1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

____________________

N O . 09
- 1 7
- 00 498
- CV

____________________
JENNIFER ANN WEBB , Appellant
V. C.L. CRAWLEY JR. AND C.L. CRAWLEY JR., P.C. , Appellee s

_______________________________________________________ ______________ On A ppeal from the 418th District Court Montgomery County, Texas Trial Cause No
. 16
- 05
- 05473
- CV

________________________________________________________ _____________ OPINION
T his appeal arose following a trial that resulted in a take

- nothing verdict on a lawyer’s suit to collect a fee and the client’s resulting counterclaim s for malpractice
and t he alleg ed breaches of their fiduciary duties. Both parties appealed. T he lawyer complains the evidence shows he had the right to recover on h is claim for unpaid
fees. T he attorney’s former client argues the trial court should have found she was2 entitled to recover on he r counterclaims

. We conc lude the parties’ issues lack merit,

so we affirm.
I. Background
A. The Crawley Firm represent s Jennifer Webb in her divorce
I n August 2012, Jennifer Webb retained C.L. Crawley, Jr. and his firm, C.L. Crawley, Jr., P.C. ( the Crawley Firm) to represent her in a suit to divorce her husband, John Webb. Crawley, as Jennifer’s attorney, sued John alleging Jennifer
wanted a divorce. The evidence in the malpractice trial shows that Jennifer hired Crawley to represent her in her divorce. But, as the case proceeded, the firm used Jennifer Ray , an attorney who had an office at the firm, to do most of the legal work in the divorce. In larg e part, Jennifer’s breach of fiduciary duty claims focus on her allegation that
the firm never disclosed that Ray was not an employe e of the Crawley Firm. R ay began working on Jennifer’s divorce at Crawley’s request

. The testimony shows that Ray work ed for the Crawley Firm ’s clients when request ed to do so by the firm. When working for the firm’s clients , Ray charged the firm an hourly rate of less than $100 per hour based on her agreement with the firm

. T he agreement allowed Ray to represent her own cl ients

. On th o se matters , she set
her own rate and billed her clients without any oversight from the firm.3 Jennifer’s fiduciary duty claim s allege she thought Ray was an associate of
the Crawley Firm because no one told her otherwise. When the f irm billed Jennifer for its work, it billed Ray ’s time at $200 to $250 per hour , a higher figure than the

rate Jennifer claims she would have paid Ray had she hired her without going through the firm

. Shortly a fter Jennifer hired Crawley, he asked Ray to help him with Jennifer’s
divorce

. Ray progressively became more and more involved in Jennifer’s case

. At one point, Jennifer let Crawley know that she preferred deal ing with Ray

. I n April 2014, Ray represented Jennifer in a mediation to re solve the disputes in the divorce.
S everal

— but not all

— dispute s were resolved at mediation. For example, the parties
settl ed how to divide the parties’ marital estate. Jennifer gave John her community
interest in the ir home

. And Jennifer agreed to be responsible for paying the debt the couple owed the IRS for tax

- years 2011 and 2013. Several othe r disputes

— issues involving child support and visitation

— could not be resolved and were decided at
trial

. Ray appeared as Jennifer’s lawyer at a four

- day trial of the divorce

. When the trial ended, t he court orally pronounced its verdict

. Jennifer was unhappy about the
results she achieved in mediation , at trial, and about the delay s that occurred between
the trial and the date the court issued the decree

.4 In December 2014, Ray filed a motion for new trial in the divorce

. T he motion sought to set aside the judgment , mainly for two reasons. First, after the trial court signed the decree , the IRS informed Jennifer that she and John owed more for tax

year 2011 than the amount she relied on in the mediation when she had agreed to pay that debt

. Second, Jennifer’s motion alleges that after the trial court signed the
decree , she learned John had agreed to sell the couple ’ s home for a higher figure
than the figure she relied on during mediation.
I n January 2015, t he trial court started the clock on the parties’ rights to appeal
the decree by den ying the last of the parties’ motion s for new trial

. N either party appealed from the judgment , so it became final

. B. Post

- divorce, t he Crawley Firm defends Jennifer against John’s motion to enforce the decree In May 2015, J ohn filed a post

- divorce motion to enforce the decree. In it , he alleged Jennifer had not complied with he r obligations under the terms of the final
decree. After Jennifer was served with John’s motion, she contacted Ray and asked Ray to defend her in that matter

. When Jennifer contacted Ray , she was still work ing
for the Crawley Firm

. S o , Ray s till considered Jennifer to be a client of the Crawley
F irm

. The firm, with Ray acting as Jennifer’s lead lawyer, represented Jennifer at the hearing involving John ’s motion.5 In October 2015, John filed a second , post

- divorce motion to enforce . By then,
Ra y was no longer work ing for the Crawley Firm

. Jennifer hired Ray (not Crawley or his firm) to defend her against John’s second motion.
C. Jennifer refuses to pay the outstanding balance of the Crawley F irm’s bills In 2015, the Crawley Firm sent Jennifer several invoices , bill ing her for $ 13,656

. When Jennifer failed to pay the invoices, Crawley sued Jennifer to collect
the balance it alleged Jennifer owed the firm

. 1 Crawley’s suit, filed in February 2016 , assert s three claims, one for breach of contract, a second alleg ing Jennifer breach ed

a sworn account , and a third claim ing Crawley was entitled t o a quantum meruit recovery based on the unpaid fees

. D. Jennifer files counterclaims
I n late February 2017, Jennifer filed counterclaim s against Crawley and the Crawley Firm . In the counterclaims, Jennifer alleged Crawley and the Crawley F irm
committed malpractice in the divorce case and breach ed their fiduciary dut ies to her
while she was a client of the firm

. Jennifer ’s malpractice theory centers on the

manner the attorney s with the Crawl e y Firm handled her divorce. She claimed the attorney s committed malpractice b y fail ing to advise her of the benefits she could have obtained had she pursued a family

- violence finding against John

. As to its

1 The Crawley F irm assigned its interest in Jennifer’s case to Crawley.6 fiduciary duty claim s , Jennifer alleged the Crawley F irm overbilled her for its work
and failed to disclose that Ray was not an associate of the firm while it compensated
her under an agreement favor ing the firm

. In July 2017, Crawley and the Crawley Firm moved for partial summary judgment on Jennifer’s claim s. According to the motion, Jennifer’s malpractice
claim was barred by the two

- year statute of limitati on s. A nd the motion argues Jennifer could not separate he r fiduciary duty claims from her malpractice claim
with out violating the rule that prohibit s fractur ing claims

. In response to the motion , Jennifer argued several tolling theories applied to her malpractice claim, and she suggests the doctrines extend ed the deadline s governing her claim s
. 2 And Jennifer argued the rule against fracturing claims d id not apply to her fiduciary duty claim s , which she suggests rel ied on separate and distinct
facts than did her claim for malpractice.

2 See BP Am. Prod. Co. v. Marshall , 342 S.W.3d 59, 67 (Tex. 2011) (“A defendant’s fraudulent concealment of wrongdoing may toll the statute of limitations after the cause of action accrues .”); W agner & Brown , Ltd. v. Horwood , 58 S.W.3d 732, 734 (Tex. 200 1) (“ The discovery rule exception operates to defer accrual of a cause of action until the plaintiff knows or, by exercising reasonable diligence, should know of the facts giving rise to the claim. ”); Hughes v. Mahaney & Higgins , 821 S.W.2d 154, 157 (Tex. 1991) (“ [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 i s tolled until all appeals on the underlying claim are exhausted. ”).7 In mid

- September 2017 , the trial court denied Crawley and his firm ’ s m otion for partial summary judgment . A week later, the parties tried the claims and
counterclaims to the bench. Seven witnesses , includ ing Crawley, Jennifer, and Ray , testified in the trial

. When the trial ended , the trial court ordered that each party take nothing on their claims. Both parties appeal ed

. II. Standard of Review
I n their respective appeal and cross
- appeal , both sides argue the evidence is legally and factually insufficient to support the trial court’s take

- nothing verdicts

. We note t he record on appeal includes no findings of fact or conclusions of law , nor does it show that any findings were requested

. 3
W hen findings of fact and conclusions of law are not filed or requested, we imply all the necessary findings needed to support the trial court’s judgment , and we will uphold the judgment on any legal theory supported by the evidence. 4 In cases
t ried to the bench , the trial court acts as the factfinder

. 5 As the factfinder in the case,
the trial court has the right to judge the credibility of the witnesses, w eigh the

3 See Tex. R. Civ. P. 296.

4 See Holt Atherton Indus., Inc. v. Heine , 835 S.W.2d 80, 83 (Tex. 1992).

5 McGalliard v. Kuhlmann , 722 S.W.2d 694, 697 (Tex. 1986); see also City of Keller v. Wilson , 168 S.W.3d 802, 819 (Tex. 2005).8 testimony, and resolve any inconsistencies and conflicts in the evidence in reach ing
its verdict

. 6 We review the trial court’s implied findings of fact for legal and factual sufficiency , using the same standards appl ied in cases tried before juries

. 7 Here, Crawley and his firm had the burden to prov e the various claims and
affirmati ve defenses they raised in the trial

. Likewise, Jennifer had the burden of proof on he r counter claims

. Because each party had the burden of proof on their respective claims either for affirmative relief or raising affirmative defense s , each
side must establish the trial court’s verdict on their respective claims w as incorrect
as a matter of law or show the verdict is against the greater weight and preponderance
of the evidence in the t rial

. 8

6 Id

.
7 Ortiz v. Jones , 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City of Seven Points , 806 S.W.2d 791, 794 (Tex. 1991).

8 Dow Chem. Co. v. Francis , 46 S.W.3d 237, 242 (Tex. 2001) (citing Croucher v. Croucher , 660 S.W.2d 55, 58 (Tex. 1983)) ; (explaining that a party with the burden of proof on an issue must show in the appeal that the adv erse finding on its issue is against the great weight and preponderance of the evidence admitted in the trial); Raw Hide Oil & Gas, Inc. v. Maxus Expl. Co. , 766 S.W.2d 264, 275

- 76 (Tex. App.

— Amarillo 1988, writ denied) (explaining that a legal sufficiency argument, made by the party complaining about an adverse finding on which the party had the burden of proof, requires the complaining party to show the party had a right to prevail on its claim as a matter of law).9 In a legal sufficiency review, “the final test for legal sufficiency [is] whether
the evidence at trial would enable reasonable and fair

- minded people to reach the
verdict under review.” 9 In contrast, in a factual sufficiency review, we consider and weigh all the evidence and will set it aside only if the evidence support ing the factfinder’s finding is so weak as to make the verdict clearly wrong and unjust. 10 Stated another way, we are not authorized to set aside the findings the parties are challeng ing in their appeals unless the implied findings supporting the verdict are so contrary to the overwhelming weight of the evidence that the finding being challenged is clearly wrong and unjust. 11
III. Crawley’s Cross

- Appeal
A. Crawley’s b reach of c ontract c laims Liberally construed, Crawley argues t h at

— as a matter of law

— th e trial court was required by the evidence to find Jennifer breached her contract to pay fees

. Crawley also raises a factual sufficiency argument, suggesting the take

- nothing

9 See Cain v. Bain , 709 S.W.2d 176, 176 (Tex. 1986) (per curiam).

10 Id

.
11 See Plas

- Tex, Inc. v. U.S. Steel Corp. , 772 S.W.2d 442, 445 (Tex. 1989); Cain , 709 S.W.2d at 176.10 verdict on his claim for fees should be overturned because the verdict is contrary to
the great er weight and preponderance of the evidence admitted in the trial

. J ennifer disagrees with both of Crawley’s arguments as they apply to his claim
for unpaid fees . She contends the evidence shows Crawley violated the billing arrangement she h ad with the Crawl e y Firm

. And s he contends the evidence allowed
the trial court to decide the amount she paid the firm for its work represents a more than reasonable fee. To support these arguments, Jennifer points to various errors in
the firm’s bills

. Crawley agreed t here are some errors in the bills at trial. But he does not agree the firm over billed Jennifer for Ray’s work by charging Jennif er more than it paid Ray

. Under Texas law, “ [ a ] n attorney may recover unpaid hourly fees for professional services rendered under the usual rules of contract law. ” 12 T o prove a claim for attorney’s fees, the attorney who sued must show (1) the attorney and the
client had a valid agreement obligating the client to pay fees , (2) the attorney

12 See McRay v. Dow Golub Remels & Beverly, LLP , 554 S.W.3d 702, 705 (Tex. App.

— Houston [1st Dist.] 2018 , no pet. ).11 t endered performance , (3) the client breached the agreement by failing to pay a reasonable fee , and (4) damages resulted from the client’s breach. 13

“ A fee is unconscionable if a competent lawyer could not form a reasonable
belief that the fee is reasonable. ” 14 Because attorneys are prohibited by the Disciplinary Rules from charging or collecting an unconscionable fee, an attorney’s remedy against a clien t is “ subject to the prohibition against charging or collecting
an unconscionable fee. ” 15 Deciding w hether an attorney’s fee is reasonable is usually a question of fact , so it generally must be resolved by the factfinder in the trial

. 16 To
determin e whether a fee was reasonable , the factfinder

— in this case the trial court

—

c an consider evidence relevant to the representation between the attorney and the attorney’s client

. 17 These factors includ e , but are not limited to , the eight factors
outlined in Arthur Andersen & Co. v. Perry Equip ment Corp oration. 18

13 See Bank of Tex. v. VR Elec., Inc. , 276 S.W.3d 671, 677 (Tex. App.

— Houston [1st Dist.] 2008, pet. denied); Sullivan v. Smith , 110 S.W.3d 545, 546 (Tex. App.

— Beaumont 2003, no pet.).

14 Tex. Disciplinary R ules Prof’l Conduct R. 1.04(a) , reprinted in Tex. Gov’t Code Ann. tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9 ).

15 Hoover Slovacek LLP v. Walton , 206 S.W.3d 557, 56 1 (Tex. 2006)

.
16 Id

.
17 Id. at 561 n.7.12 As to his claim for fees, Crawley ’s primary argument is that Jennifer failed to present any competent evidence contradict ing his testimony that the fees his firm charged were reasonable

. He argues his testimony was clear, direct, and
uncontradicted

. And h e concludes his testimony , together with the firm’s itemized
bills , which were also in evidence , established the reasonableness of the firm’s fees

. To be sure, Crawley was an interested witness. And speaking generally, t he
uncontradicted testimony of an interested witness r aises nothing more than an issue

18 The Arthur Andersen factors are (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood

. . . that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.
Arthur Andersen & Co. v. Perry Equip. Corp ., 945 S.W.2d 812, 818 (Tex. 1997) (citing Tex. Disciplinary R ules Prof’l Conduct R. 1.04(a)).13 of fact that remains an issue to be decided by the finder of fact

. 19 But Crawley points

to caselaw explain ing , under the facts in th at case, how the testimony of an attorney on the reasonableness of attorney’s fee s can establish the fee s charged w ere reasonable as a matter of law. That can occur if the testimony was “ not co ntradicted by any other witness, or attendant circumstances, and the same is clear, direct and positive , and free from contradiction, inaccuracies, and circumstances tending to cast suspicion thereon

. ” 20 This narrow exception applie s “ when the opposing party has the means and opportunity of disproving the testimony or evidence and fails to do

so. ” 21 But even then, depending on the testimony in the trial, the testimony may
remain unreasonable, incredible, or allow the factfinder to question whethe r the testimony can be believed

. 22
In this case , the parties d o not dispute that Jennifer signed a retainer agreement
allow ing Crawley ’s firm to represent Jennifer in her divorce

. N or do the parties dispute that the Crawley Firm defended Jennifer in the first (but not t he second) of
John’s two post

- divorce motions to enforce

. And no dispute exists that Jennifer

19 See Smith v. Patrick W.Y. Tam Tr. , 296 S.W.3d 545, 547 (Tex. 2009).

20 Id. at 546 (cleaned up).

21 Id . at 547.

22 Id. at 547

- 48.14 refused to pay the full amount of the firm ’s bill s or that Jennifer paid the firm around $50,600 in fees and expenses before she terminat ed her relationship with the firm. Under Jennifer’s agreement with the Crawley F irm, Jennifer agreed to pay Crawley $350 per hour for his time, $250 per hour for the time of the firm’s
associates , and $100 for the work of the firm’s paralegal s on her case

. Under t he retainer agreement , Crawley had the right to adjust the firm’s hourly rate s annually

. In 2012, the Crawley Firm billed for Crawley’s services and a paralegal’s
services at the hourly rate s listed in the agreement

. That same year, the firm billed
for Ray ’s services at $200 per hour. In late

- January 2013, Crawley changed the rate s , bill ing Jennifer $375 per hour for his services and $250 per hour for Ray’s time

. The
firm continued to bill at the above rate s until the firm’s and Jennifer’s relationship
ended

. Given the testimony about the manner the firm used Ray on Jennifer’s case , as well as the fact the firm’s agreement with Jennifer did not define associate , the
trial court could have found Ray was an associate of the Crawley Firm for the work
she performed on Jennifer’s behalf

. At trial, Crawley explained the firm sent Jennifer invoices about once a month

. According to Crawley, Jennifer never informed the firm she was d isput ing the firm’s
invoices until he sued to collect the fees she did not pay

. The firm’s invoices a re itemized : they show who performed the work , the time for each task, and the hourly15 rate the firm charged Jennifer for each person who billed her for working on the two
matters she entrusted to the firm

. In his testimony, Crawley acknowledged the firm’s
invoices contain ed several billing error s
. H e asserted , however, the errors total $295

. According to Crawley , one of the error s occurred when the firm billed Ray’s time at
his hourly rate and billed a paralegal’s time at an associate’s rate. Crawley testified
Jennifer owed the firm around $ 13, 400 in unpaid fees after reducing the firm’s bills by the errors he acknowledged were in them

. According to Crawley, the firm’s fees

were reasonable and necessary for the work the firm did on Jennifer’s files

. Crawley ’s testimony was not , however, undisputed

. These are just some examples of the evidence that rais ed a fact issue about whether the fees were
reasonable

. First, the Crawley Firm billed Jennifer for Ray ’s time to draft a motion

to enforce, a motion to compel a psychological evaluation, an d to review an inventory and apprais al of the couple ’ s marital estate

. At trial, Ray testified she never
drafted those documents. S econd, Ray testified that four entries in the firm’s February 2014 invoice showed the firm charged Jennifer for more time than she spent on those tasks

. Third, given the Andersen factors and the evidence in this trial, the trial court had the discretion to reject Crawley’s claim that his firm’s entire fee
was reasonable

.16 We are not persuaded by Crawley’s arguments that the evidence is either legally , or factually , insufficient to support the judgment

. 23
B. Crawley’s sworn account and quantum meruit claims
T o overturn the judgment denying Crawley’s recovery on his sworn account and quantum meruit claims, Crawley a rgues the evidence is legal ly and factually
in sufficien t to support the trial court’s refusal to find in his favor on those claims

. But these arguments , like his arguments on his breach of contract claim , fail to explain why the trial court could not find , as a reasonable factfinder, that Crawley
failed to prove his claim for damages.
To recover i n a suit base d on a sworn account, the plaintiff must show the

customer failed to pay the sworn account and prove the reasonable damages that
result ed from the customer’s failure to pay the account

. 24 Crawley’s claim relies on the same evidence of damages we have already discussed

. For the same reasons we

23 See El Apple I, Ltd. v. Olivas , 370 S.W.3d 757 , 764 (Tex. 2012); Plas

- Tex , Inc., 772 S.W.2d at 445.

24 See Ellis v. Reliant Energy Retail Servs. , L.L.C ., 418 S.W.3d 235, 246 (Tex. App.

— Houston [14th Dist.] 2013, no pet.) (providing that a plaintiff may not recover on his sworn account claim unless “the amount of the account is ‘just,’ i.e., the prices charged are pursuant to an express agreement, or in the absence of an agreement, that the charges are usual, customary, or reasonable”)

.17 have discussed when address ing Crawley’s breach of contract claim , the trial court
could have also reject ed his claim that Jennifer breached a sworn account

. The trial court could also find from the evidence that Crawley failed to prove
his quantum meruit claim . “ Quantum meruit is an equitable remedy which does not arise out of a contract, but is independent of it .” 25 “Generally, a party may recover under quantum meruit only when there is no express contract covering the services
or materials furnished.” 26 In his brief, C rawley argues his quantum meruit claim is for the legal services
Jennifer received on the motion for new trial filed in her divorce case and for the

w ork the firm did defending Jennifer against the first of John’s post

- divorce motion s to enforce

. But here , the trial court could have reasonably found that $50,600 was a reasonable fee for the firm ’s wo r k including its work on these two matters

. On that
basis alone , the trial court could have refuse d to find in Crawley ’s favor on his
quan tum meruit theory of recovery

. Stated another way , the trial court could reasonably conclude Jennifer was not unjustly enriched based on her failure to pay the full fee, given that she paid the firm a reasonable fee for its work

. 27

25 Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc. , 787 S.W.2d 942, 944 (Tex. 1990) (cleaned up)

.
26 Id.18 W e overrule the legal and factual sufficiency issues Crawley raised in h is

cross
- ap peal

. IV. Jennifer’s Appeal
A. Jennifer’s m alpractice c laim In her brief, Jennifer argues the judgment awarding her nothing on her malpractice claim should be reversed

. According to Jennifer , the evidence admitted
in the trial shows the Crawley F irm committed malpractice when it fail ed to
recommend to her that she seek a family

- violence finding against John in her
divorce. Jennifer concludes that , had the firm recommend ed that strategy to her , she

w ould have taken the advice , allowing her to achieve, she claims, a better result in
he r divorce

. In his response , Crawley asserts the two

- year statute of limitations bar s Jennifer ’s malpractice claim

. 28 And Crawley contends the trial court could have
found the two

- year statute of limitations applied to and bar red that claim

. 29 As to

27 Id

.
28 See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a).

29 Id

. ; Apex Towing Co. v. Tolin , 41 S.W.3d 118, 120 (Tex. 2001) (explaining that in a malpractice case, “[l] imitations generally begins to run when the cause of action accrues, which we have determined means when facts have come into existence that authorize a claimant to seek a judicial remedy ”)

.19 limitations, Crawley suggests limitations on Jennifer’s malpractice claim began

run ning, at the latest , on January 8, 2015

. T hat was the day the trial court denied the
motion for new trial , not the day the trial court’s plenary power over the decree expired

. Crawley concludes that , by the time Jennifer counterclaim ed for malpractice on February 2 6 , 2017, the two

- year statute had expired

. In response to those arguments , Jennifer suggest s the trial court erred by failing to apply several rules that can sometimes toll or extend the statutory limitations period that applies to her claim s
. B

. Limitations and m alpractice c laims

“ To prevail on a legal malpractice claim, the plaintiff must prove the defendant owed the plaintiff a duty, the defendant breached that duty, the breach proximately caused the plaintiff ’ s injury, and the plaintiff suffered damages. ” 30 An action against an attorney for legal malpractice is governed by the two

- year statute
of limitation s
. 31 Unless some doctrine applies to toll limitations, limitations begins

to run on the plaintiff’s cause of action when a wrongful act causes the plaintiff a

30 Stanfield v. Neuba um , 494 S.W.3d 90, 96 (Tex. 2016) ( cleaned up ).

31 See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) ; Apex , 41 S.W.3d at 120.20 legal injury

. 32 This concept is commonly referred to as the legal

- injury rule

. 33 In her pleadings, Jennifer relied on the discovery rule, fraudulent concealment, and the Hughes R ule to argue that Crawley’s defense of limitations did not bar her malpractice claim s
. We briefly address the se doctrines. “T he discovery rule delays accrual until the plaintiff knew or in the exercise of reasonable diligence should have known of the wrongful ac t and resulting injury. ” 34 But t he discovery rule is “a very limited exception to statute s of limitations [,] ” as it is available only “when the nature of the plaintiff’s injury is both inherently undiscoverable and objectively verifiable.” 35 Although the discovery rule is a narrow exception to limitations, t he rule has been applied to legal malpractice cases. 36 Generally, questions surrounding when a party’s cause of action accrues for the purpose of limitations are decided as a matter

32 Schlumberger Tech. Corp. v. Pasko , 544 S.W.3d 830, 834 (Tex. 2018).

33 Id

.
34 Id. ( cleaned up ).

35 See Horwood , 58 S.W.3d at 734 ( cleaned up)

.
36 See Willis v. Maverick , 760 S.W.2d 642, 646 (Tex. 1988); see also Apex , 41 S.W.3d at 120

- 21.21 of law. 37 That said, w hen the discovery rule appl ies , question s about when the plaintiff’s injury occurred generally entail “ questions for the trier of fact.” 38
S till, t he discovery rule does not require the defendant to show the injured party knew of the actual cause of her injury or show she knew how the injury could
be cured

. 39 Instead, “ [ o ] nce a claimant learns of a wrongful injury, the statute of limitations begins to run even if the claimant does not yet know the specific cause
of the injury [,] the party responsible for it [,] the full extent of it [,] or the chances of avoiding it. ” 40 So, what we must decide is whether the evidence allowed the trial court to find that Jennifer had knowledge of facts that put her on notice that the
firm’s work o n her divorce caused Jennifer an injury more than two years before she
sued for malpractice.
Fraudulent concealment is a nother tolling doctrine that operates to delay the limitations clock from starting to run when it applies

. In case of fraud , the doctrine

37 Exxon Corp. v. Emerald Oil & Gas Co., L.C. , 348 S.W.3d 194, 202 (Tex. 2011) (citing Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 221 (Tex. 2003)).

38 Childs v. Haussecker , 974 S.W.2d 31, 44 (Tex. 1998).

39 PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship , 146 S.W.3d 79, 93 (Tex. 2004).

40 Exxon , 348 S.W.3d at 20 7 ( cleaned up ).22 delays the date limitations begins to run until the da y “ the fraud is discovered or could have been discovered with reasonable diligence. ” 41 T o establish that the
doctrine applies , the party that rel ies on the doctrine must prove t he defendant wronged the plaintiff , knew the plaintiff had been wronged, and concealed the wrong to prevent the plaintiff from discovering her injur y
. 42
The last tolling rule Jennifer relie s on is known as the Hughes Rule

. It is a special tolling rule , as it applies only to legal malpractice claims

. 43 In general, t he
H ughes R ule tolls the starting date for limitations until the judgment in the case in which the malpractice occurred becomes final even if the plaintiff has reason to
believe the attorney might have commit ted malpractice. 44 Two policy reasons exist for the Hughes R ule. First, requiring client s to sue before the judgment on the under lying case is final could force the client to take
“in herently inconsistent litigation postures in the underlying case and the client’s malpractice case. ” 45 Second, deciding whether someone has a viable malpractice

41 Shell Oil Co. v. Ross , 356 S.W.3d 924, 927 (Tex. 2011) (cleaned up).

42 Marshall , 342 S.W.3d at 67.

43 Hughes , 821 S.W.2d at 157

. 44 Id

.
45 Apex , 41 S.W.3d at 121 ; Hughes , 821 S.W.2d at 156

.23 claim usually depends on the outcome the client ultimately achieve s in the underlying litigation. 46 So, e ven when the Hughes Rule applies, it does not necessarily toll limitations until the client sues the attorney for malpractice

. 47
In stead, the rule tolls limitations on ly until “ all appeals on the underlying claim [have been] exhausted. ” 48 Consequently , we must also decide when the malpractice claim
on Jennifer’s divorce could have been exhausted.
C. Analysis of the d iscovery and f raudulent c oncealment doctrine s in Jennifer’s case Jennifer counterclaimed for malpractice on February 26, 201 7

. Because Jennifer raised the discovery rule in her pleadings , Crawley had the burden to prove
that Jennifer suffered a legal injury by at least Feb r uary 2 5 , 2015 , a date that is more than two years before Jennifer filed her malpractice claim

. H ere, the evidence
allowed the trial court to find that J ennifer knew enough to put her on notice that she suffered a legal injury more than two years before she filed her counterclaim for malpractice

.

46 Apex , 41 S.W.3d at 121 ; Hughes , 821 S.W.2d at 15 7.

47 Hughes , 821 S.W.2d at 157; see also Apex , 41 S.W.3d at 121

- 22.

48 Hughes , 821 S.W.2d at 157

.24 For instance, t here was ample evidence in the trial show ing Jennifer was very unhappy with the results of he r divorce even before the decree in the divorce became
final

. O n N ovember 14, 2013 , more than four years before Jennifer filed her
counterclaim for malpractice , she threatened to fire the Crawley F irm

. In an email
Jennifer sent Ray, Jennifer explain ed she was unhappy with the firm’s work . The
email states : I’m not the least bit happy with the way things are going at this point...I feel that you and [Crawley ] haven’t done the job I’ve hired you to do and now I’m being penalized for it ...I haven’t waivered from my initial position that the house, the kids and the dog should stay together. I’m not going to give up the house without at least attempting to fight for it...The only 2 other possibilities that I can see is to fire you and hope the judge gives me enough time to get another attorney[.]
When Jennifer discuss ed th is email at trial , she said : “I did not feel that they were advocating for me; that they were doing what was in my best interest; that, to be quite honest, I didn’t feel like they cared.” In August 2014, Jennifer sent the firm another email complaining about the
firm’s work. It state s: You kept saying just settle, just settle, just settle, you don’t want the judge to have to think about this, just settle. So I was convinced to agree to give [John] the following: $100,000 equity in the house (I kept saying the house was worth $399k and NO ONE would listen to me)

- that’s unacceptable

.25 $30,000 from my 401k

- that’s inequitable $20,000 IRS debt was all to me despite the fact that the CPA has stated that $23,832 of tax burden was directly attributable to his withdrawal of $52,961 from HIS IRA to pay HIS attorney fees

- net affect I’m paying a huge portion of his legal fees

– that’s MAJOR injustice !
He ’ s walking away on YOUR recommendation with $150k and I ’ ve got nothing financially speaking except the balance of my 401k which doesn’t help [ m ] e put a miserable roof over my kids head s... and I can ’ t even get a damned divorce decree from a hearing that occurred Apri l 25 th !
I ’ m disillusioned and I want the damned decree done yesterday so that I can figure out how to get this undone before he sells the house and blows the proceeds.
Other evidence in the trial supports the trial court’s implied finding that
Jennifer was on notice of her legal injury more than two years before she sued for malpractice

. For example, the trial court heard that Jennifer is a license d lawyer : she

was license d even before she sued John for divorce

. On this record, the trial court could have reasonably determined that Jennifer suffered a legal injury more than two years before she counterclaim ed against Crawley and his firm for malpractice

. Simply put , the evidence supports the trial
court’s implied finding s that the discovery rule and the doctrine of fraudulent26 concealment did not prevent limitations from barring Jennifer’s claim for malpractice

. 49
D. Analysis

- Hughes Rule
We also conclude the trial court could reasonably find that the Hughes Rule
did not save Jennifer’s malpractice claim from Crawley’s limitations defense

. The Crawley F irm completed work ing on Jennifer ’s divorce on February 9, 2015 , the
date the decree in Jennifer’s divorce became final

. U nder the Hughes Rule , the clock

on Jennifer’s malpractice claim start ed running on February 1 1 , 2015. 50
Jennifer suggests the Hughes Rule tolled limitations on her claim until the
date the Crawley Firm completed its work defending her against John’s post

- divorce,
motion to enforce

. But Jennifer’s malpractice theory complains about the work the

49 See Exxon , 348 S.W.3d at 209 (“ Knowledge of injury initiates the accrual of the cause of action and triggers the putative claimant ’ s duty to exercise reasonable diligence to investigate the problem, even if the claimant does not know the specific cause of the injury or the full extent of it. ”) (cleaned up).

50 Neither party appealed from the decree the trial court signed in Jennifer’s divorce

. Because m otions for new trial were filed after the trial court signed the decree, t he trial court still had plenary power over the decree for a period of ninety days after it sign ed the decree on October 30, 2014

. See Tex. R. App. P. 26.1(a). Thus, even if the grace period for filing an appeal applies in accounting for the Hughes Rule’s tolling doctrine, a matter we need not decide, Jennifer needed to pursue an appeal by no later than February 11, 2015

. See Tex. R. App . P. 26.3.27 firm did in Jennifer’s divorce : she did not sue Crawley or his firm over the manner the firm defended her against John’s post

- divorce, motion to enforce. In cases involving post

- divorce motions, which are motions filed after the
decree has become final, the post

- divorce action is treated as a different case from
the case involv ing the couple’s divorce. 51 Treating the cases as separate cases makes

sense , since post

- divorce actions cannot alter the terms in the final decree

. 52 E ven with the benefit of the Hughes Rule, Jennifer could not wait more than two years after February 11, 2015 , to sue Crawley and his firm for malpractice

. B ut Jennifer waited until February 26, 2017 to file her counterclaim, and by then, limitations
barred her claim. 53 We conclude Jennifer’s arguments suggesting the Hughes Rule saved her malpractice claims lack merit.
E. Analysis

- f

iduciary d uty c laims Last, Jennifer argues the trial court erred by rejecting her claim that Crawley
and his firm breach ed th e fiduciary duties they owed her as a client

. According to

51 See Tex. Fam. Code Ann. § § 9.001(b), 9.006(c) (Supp.)

.
52 See Tex. R. Civ. P. 329b (e); Brennan v. Manning , No. 07

- 06

- 0041

- CV, 2007 Tex. App. LEXIS 2838, at *6 (Tex. App.

— Amarillo Apr. 12, 2007 , pet. denied ) ; Washington v. Georges , 837 S.W.2d 146, 148 (Tex. App.

— San Antonio 1992 , no pet. )

.
53 See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a)28 Jennifer , Crawley and his firm breached the ir fiduciary dut ies to her by (1) billing
for Ray’s services without disclosing th at Ray was not a payroll employee of the
firm and by (2) billing for services Jennifer either did not request, the firm failed to complete , or which had no value. Jennifer ’s fiduciary duty claims focus on her billing relationship with the firm , while Jennifer’s malpractice claim focus es on the
advice Jennifer’s attorneys gave her during her divorce . According to Jennifer, her fiduciary duty claims r ely on a different set of facts than those she rel ied on to prove
her malpractice claim

. In response, Crawley argues that all of Jennifer ’s claims depend on the same
facts

. He concludes Jennifer should not be allowed to fracture what he claims is essentially a malpractice claim into multiple claims when all claims are based on the
same facts

. Under Texas law, a fiduciary relationship exists between attorneys and their
clients. 54 U nder the rule prohibiting the fracturing of claims, a client may not sue an attorney on a fiduciary duty claim when the client’s claims are based on the same
facts

. 55

54 Meyer v. Cathey , 167 S.W.3d 327, 330 (Tex. 2005).

55 Goffney v. Rabson , 56 S.W.3d 186, 190 (Tex. App.

— Houston [14th Dist.] 2001, writ denied)

. (“Texas law, however, does not permit a plaintiff to divide or fracture her legal malpractice claims into additional causes of action.”).29 The record shows that Jennifer ’s breach

- of

- fiduciary duty claims are based on different facts than the facts she relied on to support her mal practice claim. Jennifer’s fiduciary duty claim s center on t hree things, (1) the firm’s failure to disclose Ray’s employment status with the firm , (2) the manner the firm billed Jennifer for Ray’s
time , and (3) the firm’s billing practices for its work. The facts needed to prove the se claims are separate and distinct from the facts Jennifer used to claim the firm should
have advise d her to seek a family

- violence finding in her divorce. Stated another
way , Jennifer’s malpractice claim relate s to the advice (or lack of advice) Jennifer
received in he r divorce

. But Jennifer’s breach of fiduciary duty claim s address the
firm’s billing practices

— not the firm’s advice

. Because Jennifer’s claims are based
on different facts, we reject Craw le y’s argument they cannot be assert ed as separate

torts

. N ext, we address the merits of Jennifer’s complaint s about the trial court ’s
fail ure to find in her favor on her breach of fiduciary duty claims. To prevail on a breach of fiduciary duty claim , the plaintiff must prove (1) the existence of a fiduciary duty, (2) breach of the duty, (3) causation, and (4) damages. 56 Ordinarily, an attorney breaches a fiduciary duty owed to a client when the attorney improperly

56 First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 220 (Tex. 2017).30 benefits from the attorney

- client rel ationship by, among other things, failing to disclose conflicts of interest, placing personal interests above the client’s interests, engaging in self

- dealing, and misrepresenting facts. 57
E quitable remedies may be used to remedy such claims , and Jennifer sought an equitable remedy here by asking the trial court to require the firm to disgorge the
fees she paid the firm

. S ometimes , the prevailing party on a breach of fiduciary duty claim may receive monetary relief without prov ing it suffered monetary damages. 58 Upon find ing that a breach of fiduciary duty occurred , a trial court may order a forfeiture of some or all of an otherwise reasonable fee if a “clear and serious” breach
of a fiduciary duty occurred

. 59 When a forfeiture of fees is the remedy that has been sought , the factfinder must resolve “ whether or when the misconduct complained of

57 Gibson v. Ellis , 126 S.W.3d 324, 330 (Tex. App.

— Dallas 2004, no pet.) (“The essence of a claim for breach of that duty involves the ‘integrity and fidelity’ of an attorney and focuses on whether an attorney obtained an improper benefit from representing the client.”); se e also Goffney , 56 S.W.3d at 193.

58 ERI Consulting Eng’rs, Inc. v. Swinnea , 318 S.W.3d 867, 873 (Tex. 2010) (“ [ C ] ourts may fashion equitable remedies such as profit disgorgement and fee forfeiture to remedy a breach of fiduciary duty.”); see also Burrow v . Arce , 997 S.W.2d 229, 240 (Tex. 1999) (“A client need not prove actual damages in order to obtain forfeiture of an attorney’s fee for the attorney’s breach of fiduciary duty to the client.”); Parker , 514 S.W.3d at 221 (providing that a plaintiff need not necessarily prove causation and that she suffered actual damages when seeking an equitable remed y for an attorney’s breach of fiduciary duty).

59 Burrow , 997 S.W.2d at 237

.31 occurred, the attorney ’ s mental state at the time, and the existence or extent of any
harm to the client .” 60 The elements of a fee forfeiture claim require the trial court to
decide (1) whether the attorney committed a “clear and serious” breach of the duty
owed the client, (2) whether forfeiture or disgorgement of fees is appropriate based on the facts of the case, and (3) if fee forfeit ure is approp riate, the amount that must
be disgorge d or forfeit ed from the attorney’s fee. 61
For the purpose s of Jennifer’s appeal, we will assume ( without deciding ) the
trial court erred by failing to find a breach of fiduciary duty occurred. In her appeal,
Jennifer argues the proper remedy for the breach required the court to order the firm

to disgorge its entire fee

. But , we have already explained why the trial court could have concluded the

amount Jennifer paid the firm for its work , $50,600, represented a reasonable fee. While it was undisputed that the firm billed Jennifer for Ray’s work at a rate higher
than the contract rate at which Ray charged the firm , Crawley explained the reasons
that firms charge client s more than its attorneys are paid . H e testified the firm’s hourly rates include overhead , which represents the various expenses the firm
incurred in doing business

. And Crawley explained the firm paid Ray for the hours

60 Id. at 246.

61 Id.32 she billed the firm r egardless of whether the firm’s client s ultimately paid the firm ’ s bill s
. E ven more, Ray ’s testimony reflects that if Jennifer had hired her directly, Ray likely would have charged her a similar if not identical hourly rate as the one
Jennifer was charged by the firm

. During the trial , Ray testified she billed her own
clients at h ourly rate s of between $200

- $ 250 per hour

. As the factfinder , the trial

court had the discretion to find that Jennifer would have still hired the firm to represent her and agreed to the rate s reflected in the firm’s bills even had she known
that Ray was working for the firm on an as
- needed , contract basis

. As explained by t he Texas Supreme Court , the remedy of forfeiture “is not justified in each instance in which a lawyer violates a legal duty, nor is total forfeiture always appropriate. Some times, violations of fiduciary duties are either
inadvertent ” or do not cause a significant harm to the attorney’s client. 62 E ven if we

assume Jennifer established Crawley and his firm breach ed the fiduciary duties they
owed Jennifer , the trial court could have nevertheless determined that Jennifer paid
the firm a reasonable fee or that she would have paid the same fee even had she
known about Ray ’s contract with the firm

. For these reasons, we conclude the trial

62 Id . at 241.33 court could reasonably reject Jennifer ’s theory that equity required a remedy for any
violations of the duties it owed Jennifer to bill her a reasonable fee

. W e hold Jennifer failed to establish the evidence required the trial court to
render judgment in her favor on her claims

. W e further conclude the take

- nothing
verdict reject ing Jennifer’s claims for relief is a verdict that is not contrary to the overwhelming great weight and preponderance of the evidence. For these reasons,

w e overrule Jennifer ’s issues

. V. C onclusion
T he trial court ’s judgment on all claims reflects a reasonable resolution of the dispute based on the evidence admitted in the trial

. N either party established a right to prevail on their claims as a matter of law . T he trial court’s judgment is affirmed.
AFFIRME D.

_ ________________________ HOLLIS HORTON Justice

Submitted on January 29 , 2019 Opinion Delivered December 12, 2019 Before McKeithen, C.J., Kreger and Horton , JJ.