (discussing Sanchez v.

2007See Underkofler v. Vanasek, 53 S.W.3d 343, 347 (Tex.2001); Apex Towing Co., 41 S.W.3d at 121-23 ; Sanchez, 898 S.W.2d at 288 ; Am.

2001See Aduddell v. Parkhill, 821 S.W.2d 158 (Tex.1991); Gulf Coast Inv.

1992We consider whether the tolling rule announced in Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex.1991) and Aduddell v. Parkhill, 821 S.W.2d 158 (Tex.1991), applies when an attorney’s malpractice results in a wrongful foreclosure action by a third-party against a client.

2025See Exxon Corp., 348 S.W.3d at 207 ; PPG Indus., 146 S.W.3d at 93–94.

2025Notably, the Texas Court of Criminal Appeals has established that the proper tolling analysis is very fact specific to each case based on the substance of the facts—or lack thereof—included in the indictments that are being compared. 4 See Marks v. State, 560 S.W.3d 169, 171 (Tex. Crim.

2024For decades, Texas courts applying the Act’s limitations provision have recognized that a plaintiff “may not choose the most favorable [start] date that falls within [the Act’s] . . . categories.” Shah, 67 S.W.3d at 841 ; see Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998) (similar).

2022Ctr., L.P., 558 S.W.3d 316, 320-21 (Tex. App.— 15 Because that issue is dispositive, we need not address the remaining issues to dispose of the appeal.31 Conclusion We conclude Hampton’s attorney sent Dr. Thome a noncompliant authorization, which due to its defects never triggered the tolling exception available to other health care liability claimants who comply with the statutory requirements available in the Act.

2021In Proulx v. Wells, we confirmed this burden, recognizing that the plaintiff in Zale had produced evidence raising a fact issue. 56 “Because the plaintiff [in Zale] both pled and presented evidence of due diligence in effecting service, our holding that the defendant then bore the burden to disprove diligence as a matter of law [did] not conflict” with the plaintiff’s burden to raise a fact issue. 57 We reaffirmed this principle in Ashley v. Hawkins, in which we reiterated that it is the 54 520 S.W.2d 889, 891 (Tex. 1975) (per curiam).

2021However, in discussing the tolling principle, Hughes relied on decisions which addressed very disparate scenarios: Where “a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.” [Walker, 570 S.W.2d at 540 ] (limitations tolled while prior submission of same case was being appealed); Cavitt v. Amsler, 242 S.W. 246, 249 (Tex. App.—Austin 1922, writ dism’d) (limitations on suit for dividends tolled while suit to determine owne