On April 22, 2022, the Texas Supreme Court issued an opinion that clarifies the “tolling rule” for the statute of limitations in legal malpractice cases.  In Zive v. Sandberg, the issue presented was whether the longstanding Hughes tolling rule applies when the appeal of the underlying lawsuit was not brought directly by the legal malpractice plaintiff.  The Hughes tolling rule holds that the statute of limitations in legal malpractice actions arising from the lawyer’s handling of a lawsuit is tolled until the conclusion of all appeals of the underlying proceeding.

In Zive, the legal malpractice plaintiff appealed the underlying judgment through the denial of a petition for review by the Texas Supreme Court.   Thereafter, other parties to the judgment – not the legal malpractice plaintiff – prosecuted a further appeal via writ of certiorari to the U.S. Supreme Court.  In Zive, the issue was whether the tolling period expired at the conclusion of the Texas Supreme Court appeal (in which the plaintiff participated) or the subsequent appeal to the U.S. Supreme Court (in which the plaintiff did not participate).  The Texas Supreme Court held that Hughes tolling includes only “all appeals” in which the malpractice plaintiff participates.  The Court reasoned that this conclusion is consistent not only with Hughes and its progeny, but also the goal of drawing clear lines that make it easier to calculate when the statute of limitations will expire. Therefore, an appeal in Texas courts is “exhausted” and tolling ends when the court rules on the last action taken by the legal malpractice plaintiff.

Should you have any questions regarding the Zive decision or its impact on Texas law, please contact Marty Schexnayder.