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


 CONCURRING AND DISSENTING OPINION
      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.
      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

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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.1 In 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).2 For
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 legal-
malpractice 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).




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