Sledge v. Alsup
| Decision Date | 10 August 1988 |
| Docket Number | No. 08-87-00272-CV,08-87-00272-CV |
| Parties | Gene SLEDGE, Appellant, v. James M. ALSUP and The Law Firm of Lynch, Chappell, Allday & Alsup, Appellees. |
| Court | Texas Court of Appeals |
Charles R. Griggs, Nunn, Griggs, Wetsel & Jones, Sweetwater, for appellant.
Perry Davis, Jr., Shafer, Davis, McCollum, Ashley, O'Leary & Stoker, Odessa, Tom McCall, Lynch, Chappell, Allday & Alsup, Midland, for appellees.
Before OSBORN, C.J., and SCHULTE and FULLER, JJ.
This appeal is from a summary judgment in a suit seeking to recover money damages for alleged attorney malpractice in a real estate transaction. The sole ground in the motion for summary judgment was that all of the plaintiffs' claims were barred by the two-year statute of limitations. Giving effect to the recent holding in Willis v. Maverick, 760 S.W.2d 642 (1988). We affirm.
This is but one of many cases resulting from the devastating failure of The First National Bank of Midland. The background of that failure and some of the facts involving the parties to this suit are set forth in Federal Deposit Insurance Corporation v. Eagle Properties, Ltd., 664 F.Supp. 1027, W.D.Tex.1985. As noted in substantial detail in that opinion, the bank on December 31, 1982, sold its physical plant and facilities to Eagle Properties, a limited partnership, for $75 million. One of the limited partners was the Appellant, Gene Sledge, who executed a note for $2.5 million. One of the attorneys representing the bank in the sale was James M. Alsup, a partner in the firm of Lynch, Chappell, Allday & Alsup.
In this case filed on December 31, 1986, Sledge alleged that Alsup individually, and for his firm, undertook to represent Clint Hurt, another limited partner, and himself at the closing of the sale of the bank properties. The petition purports to allege three separate causes of action under headings entitled: Breach of Contract, Legal Malpractice and Fraud. All claims arise out of the single transaction when Alsup is alleged to have advised Sledge to sign the documents which had been prepared by the bank's attorneys to close the sale to the limited partnership. The response to the motion for summary judgment contends there are fact issues in the case and that the applicable statute of limitations is the four-year statute as set forth in Tex.Civ.Prac. & Rem.Code sec. 16.004 or, alternatively, in sec. 16.051. The response does not raise any issue about application of the discovery rule in a legal malpractice case or assert that under the discovery rule the alleged causes of action did not accrue at the time of the alleged malpractice. The attached affidavit of Mr. Sledge does raise a fact issue as to his being represented by Mr. Alsup at the closing on December 31, 1982.
Appellant presents five points of error, all asserting that the trial court erred in holding the plaintiff's causes of action were barred by the two-year statute of limitations. For purposes of this appeal, we assume that Mr. Alsup was representing Mr. Sledge at the closing of the sale of the bank properties to Eagle Properties and that there was malpractice in that representation. The one issue raised by the motion for summary judgment is whether a claim for such malpractice is barred by the two-year statute of limitations as set forth in Tex.Civ.Prac. & Rem.Code sec. 16.003. We conclude that it is.
In Willis v. Maverick, the Supreme Court said:
A cause of action for legal malpractice is in the nature of a tort and is thus governed by the two-year limitations statute. First National Bank of Eagle Pass v. Levine, 721 S.W.2d 287 (Tex.1986).
Nothing is to be gained by fracturing a cause of action arising out of bad legal advice or improper representation into claims for negligence, breach of contract, fraud or some other name. If a lawyer's error or mistake is actionable, it should give rise to a cause of action for legal malpractice with one set of issues which inquire if the conduct or omission occurred, if that conduct or omission was malpractice and if so, subsequent...
To continue reading
Request your trial
-
Bradley v. Phillips Petroleum Co.
...Antonio 2003, pet. denied); Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex.App.-Houston [1st Dist.] 1998, pet. denied); Sledge v. Alsup, 759 S.W.2d 1, 2 (Tex.App.-El Paso 1988, no writ). "A cause of action for legal malpractice arises from an attorney giving a client bad legal advice or ......
-
In re Frazin, Case No. 02-32351-bjh-13 (Bankr. N.D. Tex. 9/23/2008)
...possess and exercise . . . the ultimate issue is whether there has been a breach of duty which causes damage. Sledge v. Alsup, 759 S.W.2d 1, 2 (Tex. App.-El Paso 1988). Texas has further expressed its policy against re-casting a malpractice claim as a DTPA claim in a 1995 amendment to the D......
-
Askanase v. Fatjo
...Dallas 1991, writ denied); University Nat'l Bank v. Ernst & Whinney, 773 S.W.2d 707, 710 (Tex.App.— San Antonio 1989, no writ); Sledge v. Alsup, 759 S.W.2d 1, 2 (Tex.App. — El Paso 1988, no writ); Citizens State Bank v. Shapiro, 575 S.W.2d 375, 386 (Tex.Civ.App. — Tyler 1978, writ ref'd n.r......
-
Streber v. Hunter
...should make clear that our analysis will not apply in cases brought under the amended DTPA. 39. The attorneys rely heavily on Sledge v. Alsup, 759 S.W. 2d 1, 2 (Tex.App.El Paso 1988, n.w.h.), where a Texas Appeals Court held Nothing is to be gained by fracturing a cause of action arising ou......
-
Chapter 4-1 Legal Malpractice
...(Tex. App.—Houston [1st Dist.] 1995, no writ).[40] Black v. Wills, 758 S.W.2d 809, 814 (Tex. App.—Dallas 1988, no writ); Sledge v. Alsup, 759 S.W.2d 1, 2 (Tex. App.—El Paso 1988, no writ).[41] Haas v. George, 71 S.W.3d 904, 913 (Tex. App.—Texarkana 2002, no pet.); Nichols v. Smith, 507 S.W.......