Affirmed in Part, Reversed and Remanded in Part, and Majority Opinion and

Concurring and Dissenting Opinion filed May 9 , 2013

.

In The 

## Fourteenth Court of Appeals

NO. 14

- 11

- 01116

- CV

RICHARD ALAN HAASE , Appellant

V. ABRAHAM, WATKINS, NICHOLS, SO RRELS, AGOSTO AND FR IEND , LLP , Appellee

On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2011

- 17970

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N I respectf ully disagree with the majority ’ s conclusion that Haase failed to sufficiently raised the Hughes tolling rule . Because I believe Haase adequately
raised the issue in his summary

- judgment response , the trial court should have recognized that the statute of limitations on Haase’s legal

- malpractice claims was toll ed until the underlying litigation was finally concluded. In light of that tolling,
all of Haase ’ s causes of actions were timely filed.2

T he Hughes tolling rule provides that “when 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 exhaus ted.” Hughes v. Mahaney & Higgins
, 821 S.W.2d 154, 157 (Tex. 1991). As the supreme court explained, one of the
rationales for the rule is that “[l] imitations are tolled for the second cause of action because the viability of the second cause of action depe nds on the outcome of the
first.” Id

. Haase’s response similarly invokes the Hughes tolling rule by arguing
that he timely filed his malpractice suit after the outcome of the underlying litigation was finally determined.

In his response, Haase complains that limitations should be tolled because he

was not sanctioned “for the legal error of Sorrels” until the federal district court’s ruling on November 29, 2007 , and he point s out that he a ppealed th at ruling and obtained an appellate

- court ruling on March 24, 2009. Haase further complain s that he “had no recoverable damages related to the lack of discovery performed by [Abraham Watkins] until Final Judgment . . . was entered on August 12,
2010

. . . .” Later in the same paragraph, Haas e explains that it was “not until the Ruling of the Court of Appeals for the Federal Circuit [on March 24, 2009
, ] that [Haase] was authorized and entitled to seek a judicial remedy.” Haase goes on to state that the applicable statute of limitations “is two (2) years,” and points out that he filed his original petition on March 23, 2011, a date within two years of the
Federal Circuit’ s ruling.
Although Haase did not cite Hughes specifically and his arguments are imprecise
, the gist of his response was t hat h is legal

- malpractice claims were timely filed because the two

- year statute of limitations was tolled during the pendenc y of the underlying litigation until at least March 24, 2009, when the3

federal appellate court ruled on the district court’s sanctions or der. T he majority
nevertheless faults Haase for conflating the general accrual rule with the discovery
rule

— even though neither is fixed on the date when claims underlying a malpractice action are exhausted. 1 In any event, to the extent the language Haase used is associated with both the legal

- injury rule and the discovery rule, it also reflects the supreme court’s attempt to balance these rules in the legal

- malpractice

context. See Apex Towing Co. v. Tolin , 41 S.W.3d 118, 1 20

– 22 (Tex. 2001). 2 For this reason, the supreme court instructed courts to “ simply apply the Hughes tolling rule to the category of legal

- malpractice cases encompassed within its definition”
without re

- examining whether the policy reasons for the rule apply in a specific

ca se. See id. at 122. Therefore, I would hold that Haase sufficiently raised the Hughes tolling rule i n his summary

- judgment response. See Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist ., 858 S.W.2d 337, 343 (Tex. 1993).
Applying th e Hughes tolling rule, I would hold that Haase’s legal

malpractice claims were timely filed
, and therefore the trial court’s summary judgment in favor of Abraham Watkins should be reversed and remanded in its

1 The majority suggests that, because Abraham Watkins lodged an object ion below to Haase’s invocation of the dis covery rule but not to the Hughes tolling rule, Abraham Watkins also must have interpreted Haase’s response as insufficient to raise the Hughes tolling rule. But a movant’s failure to object to one of two theories does not necessarily lead to this conclusi on; it is just as likely that the theory not objected to was simply overlooked. Indeed, on appeal, Abraham Watkins does not contend that Haase failed to raise the Hughes tolling rule; instead, the law firm makes a substantive argument that the policy reaso ns for applying the rule do not apply in this

case. Accordingly, one could just as easily conclude from Abraham Watkins ’s appellate brief that the law firm believes Haase sufficiently raised the rule below.

2 A lthough Haase did not cite Hughes in the portion of his response addressing the timeliness of his malpractice action, he did cite Apex Towing Co.4

entirety.

/s/ Jeffrey V. Brown Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby (Hedges, C.J., Majority)

.