Appellate Partner Argues Before Texas Supreme Court Regarding Tolling Rule for Malpractice Claim

Thompson Coe appellate partner Cassie Dallas argued before the Texas Supreme Court on January 13, 2022, in a legal malpractice case that will answer whether the Hughes tolling rule continues to toll limitations after the legal malpractice claimant stops prosecuting their appeal in the underlying case even though another party continues the appeal.

Under the Hughes tolling rule, the statute of limitations is tolled in a legal malpractice case when an attorney commits malpractice in the prosecution or defense of a claim that results in litigation. In Zive, the Dallas Court of Appeals held it does not, and that the statute of limitations runs from the date of the last right of action the legal malpractice claimant takes in the underlying litigation.

Case Background

Another party unsuccessfully pursued a writ of certiorari in the United States Supreme Court, which Zive did not join or respond to.

Zive filed his malpractice claim more than two years after the Texas Supreme Court denied his petition for review but within two years of the date the United States Supreme Court denied the other party’s Petition for Writ of Certiorari.

Court of Appeals Judgment

The Dallas Court of Appeals affirmed the judgment of the trial court, holding that tolling ended when Zive stopped prosecuting his appeal. The Court reasoned that the last action Zive could and did take in the underlying case was filing a petition for review in the Texas Supreme Court and that tolling limitations until this date was consistent with the policy rationales underlying the Hughes tolling rule.

The Court rejected Zive’s argument that he could have benefitted from the other party’s appeal to the United States Supreme Court and that the viability of his legal malpractice claim was dependent on the outcome of the other party’s appeal.

The unanimous Court of Appeals opinion drew a dissent from the denial of en banc and en banc reconsideration. Zive filed a petition for review, which the Texas Supreme Court granted.

Zive filed a petition for review, which the Texas Supreme Court has granted.