Smith v. Knight, 18249
| Decision Date | 24 April 1980 |
| Docket Number | No. 18249,18249 |
| Citation | 598 S.W.2d 720 |
| Parties | J. Wilbur SMITH, Appellant, v. Robert Weldon KNIGHT et al., Appellees. |
| Court | Texas Court of Appeals |
This is a legal malpractice case. J. Wilbur Smith sued Robert Weldon Knight, an attorney; and John L. Sullivan and J. E. Savage independent executors of the estate of Fred H. Minor, deceased, for malpractice alleged to have been committed by Knight. Smith claims the estate of Minor is liable because Minor and Knight were law partners at the time of the occurrence. The malpractice was allegedly committed in 1972. The trial court granted summary judgment that Smith take nothing as to all defendants based solely upon the application of the two year statute of limitation.
We affirm in part and reverse and remand in part.
Smith alleges that he engaged Knight to perform a title search on property he was planning to buy. He delivered an abstract to Knight together with the purchase money. Knight agreed to perform the title search, close the sale, and record the deed conveying the property free of liens to Smith. Knight overlooked a recorded deed of trust lien. The sale was closed and Smith made valuable improvements to the property. On May 10 or 11, 1976 Smith received a letter from an attorney advising him of the lien and informing him that the property was being posted for sale under the deed of trust because the note secured by this lien was in default. Smith investigated and found that the lien was recorded before the 1972 title search was made and that the lien was valid. In order to prevent foreclosure upon his property he paid the lienholder $8,429.42 on September 29, 1976. Smith filed suit for this sum on May 11, 1978.
The estate of Minor moved for summary judgment on the sole ground that this suit was barred by the two year statute of limitation, Tex.Rev.Civ.Stat.Ann. art. 5526 (1958). The motion was granted on July 16, 1979.
Smith filed an appeal bond dated July 31, 1979, appealing from this summary judgment. Thereafter on August 14, 1979 the trial court granted summary judgment as to Robert Weldon Knight. However, Knight had filed no motion seeking a summary judgment.
Smith and the attorneys in partnership had a relationship of trust and confidence. In this situation the failure of plaintiff to examine the public records is excused, see 37 Tex.Jur.2d Limitation of Actions § 75 p. 211 et seq. (1962) and Courseview, Incorporated v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197 (1957). As a general rule limitation begins to run when the occurrence takes place. Under the facts in this case it is our opinion that this case falls into a recognized exception. It is well stated in 37 Tex.Jur.2d Limitation of Actions § 62, p. 185 (1962).
"Moreover, there are said to be exceptions to the general rule, one being where there has been a...
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