Willis v. Maverick

• Decision Date: 06 July 1988
• Docket Number: No. C-6225,C-6225
• Citation: 760 S.W.2d 642
• Parties: Yvonne WILLIS, Petitioner, v. Chilton MAVERICK, Respondent.
• Court: Texas Supreme Court

Page 642

760 S.W.2d 642

Yvonne WILLIS, Petitioner, v. Chilton MAVERICK, Respondent.

No. C-6225.

Supreme Court of Texas.

July 6, 1988.

Rehearing Denied Dec. 14, 1988.

Paul E. Knisely, Broadus A. Spivey, Pat Kelly, Spivey, Grigg, Kelly & Knisely, Austin, for petitioner.

Joe R. Greenhill, Jr., Milton L. Bankston, Bankston, Wright & Greenhill, Austin, George Spencer, Clemens, Spencer, Welmaker & Finck, San Antonio, for respondent.

KILGARLIN, Justice.

This case calls upon us to determine the time of accrual of a cause of action for legal malpractice. Yvonne Willis sued Chilton Maverick, the attorney who represented her in a divorce action, alleging legal malpractice in the handling of that action. Ms. Willis additionally claimed deceptive trade practice violations. The case was submitted to the jury on the negligence claim only. The jury answered the issues in favor of Yvonne Willis, finding Maverick negligent and such negligence to have proximately caused $26,568.44 in damages. The jury also awarded exemplary damages of $610,000.

The trial court, however, granted Maverick's motion for judgment non obstante veredicto and rendered a take nothing judgment against Yvonne Willis. The court of appeals affirmed that judgment, holding that Ms. Willis' cause of action was barred by the statute of limitations because the legal injury occurred more than two years before the malpractice action was filed. 723 S.W.2d 259. We disagree with the reasoning of the court of appeals and hold that the statute of limitations for legal malpractice actions does not begin to run until the claimant discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of a cause of action. Nevertheless, we affirm the judgment of the court of appeals because of Ms. Willis' failure to preserve error in that she failed to tender jury issues in substantially correct form.

In September 1979, Yvonne and Henry Willis decided to obtain a divorce. Attorney Chilton Maverick, with whom the Willises were friends, agreed to draft the divorce settlement agreement. Maverick prepared the first draft of the agreement, which provided, in part, that Yvonne Willis would have the right to reside in the marital home until the Willises' youngest child reached the age of eighteen. At the urging of Henry Willis, Maverick deleted the provision concerning Yvonne Willis' right to reside in the marital home. Yvonne Willis testified at trial that Maverick assured her that, despite the deletion, she would still have to agree before any sale of the home could take place.

On November 19, 1979, the agreement was incorporated into the divorce decree. By November 26, 1979, Maverick had performed his last act on behalf of the Willises incident to the divorce proceeding. On December 10, 1979, Maverick drafted a will for Yvonne Willis, his last act as her attorney. On September 18, 1980, Ms. Willis received notice of Henry Willis' intention to force partition of the marital home. Yvonne Willis testified at trial that she had believed that a partition suit was prohibited under the agreement.

On October 1, 1980, Yvonne Willis filed an equitable bill of review to set aside the divorce and property settlement. Henry Willis filed the partition suit on the next day. The two cases were consolidated. (Subsequently, in 1983, Yvonne Willis prevailed and the divorce decree was vacated and set aside.) On December 21, 1981, Yvonne Willis filed this malpractice action against Maverick.

At the outset, we express agreement with the court of appeals' determination that the two-year statute of limitations governs the present case. Tex.Civ.Prac. & Rem.Code Ann. § 16.003 (Vernon 1986). 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).

Our analysis of the two-year statute of limitations question begins with an examination of prior decisions of this court construing the statute's "accrual" language. The primary purpose of statutes of limitations is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex.1977). For a suit to be timely under the two-year statute, it must be brought within two years following the date the cause of action accrues. Tex.Civ.Prac. & Rem.Code Ann. § 16.003(a) (Vernon 1986). The phrase "accrues" embodies a substantive law concept, and the courts are called upon to determine when a cause of action accrues and thus when the statute of limitations commences. Developments in the Law--Statutes of Limitations, 63 Harv.L.Rev. 1177, 1200 (1950). This court has previously twice relied upon the following language from Fernandi v. Strully, 35 N.J. 434, 173 A.2d 277, 285 (1961):

[T]he question when a cause of action accrues is a judicial one, and to determine it in any particular case is to establish a general rule of law for a class of cases, which rule must be founded on reason and justice....

In the absence of legislative definition and specification, the ... courts have often been called upon to delineate the statute; they have consciously sought to apply it with due regard to the underlying statutory policy of repose, without, however, permitting unnecessary individual injustices.

Robinson, 550 S.W.2d at 20; Gaddis v. Smith, 417 S.W.2d 577, 580-81 (Tex.1967).

The discovery rule is the legal principle which, when applicable, provides that limitations run from the date the plaintiff discovers or should have discovered, in the exercise of reasonable care and diligence, the nature of the injury. Gaddis, 417 S.W.2d at 578. In deciding whether the discovery rule is applicable to a certain cause of action, this court's decisions in the area of medical malpractice are particularly instructive. The general rule regarding the accrual of a medical malpractice cause of action, for purposes of application of statutes of limitations, had been that the cause accrued when the facts came into existence that authorized a claimant to seek a judicial remedy, notwithstanding that the claimant might not discover the wrong until after the statute of limitations had run. Carrell v. Denton, 138 Tex. 145, 157 S.W.2d 878 (1942). ¹

In Gaddis, we adopted the discovery rule in the context of foreign objects medical malpractice cases. While acknowledging that the discovery rule might make it more difficult for the defendant to gather evidence, we noted the lack of susceptibility to fraudulent prosecution in this type of case as well as the "shocking results" of barring recovery to a deserving plaintiff unable to know of the wrongful act before expiration of the limitations period. Gaddis, 417 S.W.2d at 581.

Additionally, we extended application of the discovery rule to causes of action based on injury due to a negligent vasectomy operation. Hays v. Hall, 488 S.W.2d 412 (Tex.1972). However, we declined to apply the discovery rule to cases involving medical misdiagnosis, observing that the policies underlying the statute of limitations outweighed our concern for claimants who unknowingly lose, due to limitations, causes of action based on medical misdiagnosis. Robinson v. Weaver, 550 S.W.2d 18 (Tex.1977).

This court has never reached the question of the applicability of the discovery rule in legal malpractice cases. See Smith v. Knight, 608 S.W.2d 165 (Tex.1980). However, courts of appeals have reached divergent results in determining when a cause of action for legal malpractice accrues and the statute of limitations commences. See, e.g., Smith v. Knight, 598 S.W.2d 720, 721 (Tex.Civ.App.--Fort Worth 1980), writ ref'd n.r.e. per curiam, 608 S.W.2d 165 (Tex.1980) (discovery rule applies; citing the fiduciary relationship between attorney and client); McClung v. Johnson, 620 S.W.2d 644 (Tex.Civ.App.--Dallas 1981, writ ref'd n.r.e.) (discovery rule does not apply, but when duty arising out of the attorney-client relationship to disclose facts material to representation is breached, then the statute of limitations is tolled for so long as the attorney-client relationship exists); Pack v. Taylor, 584 S.W.2d 484 (Tex.Civ.App.--Fort Worth 1979, writ ref'd n.r.e.) (discovery rule does not apply).

This court has adopted the discovery rule in cases other than legal malpractice in which it is difficult for the injured party to learn of the negligent act or omission. Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976) (discovery rule applicable to false credit report); Gaddis, 417 S.W.2d at 580 (discovery rule applicable in medical malpractice cases); Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438 (1940) (discovery rule applicable in cases of fraud).

The policy reasons relied upon by Texas courts in adopting the discovery rule in actions for fraud, credit libel, and medical malpractice are no less compelling in legal malpractice actions. An attorney is obligated to use the skill, prudence, and diligence commonly exercised by practitioners of his profession. The California Supreme Court has recognized that a "[c]orollary to this expertise is the inability of the layman to detect its misapplication; the client may not recognize the negligence of the professional when he sees it." Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 6 Cal.3d 176, 188, 491 P.2d 421, 428, 98 Cal.Rptr. 837, 844 (1971). A Texas commentator states: "[i]t is unrealistic to expect a layman client to have sufficient legal acumen to perceive an injury at the time of the negligent act or omission of his attorney." Ward, Legal Malpractice in Texas, 19 S.Tex.L.J. 587, 613 (1978).

The special relationship between an attorney and client further justifies imposition of the discovery rule. A fiduciary relationship exists between attorney and client. McClung, ...