Zidell v. Bird

• Decision Date: 22 May 1985
• Docket Number: No. 14291,14291
• Citation: 692 S.W.2d 550
• Parties: Allan ZIDELL, et al., Appellants, v. Donald E. BIRD, Appellee.
• Court: Texas Court of Appeals

Page 550

692 S.W.2d 550

Allan ZIDELL, et al., Appellants, v. Donald E. BIRD, Appellee.

No. 14291.

Court of Appeals of Texas Austin.

May 22, 1985.

Gerald R. Coplin, P.C., Richardson, for appellants.

Kirk P. Watson, Scott, Douglass & Luton, Austin, for appellee.

Before POWERS, EARL W. SMITH and CARROLL, JJ.

POWERS, Justice.

Appellants Allan and Alvin Zidell pray we reverse a summary judgment that they take nothing by their suit against their former attorney, Donald E. Bird, for legal malpractice. We will affirm the judgment.

The Zidells contracted with Edward A. Zidd to sell him a parcel of land. Before consummation of the sale, however, they contracted with Gates Steen to sell him the same property, at a higher price, in the event the Zidd sale was not consummated. Allegedly acting on Bird's advice, the Zidells sold the property to Steen. Zidd ultimately sued the Zidells for breach of his contract with them, obtaining a judgment for money damages. That judgment was affirmed by a panel of this Court in an unpublished opinion. Zidell v. Zidd, No. 13,861, Tex.App.--Austin, February 13, 1985. The Zidells then sued Bird, seeking among other relief an award of damages in the amount of Zidd's judgment against them. The trial court concluded that the cause of action pleaded by the Zidells was barred by limitations. We agree.

THE CAUSE OF ACTION PLEADED BY THE ZIDELLS

The Zidells alleged that Bird was negligent in three particulars: (1) in agreeing, without their authority, to postpone the date for "closing" the Zidd contract; (2) in failing to prepare the "closing" documents in time for the "closing" date specified in the Zidd contract; and (3) in advising the Zidells to consummate the "stand-by" contract with Steen, thereby exposing them to liability on the Zidd contract, a liability upon which Zidd ultimately recovered judgment. In the present circumstances, any duty owed by Bird to the Zidells arises by virtue of the employment contract whereby they engaged his services.

A party contracting to supply services owes a common-law duty to perform the services with reasonable care, skill, expedience, and faithfulness. A negligent failure to do so may constitute a "tort" as well as a breach of contract. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947). "Negligence" is the doing of that which a person of ordinary prudence would not have done, or the omission to do what the hypothetical person would have done, in the same or similar circumstances. Great Atlantic & Pacific Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249 (1943).

An attorney, like any other individual, is answerable in tort for any negligent performance of his employment obligations. The attorney's negligence may consist in the giving of an erroneous legal opinion or advice, in failing to give any advice or opinion when legally obliged to do so, in disobeying a client's lawful instruction, in taking an action when not instructed by the client to do so, in delaying or failing to handle a matter entrusted to the attorney's care by the client, or in the attorney's want of ordinary care in preparing, managing, and presenting litigation that affects the client's interests. ¹

In the present case, it is undisputed that the two-year statute of limitations, Tex.Rev.Civ.Stat.Ann. art. 5526 (Supp.1985), applies to the three instances of negligence alleged against Bird in the Zidells' petition, and elaborated upon in the summary-judgment record. If the Zidells' cause of action for negligence, based upon any of the three allegations, accrued more than two years before the filing of their suit, their cause of action is barred, and the trial court did not err in its summary judgment to that effect. Determining when the Zidells' cause of action accrued is not, as we shall see, a matter free of difficulty.

THE BASIC RULE FOR DETERMINING WHEN A CAUSE OF ACTION FOR

NEGLIGENCE "ACCRUES"

The word "accrual" signifies the date when one having a right of action first becomes legally entitled to apply to a court for relief by a proceeding commenced therein; that is to say, it signifies the date when the plaintiff first becomes entitled to sue the defendant based upon a legal wrong attributed to the latter. In negligence cases generally, the basic rule is that a cause of action so "accrues" when the duty of ordinary care is breached by some act or omission on the defendant's part. Blondeau v. Sommer, 139 S.W.2d 223 (Tex.Civ.App.1940, writ ref'd). This basic rule ordinarily applies even if the plaintiff is not aware of his right of action; and, it is said, the basic rule applies "although damage was not sustained until after the commission of the tort." Id. at 224 (emphasis added). For the quoted language to have any meaning at all, it must intend that the basic rule applies even though an injury does not immediately attend the act or omission of which the plaintiff complains.

Against the theory of the basic rule--that a right of action accrues in the plaintiff with the defendant's breach of duty, although "damage" or an injury does not result until sometime later--one must consider the qualifying proposition that "[a]n action for negligence cannot be maintained unless some damage has resulted therefrom." Johnson v. Sovereign Camp, W.O.W., 125 Tex. 329, 83 S.W.2d 605, 608 (1935) (emphasis added). The apparent contradiction is explained by the "legal injury rule."

THE LEGAL INJURY RULE

In Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888), the Court applied the "legal injury" rule to determine when a cause of action accrues in cases where the defendant's conduct is separated in time from the harm which it causes the plaintiff. The central idea of the rule is that the plaintiff's cause of action accrues when the defendant's conduct first becomes "unlawful" as to the plaintiff under the law applicable to the circumstances of the case. A few decisions illustrate the distinction:

1. "Lawful acts," or conduct for which no immediate right of action is given by applicable law. If, in the circumstances, the defendant's conduct will not form the basis of an immediate suit by the plaintiff for judicial relief, because no legally protected interest of the plaintiff has been invaded in consequence of the conduct, a cause of action will not accrue until that interest has been invaded or "injured." Ft. Worth & D.C. Ry. Co. v. Speer, 212 S.W. 762 (Tex.Civ.App.1919, no writ) (bridge across waterway on land below plaintiff's land erected lawfully, so that plaintiff's cause of action accrued with each instance when his land was flooded, due to heavy rains and gathering of debris at bridge trestles, and not when bridge constructed); Town of Jacksonville v. McCracken, 232 S.W. 294 (Tex.Comm.App.1921, judgment adopted) (septic tank lawfully constructed on defendant's land did not necessarily create a nuisance by reason of the manner of its construction, but only by reason of its negligent use, so that plaintiff's cause of action against defendant accrued when offensive effluent invaded plaintiff's adjoining land, and not when tank erected); Baker v. City of Fort Worth, 146 Tex. 600, 210 S.W.2d 564 (1948) (where bridge erected on adjoining land without invasion of plaintiff's rights or premises at time of construction, no legal injury resulted at that time and plaintiff's cause of action did not accrue until water diverted onto his land by reason of the bridge).

2. "Unlawful acts," or conduct for which an immediate right of action does lie under applicable law. If, in the circumstances of the case, the law affords an immediate remedy to redress harm to the plaintiff's legally protected interest, his cause of action accrues at the time of the conduct of which he complains, notwithstanding that the injury is not practically harmful at the time or that it is slight in comparison to what may develop subsequently. Houston Water-Works Co. v. Kennedy, supra (defendant's act in cutting arch which supported plaintiff's house constituted injury to plaintiff's legally protected interest in his property for which applicable law afforded immediate relief for the invasion, so that plaintiff's cause of action accrued with the cutting of the arch and not on subsequent settling and cracking of house); Robertson v. Texas & N.O.R. Co., 122 S.W.2d 1098 (Tex.Civ.App.1939, writ ref'd) (very slight injury to plaintiff's back, sustained in fall in hole dug on employer's property, gave rise to immediate right of action, and plaintiff's cause of action did not accrue later when more serious injury to his back first became apparent); Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438 (1940) (plaintiff, induced to make loan by fraudulent or negligent representations of her agent that the loan security was sufficient, had right to immediate legal remedy with the making of the loan so induced, or with discovery of the fraud, so that her cause of action accrued then and not when she foreclosed the lien to discover that the security was inadequate); Stillwell v. City of Fort Worth, 140 Tex. 560, 169 S.W.2d 486 (1943) (where defendant dug trench across plaintiff's land without permission, and such was unlawful as a trespass under plaintiff's own allegations, he had an immediate right to a legal remedy so that his cause of action accrued with the defendant's act and not when consequential injury to the plaintiff's land resulted from flooding); Tennessee Gas Transmission Co. v. Fromme, 153 Tex. 352, 269 S.W.2d 336 (1954) (where plaintiff alleged that the defendant negligently permitted contaminated water to flow from its land onto hers, causing injury to her land and improvements, her cause of action accrued with the first physical invasion of her land which was necessarily injurious, so that she was entitled then to immediate legal relief, and did not first accrue with subsequent invasions of a like kind).

The foregoing illustrate the general contours of the "legal injury" rule: If ...