Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-18-00771-CV

Gail GILLETTE,

Appellant

v.

Stephen GRAVES,

Appellee

From the 224th Judicial District Court, Bexar County, Texas

Trial Court No. 2017CI03140

Honorable Richard Price, Judge Presiding

Opinion by: Irene Rios, Justice

Sitting: Patricia O. Alvarez, Justice

Irene Rios, Justice

Beth Watkins, Justice

Delivered and Filed: November 20, 2019

REVERSED AND REMANDED

Gail Gillette sued her former lawyer, Stephen Graves, for legal malpractice. Graves moved 

for summary judgment, arguing the suit was barred by the two-year statute of limitations. The trial 

court granted summary judgment and dismissed Gillette’s suit. On appeal, Gillette argues her legal 

malpractice suit was not barred by limitations based on the tolling rule established in Hughes v. 

Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991). We reverse and remand.
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BACKGROUND

The Foreclosure Litigation

Gillette hired Graves to resolve accounting discrepancies in her mortgage payments and 

prevent her mortgage lender from foreclosing on her home. Acting on Gillette’s behalf, Graves 

filed suit against the mortgage lender on July 30, 2010. The suit asked the trial court to enjoin the 

foreclosure sale of Gillette’s home, which was set for August 3, 2010. The trial court temporarily 

enjoined the lender from foreclosing on Gillette’s home. More than two years later, Graves entered 

into an agreement with the lender and signed an agreed judgment disposing of the suit. According 

to Gillette, Graves entered into the agreed judgment without her consent. The agreed judgment 

dismissed “all of [Gillette’s] causes of action against” the lender and stated that the lender was

“entitled to a declaratory judgment that it may lawfully proceed with the foreclosure sale of the 

property.” The agreed judgment was signed by the trial court on January 8, 2013.

After the dismissal, the lender resumed foreclosure proceedings on Gillette’s home. The 

lender prepared a new notice of foreclosure. Gillette retained another lawyer, Kenneth E. Grubbs, 

to represent her. Grubbs filed suit against the lender and obtained a temporary injunction stopping 

the newly-noticed foreclosure sale of Gillette’s home. This suit was eventually dismissed because 

of the agreed judgment in the suit filed by Graves. 

Again, the lender resumed foreclosure proceedings on Gillette’s home. The lender actually 

foreclosed on Gillette’s home on December 3, 2013. The lender began eviction proceedings against 

Gillette. On March 29, 2014, Gillette, who was still represented by Grubbs, filed a wrongful 

foreclosure suit against the lender. In this suit, Gillette alleged the lender had failed to comply with 

the terms of the agreed judgment in the initial suit. Gillette obtained a temporary injunction 

preventing her eviction. Ultimately, Gillette and the lender entered into a settlement agreement

that ended the foreclosure dispute. Under the settlement agreement, the lender paid Gillette a sum 
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of money and Gillette vacated her home. The trial court signed an order dismissing the wrongful 

foreclosure suit on January 29, 2016. 

The Legal Malpractice Suit

On February 22, 2017, Gillette filed a legal malpractice lawsuit against Graves. Gillette 

alleged Graves had committed legal malpractice by entering into an agreed judgment in the first 

suit without Gillette’s consent. Graves moved for summary judgment, asserting that the two-year 

statute of limitations barred Gillette’s legal malpractice claim. Graves argued that Gillette’s legal 

malpractice claim “necessarily accrued not later than the final conclusion of the litigation in which 

[I] represented [Gillette].” Attached to the summary judgment motion was a certified copy of the 

agreed judgment in the first suit against the lender, which the trial court had signed on January 8, 

2013.

Gillette filed a response to the summary judgment motion, arguing her suit was not timebarred because the statute of limitations for her legal malpractice suit was tolled until the 

foreclosure-related litigation was resolved. Gillette further argued she did not have a viable legal 

malpractice claim until all the foreclosure litigation was finally concluded.

The trial court granted Graves’s summary judgment motion and dismissed Gillette’s legal 

malpractice suit. Gillette appealed.

STANDARD OF REVIEW

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 

862 (Tex. 2010). A summary judgment movant bears the burden to show that no genuine issue of 

material fact exists and that he is entitled to judgment as a matter of law. Provident Life & Accident 

Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A defendant moving for summary 

judgment on the ground that the plaintiff’s claim is barred by limitations must conclusively 
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establish the application of the statute of limitations, including the date when limitations began to 

run. Id. at 220.

LEGAL MALPRACTICE, LIMITATIONS, & THE HUGHES TOLLING RULE

A cause of action for legal malpractice is subject to the two-year statute of limitations. TEX.

CIV. PRAC. & REM. CODE ANN. § 16.003(a). Generally, a cause of action accrues and the statute of 

limitations begins to run when facts come into existence that authorize a party to seek a judicial 

remedy. Archer v. Tregellas, 566 S.W.3d 281, 288 (Tex. 2018). The determination of the date of 

accrual of a cause of action is a legal question that we review de novo. Ghidoni v. Skeins, 510 

S.W.3d 707, 710 (Tex. App.—San Antonio 2016, no pet.).

Texas recognizes a special tolling rule for certain categories of legal malpractice claims. 

The 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). The Hughes tolling rule as articulated in Apex states: “When an attorney commits

malpractice in the prosecution or defense of a claim that results in litigation, the statute of 

limitations on a malpractice claim against that attorney is tolled until all appeals on the underlying 

claim are exhausted or the litigation is otherwise finally concluded.” Apex, 41 S.W.3d at 119; see 

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

Our analysisis guided by three Texas Supreme Court cases: Hughes, Gulf Coast Investment

Corp. v. Brown,

1 and Apex. In Hughes, a husband and wife hired a lawyer to help them adopt a 

child. 821 S.W.2d at 155. The lawyer obtained an affidavit from the child’s biological mother 

voluntarily relinquishing her rights to the child. Id. The affidavit named the lawyer, rather than the 

husband and wife, the child’s temporary managing conservator. Id. After obtaining the affidavit, 

 1

821 S.W.2d 159 (Tex. 1991).
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the lawyer filed suit to terminate the biological parents’ parental rights. Id. However, the biological 

mother changed her mind, revoked the affidavit of relinquishment, and moved to dismiss the 

parental termination suit. Id. The biological mother argued the husband and wife lacked standing

to sue. Id. The biological mother ultimately prevailed on appeal on her standing argument and the 

husband and wife’s suit was eventually dismissed on this ground. Id. at 156.

Thereafter, the husband and wife sued their lawyer for malpractice, arguing he was 

negligent in obtaining a relinquishment affidavit that named himself, instead of his clients, the 

child’s temporary managing conservator. Id. In response, the lawyer argued the legal malpractice 

suit was barred by the two-year statute of limitations. Id. The Texas Supreme Court disagreed with 

the lawyer, holding that the statute of limitations on the legal malpractice suit was tolled until all 

the appeals on the underlying claim were exhausted. Id. at 157. In adopting this rule, the supreme 

court recognized that requiring the clients to file their legal malpractice suit earlier would have 

forced them to adopt inherently inconsistent postures in the termination appeal and in the 

malpractice suit and would have compromised their likelihood of success in both cases. Id.

Specifically, the husband and wife would have been placed in the position of claiming in their 

malpractice case that their lawyer had committed malpractice in handling their termination suit 

and that, but for his negligence, the termination suit and adoption would have succeeded. Id. On 

the other hand, in pursuing their termination appeal, they would have had to make the inconsistent 

claim that their lawyer’s actions were correct or, at least, not fatal to their claims. Id. The supreme 

court further explained its reasoning:

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 v. Hanes, 570 S.W.2d 534, 540 (Tex. Civ. App.—Corpus Christi 

1978, writ ref’d n.r.e.) (limitations tolled while prior submission of same case was 

being appealed); Cavitt v. Amsler, 242 S.W. 246, 249 (Tex. Civ. App.—Austin 

1922, writ dism’d) (limitations on suit for dividends tolled while suit to determine 
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ownership of stock was being appealed); Pease v. State, 228 S.W. 269, 270–71 

(Tex. Civ. App.—El Paso 1921, writ ref’d) (plaintiff’s cause of action in suit for 

salary did not accrue until final decision in quo warranto proceeding that defendant 

was not entitled to job); Fields v. Austin, 30 S.W. 386, 387 (Tex. Civ. App. 1895, 

writ ref’d) (cause of action for rent did not accrue until appeals exhausted on suit 

to determine title to land).

We conclude that the rationale applied in these cases is also appropriate 

when a client’s cause of action for malpractice arises during the attorney’s 

prosecution or defense of a claim which results in litigation. Limitations are tolled 

for the second cause of action because the viability of the second cause of action 

depends on the outcome of the first.

Therefore, we hold 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. We join other jurisdictions in adopting this wellreasoned rule.

Id. 

In Gulf Coast Investment Corp. v. Brown, the Texas Supreme Court extended the Hughes

rule to toll limitations during the pendency of a third-party suit rather than an appeal. 821 S.W.2d 

159, 160 (Tex. 1991). In Gulf Coast, lawyers had represented an investment company during a 

non-judicial foreclosure sale of real property. Id. After the foreclosure sale, the investment 

company was sued by the former property owners for wrongful foreclosure. Id. When the wrongful 

foreclosure suit was resolved, the investment company sued its former lawyers for their actions 

related to the foreclosure sale. Id. The Texas Supreme Court held that the malpractice suit was not 

barred by limitations because the Hughes tolling rule applied. Id. “[W]hen an attorney’s 

malpractice in conducting a non-judicial foreclosure sale of real property results in a wrongful 

foreclosure action against the client, the statute of limitations on the malpractice claim is tolled 

until the wrongful foreclosure action is finally resolved.” Id. “We see no reason why the tolling 

rule announced by this court in Hughes [] should not apply when the attorney’s malpractice results, 
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not in an appeal on the underlying claim, but in a wrongful foreclosure action by a third-party 

against the client.” Id. 

In Apex, the Texas Supreme Court further held a legal malpractice case was not removed 

from the scope of the Hughes rule, despite the hiring of new lawyers and the settlement of the 

underlying litigation. 41 S.W.3d at 120–22. The facts in Apex showed that lawyers were hired to 

defend a client in a personal injury suit. Id. at 119. After trial, the client hired additional lawyers 

to file post-judgment motions and an appeal. Id. The case settled while on appeal. Id. The client

did not file its malpractice suit until after the case was settled and the appeal was dismissed. Id.

The lawyers argued the malpractice suit was barred by limitations because the Hughes tolling rule 

no longer applied once the client hired new counsel. Id. at 120. However, the Texas Supreme Court 

rejected the argument that the Hughes tolling rule is limited to situations in which the client 

continues to be represented by the same lawyer. See id. at 121 (“[W]e reiterate that continued 

representation by the allegedly malpracticing attorney was not a requirement set out in Hughes.”). 

In Apex, the supreme court discussed Hughes’s policy considerations. Id. First, limitations 

should be tolled in the malpractice case because clients should not be forced to adopt inherently 

inconsistent litigation postures in the underlying litigation and the malpractice case. Id. Second, 

limitations should be tolled in the malpractice case because the viability of the malpractice case 

depends on the outcome of the underlying litigation. Id.

DISCUSSION

On appeal, Gillette argues the Hughes rule applied to toll the time for filing her claim.

Gillette emphasizes that her second and third foreclosure suits were filed to “undo” the harm 

Graves had done in handling the dispute with her mortgage lender, and therefore, they functioned 

like an appeal. Gillette also argues her legal malpractice action was not viable when the trial court 
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signed the agreed judgment in the initial suit on January 8, 2013, and did not become viable until 

the trial court rendered judgment dismissing the last foreclosure-related suit on January 29, 2016. 

We agree with Gillette that her legal malpractice claim against Graves fits within the 

Hughes/Apex rule, which provides: “When an attorney commits malpractice in the prosecution or 

defense of a claim that results in litigation, the statute of limitations on a malpractice claim is tolled

until all appeals on the underlying claim are exhausted or the litigation is otherwise finally 

concluded.” Apex, 41 S.W.3d at 119; see Hughes, 821 S.W.2d at 157. We note that the phrase “a 

claim that results in litigation” is construed broadly. See Sanchez v. Hastings, 898 S.W.2d 287, 

288 (Tex. 1995) (holding, in a malpractice case complaining of the lawyers’ failure to sue a 

tortfeasor in a wrongful death case, that limitations was tolled until all litigation concluded against 

other tortfeasors liable for the same indivisible injury); Gulf Coast, 821 S.W.2d at 160 (holding 

limitations on a legal malpractice suit implicating a lawyer’s actions in a non-judicial foreclosure 

sale was tolled during a subsequent suit against client for wrongful foreclosure); Estate of Whitsett 

v. Junell, 218 S.W.3d 765, 771 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (construing the 

phrase “claim that results in litigation” to include all claims for an indivisible injury that an attorney 

is hired to pursue on behalf of a client, as well as any claim the attorney must assert on behalf of 

his client in the exercise of reasonable care).

Here, Gillette hired Graves to resolve accounting discrepancies in her mortgage payments

and to prevent her mortgage lender from foreclosing on her home. The “prosecution or defense” 

of Gillette’s “claim” “result[ed] in litigation,” specifically, the filing of three foreclosure-related

suits against her mortgage lender. The litigation on Gillette’s “claim” did not “finally conclude[]”

until the trial court signed the judgment dismissing the third suit challenging the foreclosure of 

Gillette’s home. This judgment was not appealed. Therefore, the judgment dismissing the third 

suit was the terminal point in the litigation concerning the foreclosure on Gillette’s home, and 
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Gillette’s legal malpractice claim was not viable until this time. If this court were to hold to the 

contrary and conclude limitations was not tolled, Gillette would have been forced into adopting 

the “inherently inconsistent litigation postures” the Hughes court described as “untenabl[e].” 821 

S.W.2d at 156. “Specifically, had [Gillette] sued [Graves] for malpractice while seeking to” 

prevent the eviction by claiming wrongful foreclosure based on the lender’s failure to comply with 

the terms of the agreed judgment obtained by Graves in the first foreclosure proceeding, Gillette 

“would have been placed in the position of claiming that [Graves] committed malpractice in the 

handling of [the first foreclosure proceeding] and that, but for [Graves’s] negligence,” no agreed 

judgment would have been entered. In pursuing her claim of wrongful foreclosure based on the 

lender’s breach of the agreed judgment, however, Gillette “had to make the inconsistent claim that 

[Graves’s] actions were correct.” Id. at 157. As the Hughes court recognized, this type of conflict 

would compromise Gillette’s success in both suits. Id.

Graves argues the trial court properly granted summary judgment on Gillette’s legal 

malpractice claim because under Hughes, the statute of limitations on legal malpractice claims

“begins to run on the date of final adjudication of a litigated matter in which the malpractice is 

alleged to have occurred.” Graves further argues: “A fair reading of existing case law is that direct 

attack by appeal of a judgment alleged to have been entered as a result of legal malpractice tolls 

the statute of limitations on assertion of a claim for that malpractice until the appeal is concluded.”2

(emphasis in original). We disagree. The fact that Gillette pursued a remedy in the trial court and 

not the appellate court is not determinative. In Gulf Coast, the Texas Supreme Court held that a 

suit filed by a third-party against the client operated to toll limitations. 821 S.W.2d at 160. 

Additionally, the language of the Hughes tolling rule as articulated in Apex does not support 

 2

The only case Graves cites in his appellate brief is Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991).
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Graves’s argument: “[T]he statute of limitations on a malpractice claim . . . is tolled until all 

appeals on the underlying claim are exhausted or the litigation is otherwise finally concluded.” 

Apex, 41 S.W.3d at 119 (emphasis added). We conclude the Hughes tolling rule is not limited to 

situations in which a judgment is under direct attack by appeal. See Gulf Coast, 821 S.W.2d at 

160; Nowak v. Pellis, 248 S.W.3d 736, 740–41 (Tex. App.—Houston [1st Dist.] 2007, no pet.) 

(applying the Hughes rule to toll limitations until all litigation ended on the underlying medical 

malpractice claim, including the dismissal of a separate bill of review suit against one of the 

defendants).

We hold Gillette’s cause of action for legal malpractice against Graves accrued when the 

foreclosure litigation came to an end. Under the Hughes rule, Gillette’s legal malpractice claim 

did not accrue until the trial court signed the judgment dismissing the last foreclosure-related suit

on January 29, 2016.

Gillette filed her legal malpractice suit against Graves on February 22, 2017, which was 

within the two-year statute of limitations. Therefore, Gillette’s legal malpractice suit was not 

barred by the two-year statute of limitations. Because Graves failed to meet his burden to establish 

the affirmative defense of limitations, he was not entitled to summary judgment. We conclude the 

trial court erred in granting summary judgment in favor of Graves.

CONCLUSION

We reverse the trial court’s judgment and remand the case to the trial court for further 

proceedings consistent with this opinion.

Irene Rios, Justice