Opinion issued November 6, 2014




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-00837-CV
                           ———————————
                         BOSHENG WEN, Appellant
                                       V.
                        KRISTOPHER AHN, Appellee


                   On Appeal from the 125th District Court
                            Harris County, Texas
                      Trial Court Case No. 2013-23553


                         MEMORANDUM OPINION

      Appellant, Bosheng Wen, sued appellee, Kristopher Ahn, for legal

malpractice. Ahn moved for summary judgment on limitations grounds, and the

trial court granted summary judgment, issuing a final order that Wen take nothing
by his claims. In his sole issue on appeal, Wen argues that the trial court erred in

granting summary judgment.

        We affirm.

                                   Background

        Wen is the owner of Wen’s Royal Remodeling, Inc., a remodeling company

that did some work remodeling a restaurant, DN Development Co. d/b/a Café 121

Chinese Restaurant. The relationship between Wen and the principals of DN

Development deteriorated, culminating in an incident on July 14, 2008. Wen

claimed that he was assaulted by DN Development’s agents, and DN Development

claimed that Wen unsuccessfully tried to remove property from DN

Development’s premises but that he left the property and never returned after one

of DN Development’s agents called the police. DN Development filed suit against

Wen’s Royal Remodeling, Inc., alleging breach of contract, and Wen counter-sued

for assault (“the DN Development suit”).

        Ahn was the second attorney to defend Wen in the DN Development suit.

Wen, acting through Ahn, tried the DN Development suit to a jury on April 20,

2010.    On July 5, 2010, the trial court rendered judgment in favor of DN

Development based on the jury’s findings. Ahn continued to represent Wen until

August 4, 2010, when the trial court granted an order substituting new counsel for

Wen. Wen subsequently appealed the judgment in the DN Development suit



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through his new counsel, and on December 6, 2011, the Fourteenth Court of

Appeals issued a memorandum opinion affirming the trial court’s judgment. See

Wen’s Royal Remodeling, Inc. v. DN Dev. Corp., No. 14-10-00919-CV, 2011 WL

6042845, *1–2 (Tex. App.—Houston [14th Dist.] Dec. 6, 2011, no pet.).

However, the record in this appeal does not contain any discussion of the appeal of

the DN Development suit, nor does the record contain a copy of the opinion,

judgment, or mandate from the DN Development appeal.

      On April 19, 2013, Wen, representing himself pro se, filed his original

petition against Ahn for legal malpractice arising out of the legal services Ahn

provided in the DN Development suit.              Wen alleged that Ahn failed to

communicate with him and that Ahn used an unreasonable trial strategy, which

resulted in Wen’s suffering $200,000 in damages.            Wen’s pleadings did not

address the statute of limitations or assert any tolling doctrines.

      Ahn filed his original answer, arguing, in part, that Wen’s legal malpractice

claim was barred by the two-year statute of limitations for legal malpractice

claims 1 because he had not represented Wen since August 4, 2010, almost three

years prior to the date Wen filed his original petition. Ahn moved for traditional

summary judgment, arguing that he was entitled to relief as a matter of law on the

ground that Wen’s malpractice claim was barred by the statute of limitations. He


1
      See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon Supp. 2014).

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argued that all of Wen’s allegations of malpractice arose out of services provided

on or before the trial of the DN Development suit, which occurred on April 20,

2010; that the attorney-client relationship ended on August 4, 2010, when the trial

court in the DN Development suit signed an order substituting new counsel for

Wen; and that Wen filed his malpractice suit outside the two-year limitations

period. Ahn further argued that Wen could not assert the discovery rule. He

supported his motion with his own affidavit regarding his attorney’s fees, Wen’s

original petition in the current malpractice suit, the final judgment in the DN

Development suit, and the order granting substitution of counsel in the DN

Development suit.

       In response, Wen argued that Ahn was to blame for his loss in the DN

Development suit, and he provided evidence supporting his factual allegations in

that suit.   However, Wen’s response did not mention the appeal of the DN

Development suit, assert the application of a tolling provision, or provide any

argument addressing Ahn’s affirmative defense of limitations. According to the

record on appeal, Wen never argued to the trial court that his claim should not be

barred by the statute of limitations, and he never asserted any tolling doctrines in

the trial court.

       The trial court granted Ahn’s motion for summary judgment. It found that

there was no genuine issue of material fact as to Ahn’s affirmative defense of



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statute of limitations and that Ahn was entitled to summary judgment as a matter of

law because Wen’s claims were barred by the statute of limitations set out in Civil

Practice and Remedies Code section 16.003(a).

                                     Analysis

      In his sole issue, Wen contends, for the first time on appeal, that the trial

court erred in granting summary judgment because the tolling doctrine set out in

Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991), applies to his claim

and should have precluded dismissal of his claim on limitations grounds.

A.    Standard of Review

      We review de novo the trial court’s ruling on a summary judgment motion.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). To prevail on a traditional summary-judgment motion, the movant

must prove that there is no genuine issue regarding any material fact and that it is

entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex.

Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004).            A matter is

conclusively established if reasonable people could not differ as to the conclusion

to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816

(Tex. 2005).

      A defendant moving for traditional summary judgment must either

(1) conclusively negate at least one essential element of the plaintiff's cause of



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action or (2) plead and conclusively establish each essential element of an

affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.

2010); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).             Specifically, a

defendant moving for summary judgment on the affirmative defense of limitations

has the burden to conclusively establish that defense. KPMG Peat Marwick v.

Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).               The

defendant must conclusively prove when the cause of action accrued and negate

the discovery rule, if it applies and has been pleaded or otherwise raised, by

proving as a matter of law that there is no genuine issue of material fact about

when the plaintiff discovered, or in the exercise of reasonable diligence should

have discovered, the nature of his injury. Id. If the movant establishes that the

statute of limitations bars the action, the nonmovant must then adduce summary

judgment proof raising a fact issue in avoidance of the statute of limitations. Id.;

see also Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (per

curiam) (holding that if movant meets its burden, burden then shifts to nonmovant

to raise genuine issue of material fact precluding summary judgment).

      In Texas, there is a two year statute of limitations for a plaintiff to bring a

legal malpractice claim against an attorney. See TEX. CIV. PRAC. & REM. CODE

§ 16.003(a) (Vernon Supp. 2014). Limitations generally begin to run when the

cause of action accrues, which occurs when facts come into existence that



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authorize a claimant to seek a judicial remedy. Apex Towing Co. v. Tolin, 41

S.W.3d 118, 120 (Tex. 2001) (citing Johnson & Higgins of Tex., Inc. v. Kenneco

Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998)).

      The supreme court has held that the statute of limitations is tolled when “an

attorney commits malpractice in the prosecution or defense of a claim that results

in litigation until all appeals on the underlying claim are exhausted.” Id. at 121

(citing Hughes, 821 S.W.2d at 156–58). However, a plea in avoidance, like the

discovery rule or the Hughes tolling doctrine, must be affirmatively pled or it is

forfeited. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517–18 (Tex.

1988) (holding that discovery rule is plea in avoidance of statute of limitations and

must be affirmatively pled); Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto,

& Friend, LLP, 404 S.W.3d 75, 85 (Tex. App.—Houston [14th Dist.] 2013, no

pet.) (holding that Hughes doctrine, like discovery rule, is plea in avoidance and,

under Woods, must be affirmatively pled); see also TEX. R. CIV. P. 94 (requiring

affirmative pleading of any matter “constituting an avoidance or affirmative

defense”).

      Even if a plaintiff fails to affirmatively plead a tolling rule, he may still rely

on such a rule to preclude summary judgment in some circumstances. Haase, 404

S.W.3d at 86.    An unpleaded plea in avoidance, such as the Hughes tolling

doctrine, may serve to preclude summary judgment “if it is raised in a summary



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judgment response and if the opposing party fails to object to it in a reply or before

the rendition of judgment.” Id. (citing Roark v. Stallworth Oil & Gas, Inc., 813

S.W.2d 492, 494 (Tex. 1991)); see also Via Net v. TIG Ins. Co., 211 S.W.3d 310,

313 (Tex. 2006) (“When [plaintiff] asserted the discovery rule for the first time in

its summary judgment response, [defendant] had two choices: it could object that

the discovery rule had not been pleaded, or it could respond on the merits and try

the issue by consent.”).

      However, issues not expressly presented to the trial court by written motion,

answer, or other response shall not be considered on appeal as grounds for reversal.

TEX. R. CIV. P. 166a(c); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013). And it

is a prerequisite to presenting a complaint for appellate review that the record show

that the complaint was made to the trial court by a timely request or motion. TEX.

R. APP. P. 33.1(a); see also D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co., 300

S.W.3d 740, 743 (Tex. 2009) (citing Rule of Civil Procedure 166a(c) and Rule of

Appellate Procedure 33.1(a) and holding, “A non-movant must present its

objections to a summary judgment motion expressly by written answer or other

written response to the motion in the trial court or that objection is waived”).

B.    Analysis

      Here, Ahn established that Wen’s cause of action accrued at least by the date

that the trial court in the DN Development suit signed the order substituting new



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counsel on August 4, 2010, and Wen did not file his malpractice suit until April 19,

2013. Thus, Ahn established that Wen filed suit outside the two-year limitations

period. See TEX. CIV. PRAC. & REM. CODE §16.003(a); Tolin, 41 S.W.3d at 120.

The burden shifted to Wen to raise a fact issue precluding summary judgment. See

KPMG Peat Marwick, 988 S.W.2d at 748; Centeq Realty, Inc., 899 S.W.2d at 197.

Wen made no argument and presented no evidence in the trial court to preserve

error. See TEX. R. CIV. P. 166a(c); Nall, 404 S.W.3d at 555 (holding that issue not

presented to trial court shall not be considered on appeal as ground for reversal).

      Wen now argues, for the first time on appeal, that the Hughes tolling

doctrine applies to preclude summary judgment of his malpractice claim because

the appeal of the judgment in the DN Development suit was not final until

December 6, 2011, and his malpractice suit was filed within two years from that

date. However, Wen failed to plead the Hughes tolling doctrine or any other

tolling provision in his original petition in this case. He likewise failed to assert

any tolling provision in his response to Ahn’s motion for summary judgment on

limitations grounds. He failed even to inform the trial court of the existence of the

DN Development appeal or to provide a copy of that opinion or judgment.

Because Wen never asserted the Hughes tolling doctrine in the trial court, either in

his pleadings or in his response to Ahn’s motion for summary judgment, that

argument is forfeited. See Haase, 404 S.W.3d at 85–86 (holding that Hughes



                                          9
tolling doctrine must be affirmatively pled or it is forfeited and that tolling doctrine

may still serve to preclude summary judgment if it is raised in written summary

judgment response).

      Furthermore, Wen’s argument that the Hughes tolling doctrine precludes

summary judgment was never presented to the trial court expressly by written

answer or other written response to Ahn’s motion. Thus, it is waived and cannot

be considered on appeal as grounds for reversal. See TEX. R. CIV. P. 166a(c); TEX.

R. APP. P. 33.1(a); D.R. Horton-Tex., Ltd., 300 S.W.3d at 743; see also Brown v.

Owens, 674 S.W.2d 748, 751 (Tex. 1984) (holding that because appellant did not

refute defendant’s statute of limitations defense to trial court, appellant could not

object to statute of limitations for first time on appeal).

      We overrule Wen’s sole issue.

                                      Conclusion

      We affirm the trial court’s judgment.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.




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