Texas: Lawyer Sued for Failing to Appeal for a Client after JNOV

Link for the opinion – the link to the opinion cannot be obtained from the state court website but can be viewed here: http://www.leagle.com/xmlResult.aspx?xmldoc=19901052786SW2d266_11007.xml&docbase=CSLWAR2-1986-2006


In Burns v. Thomas, 786 S.W.2d 266 (Texas 1990), this was a case involving a suit for malpractice by an individual who received a favorable jury verdict but the court rendered JNOV against him. The attorney did not appeal and the client filed a malpractice suit. The attorney was granted summary judgment on the statute of limitations bar, was affirmed by court of appeals and reversed by the Supreme Court of Texas.

The Texas Supreme Court reversed the decision by trial court that the client’s claim was barred by the two year statute of limitations, which was affirmed by the appellate court. The Texas Supreme Court reasoned that in order for the statue of limitations to run, the client must have knowledge of the harm.

Since the person didn’t file the case until two years had passed, the attorney raised the statute of limitations as a defense. Tex.Bus. & Com.Code § 17.565 has been construed that, on summary judgment, it is the defendant who bears the burden of establishing as a matter of law that the plaintiff either discovered or should have discovered the acts giving rise to the cause of action. This court has held that a defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of the injury. The attorney was unable to prove that the client knew, or should have known of the limitation two years prior to filing the complaint.

This case proves that in order to raise the defense of statute of limitations, one must have proof that the plaintiff had knowledge of the injury beyond the statute of limitations.