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, SORRELS, AGOSTO AND FRIEND,

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 respectfully 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 

tolled until the underlying litigation was finally concluded. In light of that tolling, 

all of Haase’s causes of actions were timely filed.
2

The 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 exhausted.” 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 depends 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 points out that he appealed that ruling and 

obtained an appellate-court ruling on March 24, 2009. Haase further complains 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, Haase 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 that his legal-malpractice claims were 

timely filed because the two-year statute of limitations was tolled during the 

pendency of the underlying litigation until at least March 24, 2009, when the 
3

federal appellate court ruled on the district court’s sanctions order. The 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.1In 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, 120–22 (Tex. 2001).2For 

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 

case. See id. at 122. Therefore, I would hold that Haase sufficiently raised the 

Hughes tolling rule in 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 the Hughes tolling rule, I would hold that Haase’s legalmalpractice 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 objection below to 

Haase’s invocation of the discovery 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 conclusion; 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 reasons 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 Although Haase did not cite Hughes in the portion of his response addressing the 

timeliness of his malpractice action, he did cite Apex Towing Co.
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entirety.

/s/ Jeffrey V. Brown

Justice

Panel consists of Chief Justice Hedges and Justices Brown and Busby (Hedges, 

C.J., Majority).