Parsons v. Turley

50 S.W.3d 519, 2000 Tex. App. LEXIS 5397, 2000 WL 1137287
CourtCourt of Appeals of Texas
DecidedAugust 11, 2000
DocketNo. 05-99-01365-CV
StatusPublished
Cited by1 cases

This text of 50 S.W.3d 519 (Parsons v. Turley) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Parsons v. Turley, 50 S.W.3d 519, 2000 Tex. App. LEXIS 5397, 2000 WL 1137287 (Tex. Ct. App. 2000).

Opinion

OPINION

BRIDGES, Justice.

Roger K. Parsons, individually and as administrator of the estate of Esther Ann Parsons, appeals the trial court’s summary judgment entered in favor of Windle Tur-ley and Windle Turley, P.C. In four issues on appeal, Parsons argues the trial court erred in granting summary judgment in favor of Turley on the grounds that (1) the statute of limitations barred Parson’s claims, (2) certain of Parsons’ claims were barred by the doctrine of collateral estop-pel, (3) Turley was not estopped from asserting the statute of limitations barred Parsons’ claims, and (4) Turley did not waive his right to diligent service of process. We affirm the trial court’s judgment.

In September 1991, Parsons’ wife died in a plane crash. The plane was owned and operated by E.I. DuPont de Nemours and Company, which also employed the pilots at the time of the crash. Parsons’ wife was an employee of Conoco, Inc., which was responsible for overseeing the health and physical competency of DuPont’s pilots. Parsons hired Turley to represent him individually and as representative of his wife’s estate.

Parsons instructed Turley to file suit against DuPont and Conoco in state court. However, Turley filed suit only against DuPont in state court. DuPont removed the case against it to federal court. In a separate action, Turley filed suit against Conoco in state and was unsuccessful in joining Parson’s claims against Conoco in the federal suit. The trial court subsequently granted Conoco’s motion for summary judgment in state court on June 13, 1994. On April 25, 1995, the state court entered a final judgment dismissing Parsons’ claims against the pilots’ estates and all remaining claims. Turley filed a motion for new trial on May 26, 1995. Parsons hired separate appellate counsel who advised him that the court of appeals lacked jurisdiction to consider the appeal because the motion for new trial was filed thirty-one days after the final judgment was signed, and no timely notice of appeal or cost bond was filed. The fourteenth district court of appeals dismissed the appeal for lack of jurisdiction on October 12, 1995, and no further appeals were taken.

In federal court, the suit against DuPont was tried to a jury which entered a verdict in favor of Parsons on his negligence and gross negligence claims and awarded $4,750,000 in actual damages to Parsons and $1 million to his wife’s parents. Nevertheless, the federal court sustained DuPont’s motion for judgment as a matter of law on the jury’s gross negligence findings, holding that the evidence was legally insufficient to support such a finding. On July 27, 1994, the federal court entered judgment awarding Parsons the actual damages found by the jury along with prejudgment interest, postjudgment interest, and court costs. Turley filed a notice of appeal [523]*523on behalf of Parsons. However, on December 5, 1994, Parsons informed Turley by letter that Parsons had hired a different lawyer to represent him on appeal in the federal case and that Turley’s firm was “relieved of all responsibility with respect to the appeal of [Parsons’] case, effective now.” In appealing the federal court’s judgment, Parsons argued the evidence was sufficient to support the jury’s gross negligence finding. However, on June 12, 1996, the United States Court of Appeals for the Fifth Circuit affirmed the federal court’s judgment.

Subsequently, at DuPont’s request, Tur-ley sent a letter to DuPont’s counsel calculating the principal, prejudgment interest, and post-judgment interest on the federal judgment against DuPont. Parsons disagreed with Turley’s calculations in that they failed to compound prejudgment interest. Parsons’ counsel submitted different calculations to DuPont. DuPont refused to compound prejudgment interest, and the federal court also denied Parsons’ request to compound prejudgment interest. Parsons appealed, and the Fifth Circuit again affirmed the federal court.

As a result of depositions taken in March and April 1998, Parsons learned that Conoco had knowledge before the plane crash that the pilot had an alcohol problem. On June 12, 1998, Parsons sued Turley, alleging, among other things, that Turley negligently failed (1) to discover and use the evidence of the pilot’s alcohol problem and (2) to bring suit originally against both DuPont and Conoco in state court. Turley moved for summary judgment on the grounds that Parsons’ suit was barred by the statute of limitations, collateral estoppel, and lack of causation. On August 16,1999, the trial court granted Turley’s motion for summary judgment without specifying the grounds for its judgment. This appeal followed.

In his first issue on appeal, Parsons argues the trial court erred in concluding as a matter of law that all of his causes of action were barred by the statute of limitations. Specifically, Parsons argues the accrual of his claims for legal malpractice was tolled by the discovery rule and, under the rationale of Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex.1991), until all appeals were exhausted in the underlying litigation.

When a defendant moves for summary judgment based on the affirmative defense of limitations, he assumes the burden of showing as a matter of law that the suit is barred by limitations. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80-81 (Tex.1989); Fernandez v. Memorial Healthcare Sys., Inc., 896 S.W.2d 227, 230 (Tex.App.-Houston [1st Dist.] 1995, writ denied). The question of when a cause of action accrues is a question of law for the court. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990); Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988). When reviewing a summary judgment, we take as true evidence favorable to the non-movant and indulge every reasonable inference and resolve any doubts in favor of the nonmovant. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). When, as here, a defendant moves for summary judgment on more than one ground, and the judgment does not specify the grounds upon which the trial court relied, we must determine if any of the theories advanced by the parties is meritorious. See Rogers, 772 S.W.2d at 79.

A cause of action for legal malpractice is in the nature of a tort and, thus, is governed by the two-year limitations statute. First National Bank v. Levine, 721 S.W.2d 287 (Tex.1986). For a suit to be timely under the two-year statute, it must be brought within two years follow[524]*524ing the date the cause of action accrues. Tex.Civ.PRAc. & Rem.Code Ann. § 16.003(a) (Vernon Supp.2000). A cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex.1997).

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Bluebook (online)
50 S.W.3d 519, 2000 Tex. App. LEXIS 5397, 2000 WL 1137287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/parsons-v-turley-texapp-2000.