Supreme Court of Texas 

══════════

No. 20-0922 

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Youval Zive, 

Petitioner, 

v. 

Jeffrey R. Sandberg and Palmer & Manuel, P.L.L.C. f/k/a Palmer 

& Manuel, L.L.P., 

Respondents

═══════════════════════════════════════

On Petition for Review from the 

Court of Appeals for the Fifth District of Texas 

═══════════════════════════════════════

Argued January 13, 2022 

JUSTICE BUSBY delivered the opinion of the Court. 

In Hughes v. Mahaney & Higgins, we held 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.” 821 S.W.2d 154, 157 (Tex. 1991). Thus, if both the 

malpractice plaintiff and a co-party appeal the judgment on the 

underlying claim, tolling includes the time that the appeal is pending. 
2 

In this case, we must determine whether Hughes continues to toll the 

limitations period when a co-party pursues the appeal in a higher court 

but the malpractice plaintiff does not participate in that stage of the 

proceedings. We conclude that the answer is no. 

In multi-party cases, Hughes tolling includes only “all appeals” in 

which the malpractice plaintiff participates. This conclusion is 

consistent not only with Hughes and its progeny, but also with our 

precedent regarding relief for nonappealing parties and our goal of 

drawing clear lines that make it easier to calculate when the statute of 

limitations will expire. Under this approach, an appeal in Texas courts 

is “exhausted” and tolling ends when the court rules on the last action 

taken by the malpractice plaintiff. 

Applying these principles here, we conclude that Hughes tolling 

ended for petitioner’s legal malpractice claim on April 1, 2016, when this 

Court denied his petition for review of the underlying case. Although 

petitioner’s co-party sought further appellate review by filing a petition 

for writ of certiorari in the Supreme Court of the United States, 

petitioner did not participate in that proceeding. Because petitioner did 

not file this suit until October 1, 2018, his claim for legal malpractice is 

barred by the two-year statute of limitations. We agree with the court 

of appeals that the malpractice defendant conclusively established the 

limitations bar, and we therefore affirm. 

BACKGROUND

In 2007, City Bank loaned Grapevine Diamond, LP, over six 

million dollars. Grapevine Diamond used the funds to purchase ten 

acres of undeveloped real estate in Grapevine, Texas, from Jonathan 
3 

Aflatouni. Grapevine Diamond secured the loan by executing a 

promissory note and first lien deed of trust covering the land. Petitioner 

Youval Zive, a real estate developer and president of Grapevine 

Diamond’s general partner, also guaranteed the loan personally.1 

After Grapevine Diamond defaulted and filed for bankruptcy, 

City Bank initiated a trustee’s foreclosure sale of the land. According to 

Zive, irregularities in the sale resulted in the property being sold for 

substantially less than the loan balance. To recover the deficiency, City 

Bank sued Zive and another guarantor, Nasser Shafipour. Shafipour 

filed third-party claims against Aflatouni and Grapevine Diamond, both 

of whom asserted cross-claims against City Bank. 

In the underlying deficiency litigation, respondents Jeffrey R. 

Sandberg and Palmer & Manuel, P.L.L.C., (together, Sandberg) 

represented both Aflatouni and Zive. City Bank moved for summary 

judgment, and the trial court ordered the parties to participate in 

mediation. During mediation, City Bank offered to settle for a mutual 

“walkaway”: if Aflatouni and Zive agreed to dismiss their claims against 

City Bank, City Bank would dismiss its claims against them. 

City Bank’s settlement attempt failed, but Zive and Sandberg 

disagree about why that occurred. Although Zive “strongly urged” 

1 Grapevine Diamond later borrowed additional funds from City Bank, 

and the parties executed loan-modification agreements in 2008 and 2009. Zive 

signed the 2009 loan-modification agreement as guarantor and as president of 

Grapevine Diamond’s general partner. Because neither the 2007 guaranty 

agreement nor the 2009 loan-modification agreement is part of the summary 

judgment record, it is unclear what type of guaranty Zive provided. See Ford 

v. Darwin, 767 S.W.2d 851, 854 (Tex. App.—Dallas 1989, writ denied) 

(distinguishing between guaranty of payment and guaranty of collection). 
4 

Sandberg to accept the settlement offer, Sandberg allegedly declined to 

do so on the ground that Aflatouni could obtain a large recovery on his 

affirmative claims. For his part, Sandberg asserts that he never 

counseled Zive against accepting the offer. He contends that City Bank 

offered to settle only if both Aflatouni and Zive agreed to do so, and 

therefore it was Aflatouni’s decision to forgo settling—not Sandberg’s 

failure to accept the settlement offer on Zive’s behalf—that doomed the 

settlement negotiations. 

Sandberg withdrew as Zive’s counsel, purportedly because “an 

unresolvable conflict had arisen between Aflatouni and Zive.” 

Subsequent court-ordered mediation efforts were futile. The trial court 

eventually granted summary judgment for City Bank in the deficiency 

suit. Zive, Aflatouni, and Grapevine Diamond appealed, and the court 

of appeals affirmed the trial court’s judgment. See Grapevine Diamond, 

L.P. v. City Bank, No. 05-14-00260-CV, 2015 WL 8013401, at *1 (Tex. 

App.—Dallas Dec. 7, 2015, pet. denied) (mem. op.). 

Aflatouni and Grapevine Diamond then filed a petition for review 

in this Court, and Zive filed his own separate petition. On April 1, 2016, 

we denied both petitions. Aflatouni and Grapevine Diamond filed a 

motion for rehearing, but Zive did not take any further action with 

respect to his petition. We denied rehearing of Aflatouni and Grapevine 

Diamond’s petition for review on May 20, and the court of appeals issued 

its mandate on May 25, 2016. 

A few months later, Aflatouni and Grapevine Diamond filed a 

petition for a writ of certiorari in the Supreme Court of the United 

States. Aflatouni and Grapevine Diamond’s petition identified Zive as 
5 

a party to the proceedings below. See Petition for Writ of Certiorari at 

iii, Grapevine Diamond, L.P. v. City Bank, 137 S. Ct. 250 (2016) (No. 16-

225), 2015 WL 8013401. Zive did not file a document or otherwise 

attempt to participate in the Supreme Court proceedings. The Supreme 

Court denied Aflatouni and Grapevine Diamond’s certiorari petition on 

October 3, 2016. 

On October 1, 2018, Zive filed this suit against Sandberg for legal 

malpractice.2 Sandberg moved for traditional summary judgment, 

arguing that Zive’s malpractice claim accrued on April 1, 2016, the date 

on which this Court denied his petition for review, and therefore 

limitations barred his claim. In response, Zive contended that Hughes 

tolled the running of limitations until October 3, 2016, when the U.S. 

Supreme Court denied Aflatouni and Grapevine Diamond’s petition for 

certiorari. The trial court granted Sandberg’s motion for summary 

judgment and rendered a take-nothing judgment. 

The court of appeals affirmed, holding that Hughes tolling ended 

on April 1, 2016, and therefore Sandberg conclusively established that 

Zive’s malpractice claim was barred by limitations. 610 S.W.3d 44, 51 

(Tex. App.—Dallas 2020). Zive argued that Hughes tolling extended 

through the denial of the certiorari petition because, had the petition 

succeeded, it would have set aside the judgment that injured him. The 

2 Zive also asserted a claim for breach of fiduciary duty, and the trial 

court granted Sandberg’s motion for summary judgment on that claim. On 

appeal, Zive did not challenge the judgment with respect to the claim for breach 

of fiduciary duty, so the court of appeals affirmed that portion of the judgment. 

See 610 S.W.3d 44, 47–48 (Tex. App.—Dallas 2020); see also Jacobs v. 

Satterwhite, 65 S.W.3d 653, 655–56 (Tex. 2001) (per curiam). 
6 

court disagreed. Noting that Hughes focused on the “last action of right” 

taken by the malpractice plaintiff, the court concluded that Hughes 

tolling applies only to an appeal of “the underlying claim asserted by or 

against the legal malpractice plaintiff.” Id. at 49 (citing Hughes, 821 

S.W.2d at 158 n.6). 

Justice Schenck dissented. Id. at 51. Citing the need for a brightline rule, he argued that Hughes tolling should end “when no party to 

the litigation is able to seek further, direct appellate relief.” Id.

(Schenck, J., dissenting from denial of en banc consideration); see also 

id. at 53 (“[F]inality, as that term is commonly understood, includes the 

period during which the judgment is still open to direct review, whether 

that available avenue for relief is invoked or not.”). Under Justice 

Schenck’s approach, Hughes tolling would encompass “continuing (but 

unutilized) available remedies, . . . includ[ing] the period for seeking 

rehearing and certiorari.” Id. at 54. 

Regarding multi-party cases, Justice Schenck contended that 

appeals of the underlying claim are not “exhausted” until (1) “there has 

. . . been a clear and irrevocable declaration that the absent party could 

not benefit from the result of further proceedings and the litigation . . . 

has not ‘otherwise finally concluded,’” or (2) “the proceeding comes to 

final rest with relief on direct review no longer available as to any of the 

parties to [the] last judgment.” Id. at 55. The court’s approach, 

according to Justice Schenck, “undermine[d] the seeming clarity of the 

start date specified by Hughes and its progeny.” Id. 

Zive filed a petition for review, which we granted. 
7 

ANALYSIS

I. Standard of review 

“We review summary judgments de novo, viewing the evidence in 

the light most favorable to the non-movant, crediting evidence favorable 

to the non-movant if reasonable jurors could, and disregarding contrary 

evidence unless reasonable jurors could not.” Erikson v. Renda, 590 

S.W.3d 557, 563 (Tex. 2019). Where, as here, a defendant moves for 

traditional summary judgment, it must demonstrate that “there is no 

genuine issue as to any material fact” and that it is “entitled to judgment 

as a matter of law.” TEX. R. CIV. P. 166a(c). “[T]o obtain traditional 

summary judgment on a limitations defense, the defendant must 

conclusively prove (1) when the cause of action accrued, and (2) that the 

plaintiff brought its suit later than the applicable number of years 

thereafter—i.e., that ‘the statute of limitations has run.’” Draughon v. 

Johnson, 631 S.W.3d 81, 89 (Tex. 2021) (quoting Provident Life & 

Accident Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2004)). 

As we recently explained in Draughon, a limitations dispute may 

require a court to decide “which days count toward the running of 

limitations,” or whether equitable defenses allow the suit to proceed 

even though the limitations period has run. Id. at 88–89. Hughes tolling 

belongs to the former category. Id. at 90. Thus, when the plaintiff 

contends that Hughes tolling applies, the burden is on the defendant to 

conclusively negate Hughes’s applicability. Id.; Erikson, 590 S.W.3d at 

563. Only after the defendant does so is the plaintiff required to produce 

evidence raising a fact issue. Draughon, 631 S.W.3d at 96. 
8 

II. Hughes tolling extends only through appellate 

proceedings in which the malpractice plaintiff 

participates. 

Claims for legal malpractice are subject to a two-year statute of 

limitations. TEX. CIV. PRAC. & REM. CODE § 16.003(a); Erikson, 590 

S.W.3d at 563. Generally, “[a] cause of action for legal malpractice 

accrues when the client sustains a legal injury or, in cases governed by 

the discovery rule, when the client discovers or should have discovered 

the facts establishing the elements of a cause of action.” Hughes, 821 

S.W.2d at 156. 

But in Hughes, we held 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.” Id. at 157. Unlike the legal-injury rule and discovery rule, 

which affect when a claim accrues, Hughes tolling is an equitable 

doctrine that tolls the running of limitations from the date of accrual 

through the date all appeals are exhausted. See id. at 156–57. 

Hughes recognized an “untenab[le] . . . conflict” in cases where 

“an attorney commits malpractice while providing legal services in the 

prosecution or defense of a claim which results in litigation.” Id. at 156. 

In such cases, the period during which the plaintiff must file his 

malpractice suit often overlaps with his appeals in the underlying 

litigation affected by the alleged malpractice. See id. at 157. To prevail 

in both proceedings, the malpractice plaintiff must simultaneously 

assail and defend his attorney’s actions in the underlying case. Id. This 
9 

compulsory contradiction is the first of two policy concerns underlying 

the Hughes tolling rule. Id.

Hughes’s second policy rationale for tolling is that the viability of 

the malpractice claim depends on the outcome of the underlying case.3 

Id. Because a claim for legal malpractice is one for negligence, the 

malpractice plaintiff must establish the traditional elements of duty, 

breach, causation, and damages. See Peeler v. Hughes & Luce, 909 

S.W.2d 494, 496 (Tex. 1995). Without Hughes, a situation could arise in 

which a party injured by a judgment in Case 1 appeals that judgment 

and also timely files Case 2 alleging malpractice by his attorney. At the 

time Case 2 is filed, the malpractice plaintiff can point to the judgment 

in Case 1 to show damages from the alleged malpractice. Cf. Pace Corp. 

v. Jackson, 284 S.W.2d 340, 348 (Tex. 1955) (noting that uncertainty as 

to amount of damages, unlike uncertainty as to existence of damages, is 

not fatal to recovery). 

While appeals in Case 1 are ongoing, the malpractice plaintiff 

could win Case 2 and obtain a judgment against his former attorney. 

But if the plaintiff subsequently succeeded in his appellate efforts to 

3 Although we have discussed the “inconsistent positions” rationale for 

Hughes tolling over the years, we have had little occasion to comment further 

on this “viability” rationale. Some courts of appeals have concluded that 

Hughes tolls the limitations period while the underlying proceedings are 

pending because “the pursuit of the second suit prior to [the underlying case’s] 

outcome would either be improper or result in judicial complications.” Rogers 

v. Ricane Enters., Inc., 930 S.W.2d 157, 167 (Tex. App.—Amarillo 1996, writ 

denied). In this same vein, courts have suggested that the underlying action 

constitutes a “legal impediment” to the malpractice suit. See El Pistolon II, 

Ltd. v. Levinson Alcoser Assocs., L.P., 627 S.W.3d 494, 499–500 (Tex. App.—

Corpus Christi–Edinburg 2021, pet. filed) (collecting cases). 
10 

overturn the judgment in Case 1, his injury from the malpractice would 

be reduced or even disappear.4 Thus, having succeeded in both Case 1 

and Case 2, the malpractice plaintiff would receive a windfall. This 

windfall—along with any subsequent litigation aimed at upholding or 

overturning it—is easily avoided by tolling the statute of limitations so 

that the malpractice plaintiff can file his suit after Case 1 is “finally 

concluded.” 

In Hughes, tolling ended when this Court overruled the 

malpractice plaintiffs’ motion for rehearing on the appeal of the 

underlying claim because it was a court’s ruling on “the last action of 

right” that the plaintiffs “could take and did take” with respect to the 

underlying suit. See Hughes, 821 S.W.2d at 158 n.6. We have since 

clarified that Hughes tolling applies “until all appeals on the underlying 

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

Apex Towing Co. v. Tolin, 41 S.W.3d 118, 119 (Tex. 2001) (emphasis 

added); see id. at 123 (holding underlying litigation “was not finally 

concluded until . . . the court of appeals issued its order dismissing [the] 

appeal” due to settlement). And for malpractice claims arising out of 

criminal representation, we have held that Hughes tolling encompasses 

not only direct appeals but also post-conviction proceedings. Gray v. 

Skelton, 595 S.W.3d 633, 640 (Tex. 2020). 

Relying on Apex Towing and Gray, Zive argues that “all appeals” 

include those of co-parties, even when the malpractice plaintiff does not 

4 See Laird v. Blacker, 828 P.2d 691, 704 (Cal. 1992) (Mosk, J., 

dissenting) (“The status of the malpractice claim is uncertain until the appeal 

in the underlying case is resolved, because if it is ultimately decided in the 

client’s favor the malpractice suit may well become moot for lack of damages.”). 
11 

participate in them. Neither Hughes nor our post-Hughes cases address 

whether Hughes tolling applies when the malpractice plaintiff does not 

participate in a co-party’s appeal of the underlying case. 

“[I]n the area of limitations, bright-line[] rules generally 

represent the better approach.” Apex Towing, 41 S.W.3d at 122. Indeed, 

we have advised courts to apply the Hughes tolling rule categorically. 

Id. Because Hughes tolling is applied in a “clear and strict” manner, see 

id., we strive for clarity as we interpret its scope. Although we do not 

“parse the language in our opinions like the words in a statute,” 

Hughes’s language still informs our analysis. Erikson, 590 S.W.3d at 

566. 

Our focus in Hughes was the court’s ruling on the “last action of 

right” taken by the malpractice plaintiff. See 821 S.W.2d at 158 n.6. 

This approach suggests that in multi-party cases such as this one, the 

focus should be on the court’s ruling on the last action taken by the 

malpractice plaintiff rather than the last action taken by a co-party. 

Accordingly, for Hughes tolling to encompass the entire time that 

appellate proceedings initiated by a co-party are pending, the 

malpractice plaintiff must continue to participate in those proceedings. 

We adopt this rule for three reasons. 

First, this rule provides a forward-looking bright line that makes 

it easy for parties and counsel to calculate the deadline for filing a 

malpractice suit. Likewise, the rule makes it easy for adverse parties 

and courts to determine whether such a suit is barred by limitations. 

See Apex Towing, 41 S.W.3d at 122. Although we acknowledge that 

Zive’s proposed rule—applying Hughes to any party’s appeal of the 
12 

underlying litigation—is also a bright-line rule, it would broaden the 

Hughes tolling rule significantly. Hughes tolling only extends through 

the exhaustion of “all appeals on the underlying claim” allegedly 

affected by malpractice—that is, all appeals involving a cause of action 

by or against the malpractice plaintiff, not every appeal addressing any 

claim in the case.5 821 S.W.2d at 157 (emphasis added). We previously 

declined to broaden the Hughes exception to limitations, see Murphy v. 

Campbell, 964 S.W.2d 265, 272 (Tex. 1997), and we decline to do so again 

today. 

Second, this rule does not impose a significant burden on the 

malpractice plaintiff, who may continue to participate in any appellate 

proceedings simply by filing a short document joining or adopting his coparty’s positions. Our procedural rules allow “[a]ny party” to “join in or 

adopt by reference all or any part of a brief, petition, response, motion, 

or other document filed in an appellate court by another party in the 

same case.” TEX. R. APP. P. 9.7. Similarly, a party to the underlying 

appellate proceedings can qualify for relief in the U.S. Supreme Court 

by filing a document. See SUP. CT. R. 12.6.6

5 Hughes tolling also encompasses an appellate proceeding initiated by 

an adverse party that challenges a trial or appellate judgment in favor of the 

malpractice plaintiff. Cf. Hughes, 821 S.W.2d at 156, 158 (tolling limitations 

through adverse party’s successful appeal of trial court’s judgment favoring 

malpractice plaintiffs and this Court’s denial of malpractice plaintiffs’ 

application for writ of error). But in multi-party cases, Hughes tolling does not 

apply to an appeal by or against a co-party in which the malpractice plaintiff 

does not participate. 

6 As a party in the Texas appellate proceedings on the underlying claim, 

Zive was considered a respondent in the U.S. Supreme Court proceedings 

initiated by Aflatouni and Grapevine Diamond’s petition for certiorari. See 
13 

Third, the rule requiring the malpractice plaintiff’s participation 

in an appeal to continue tolling is consistent with the principle that a 

reversal on appeal as to one party generally does not warrant a reversal 

as to nonappealing parties. See Plas-Tex, Inc. v. U.S. Steel Corp., 772 

S.W.2d 442, 446 (Tex. 1989). When the malpractice plaintiff fails to 

participate in an appeal of the underlying case, Hughes does not toll 

limitations during a co-party’s appeal because the outcome generally 

will not change with respect to the nonappealing malpractice plaintiff. 

As Zive points out, there are cases in which “the rights of the 

appealing and nonappealing parties are so interwoven or dependent on 

each other as to require a reversal of the entire judgment.” Id. And in 

these cases, a reversal as to an appealing co-party may extend to 

nonappealing parties. See, e.g., Ex parte Elliot, 815 S.W.2d 251, 251–52 

(Tex. 1991) (per curiam) (applying Plas-Tex exception to expunction case 

in which only one agency appealed); Turner, Collie & Braden, Inc. v. 

Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex. 1982) (reversing judgment 

and remanding entire case where claims turned on same jury finding 

because “the result of the second trial could be inconsistent with the 

result of the first trial”). 

Citing Plas-Tex, Zive proposes yet another alternative rule: 

Hughes tolling should encompass a co-party’s appeal when the 

SUP. CT. R. 12.6. But Zive did not file anything in the U.S. Supreme Court 

within the response time specified in the applicable rule, so he did not qualify 

to receive any relief that the parties to that petition could have received. See 

id.; cf. United States v. Padilla, 508 U.S. 77, 79 n.1 (1993) (applying Rule 12.6’s 

predecessor to conclude that although respondents’ co-conspirator was 

technically a respondent, court would not address portion of case affecting him 

because he did not “file a petition challenging that decision”). 
14 

appealing and nonappealing parties’ rights are “interwoven.” He argues 

that if Aflatouni and Grapevine Diamond had succeeded in the U.S. 

Supreme Court, the foreclosure sale upon which the deficiency judgment 

against Zive was based would have been set aside. Thus, he contends 

that Hughes tolling continued while Aflatouni and Grapevine Diamond’s 

certiorari petition was pending. 

We acknowledge that the rule adopted today could result in a 

scenario in which the malpractice plaintiff succeeds on his or her claim, 

but a co-party’s appeal of the underlying case later reduces or eliminates 

the damages caused by the malpractice. Yet incorporating the factspecific Plas-Tex exception into the Hughes analysis would 

overcomplicate what should be a “clear and strict” and “categorical” rule. 

Erikson, 590 S.W.3d at 559. 

There also seems little need to complicate Hughes tolling to 

accommodate the Plas-Tex exception, as Texas appellate courts do not 

apply that exception frequently.7 In addition, the trial court handling 

the malpractice claim could address the windfall risk in cases where the 

Plas-Tex exception applies by staying or abating the malpractice case 

until the co-party’s appeals are exhausted or the litigation is otherwise 

finally concluded. See Dolenz v. Cont’l Nat’l Bank of Fort Worth, 620 

S.W.2d 572, 575 (Tex. 1981) (“A court, in exercise of its sound discretion, 

7 In the past ten years, for instance, courts of appeals have found the 

Plas-Tex exception applicable only three times. See Zaidi v. Shah, 502 S.W.3d 

434, 447 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); Smith v. Philley, 

No. 02-12-00478-CV, 2014 WL 345631, at *2 (Tex. App.—Fort Worth Jan. 30, 

2014, no pet.) (mem. op.); U.S. Fire Ins. Co. v. Lynd Co., 399 S.W.3d 206, 220 

(Tex. App.—San Antonio 2012, pet. denied). 
15 

may abate an action for reasons of comity, convenience and orderly 

procedure . . . .” (quoting Timon v. Dolan, 244 S.W.2d 985, 987 (Tex. 

App.—San Antonio 1951, no writ))). 

III. Because Hughes tolling ended when this Court denied 

Zive’s petition for review, limitations bars Zive’s 

malpractice claim. 

Applying Hughes here, tolling for Zive’s malpractice claim ended 

on April 1, 2016, when this Court denied Zive’s petition for review. 

Aflatouni and Grapevine Diamond filed a motion for rehearing in this 

Court, but Zive did not. Aflatouni and Grapevine Diamond then filed a 

petition for writ of certiorari, but Zive did not participate in the U.S. 

Supreme Court proceedings. 

Because Zive did not file his malpractice suit until October 1, 

2018, Sandberg has conclusively shown that this suit is barred by the 

two-year statute of limitations. Thus, the trial court properly granted 

Sandberg’s motion for summary judgment, and the court of appeals 

correctly affirmed that judgment. 

Despite refining Hughes over the years, we have not had occasion 

to provide much guidance on how to determine the terminal point of the 

underlying litigation—that is, when all appeals are “exhausted” or the 

litigation is “otherwise finally concluded.” See, e.g., Gray, 595 S.W.3d at 

640 (tolling until date Court of Criminal Appeals issued mandate 

denying review in underlying case and from date habeas application was 

filed until charges were dismissed); Apex Towing, 41 S.W.3d at 123 

(tolling until date court of appeals dismissed appeal of underlying case); 

Hughes, 821 S.W.2d at 158 (tolling until date this Court denied 

rehearing in appeal of underlying case, which was sufficient to render 
16 

suit timely without addressing continuing availability of review). We 

take the opportunity to do so here as guidance for future cases. Cf. 

Goode v. Shoukfeh, 943 S.W.2d 441, 449 (Tex. 1997). 

For an appeal in Texas courts, we conclude it is most appropriate 

for Hughes tolling to end when the court in which the case is pending 

rules on the last action taken by the malpractice plaintiff. Applying this 

rule here, tolling ended when this Court denied Zive’s petition for 

review, as that was the ruling on the last action taken by Zive.8 Not 

only is this rule consistent with Hughes, where we focused on the date 

on which the “last action of right” taken by the malpractice plaintiffs 

was “concluded” by a court ruling, 821 S.W.2d at 158 n.6, it also 

advances our efforts to maintain “predictability and consistency” in our 

limitations jurisprudence. See Erikson, 590 S.W.3d at 566 (quoting Apex 

Towing, 41 S.W.3d at 122). 

We acknowledge that there are other potential terminal points for 

the litigation that could be selected, such as the date of the mandate’s 

issuance or the expiration of the deadline to file a notice of appeal or to 

8 This rule can be applied in any court that finally resolves a claim by 

or against the malpractice plaintiff. For example, if Zive had filed a motion for 

new trial challenging the trial court’s judgment in the underlying litigation but 

had not filed a notice of appeal, Hughes tolling would have ended when the 

trial court denied the motion (either expressly or by operation of law). If Zive 

had filed a motion for rehearing in this Court, tolling would have ended when 

we denied rehearing or, if we granted rehearing and granted the petition, when 

we issued a judgment. And if, as part of that judgment, we chose to remand 

the case, then tolling would have ended when the claim was resolved on 

remand. Similarly, had Zive filed a certiorari petition or other document in 

the U.S. Supreme Court, Hughes tolling would have ended when certiorari was 

denied or, if the Supreme Court granted certiorari and ordered a remand, when 

the claim was finally resolved on remand. 
17 

initiate appellate proceedings in a higher court.9 But these approaches 

would complicate the process of determining when Hughes tolling ends, 

thereby undermining our goal of ensuring predictability. See id. Tying 

the end of Hughes tolling to the expiration of time to file a notice of 

appeal or petition for review, for example, would require courts and 

litigants to pinpoint a date when an action did not occur by considering 

(among other things) the type of judgment appealed, the court to which 

that judgment was appealed, and whether an applicable rule extended 

the deadline. See, e.g., TEX. R. APP. P. 26.1–26.3, 53.7.10 Using the date 

of the mandate’s issuance might appear simpler by comparison, but it 

would similarly require courts and litigants to focus on a seemingly 

arbitrary point subject to fluctuation. See TEX. R. APP. P. 18.2, 18.7.11 

Such complicated analyses are inappropriate in the context of Hughes 

tolling. Just as the analysis of whether Hughes tolling applies to a coparty’s appeal focuses on the malpractice plaintiff’s participation in that 

9 E.g., Thomas v. Hillyard, 445 P.3d 521, 527 (Utah 2019) (tolling 

limitations until “expiration of the time to file an appeal” or, if appeal was filed, 

date of appeal’s resolution); Branch Banking & Tr. Co. v. Gerrard, 432 P.3d 

736, 739 (Nev. 2018) (using date Nevada Supreme Court issued remittitur in 

underlying case). 

10 We also recognize that our rule does not continue tolling during the 

period in which the judgment is open to review that the malpractice plaintiff 

ultimately decides not to pursue, and thus (for example) would not include a 

granted extension of time to file a notice of appeal or petition for review that 

the plaintiff later decides not to file. Such periods are typically brief, and the 

malpractice plaintiff has two years from the date Hughes tolling ends to decide 

whether to file his or her malpractice suit. 

11 In addition, if a co-party files a petition for review in this Court but 

the malpractice plaintiff does not, the mandate may not issue until long after 

appellate proceedings on the claim by or against the malpractice plaintiff were 

finally concluded in the court of appeals. See TEX. R. APP. P. 18.1. 
18 

appeal, the determination of when litigation is “finally concluded” 

hinges on the relevant court’s resolution of the malpractice plaintiff’s 

last action on the underlying claim. Thus, the date Hughes tolling ends 

is the date on which the court where the underlying claim is pending 

rules on the malpractice plaintiff’s last action regarding that claim. 

CONCLUSION

In Hughes, we held that the statute of limitations for a 

malpractice claim is “tolled until all appeals on the underlying claim are 

exhausted.” 821 S.W.2d at 157. We conclude Hughes tolling applies 

only to all appeals in which the malpractice plaintiff participates. Here, 

Hughes tolling for Zive’s legal-malpractice claim ended on April 1, 2016, 

so Zive’s malpractice suit—filed over two years later—is barred by 

limitations. We agree with the court of appeals that Sandberg 

conclusively established that limitations bars Zive’s malpractice claim, 

and we therefore affirm the court of appeals’ judgment. 

 

 J. Brett Busby 

 Justice 

OPINION DELIVERED: April 22, 2022