634 S.W.3d 170
Tex. App.2021Background
- Plaintiffs (Brumfield and 271 others) sued attorneys Jimmy Williamson, Cyndi Rusnak, Michael Pohl and related firms, alleging a large-scale barratry scheme after the Deepwater Horizon spill: lawyers paid non-lawyer "runners" and marketing vendors to cold-call and sign up thousands of Mississippi claimants for representation.
- Plaintiffs alleged causes of action for civil barratry (Tex. Gov’t Code § 82.0651 as enacted in 2011), civil conspiracy, aiding and abetting, and breach of fiduciary duty; many plaintiffs also asserted alternative negligence claims (later nonsuited).
- Defendants moved multiple times for partial summary judgment arguing statute-of-limitations defenses (two- or four-year limits), and that tolling doctrines and the discovery rule did not apply; the trial court granted summary judgment dismissing most claims.
- Plaintiffs filed an untimely fourth amended petition after the court’s pleading deadline to assert new alleged breaches as to 14 individuals; the trial court denied leave and struck that pleading.
- On appeal the court (1) held the 266 appellants’ appeals were properly before it and affirmed the summary judgments, (2) denied leave and affirmed striking the fourth amended petition, and (3) dismissed the six remaining appellants’ appeal for lack of a timely notice of appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Accrual and limitations for civil barratry (§ 82.0651(a)) | A 4‑year limitations period applies; claims did not accrue at solicitation; discovery rule or tolling (Hughes, McClung, fraudulent concealment) defers accrual | Claims accrued at or before solicitation / latest signings (May 2013); limitations (2 or 4 years) bar suit; discovery rule and Hughes/McClung tolling do not apply | Court: plaintiffs’ barratry claims accrued by May 2013; limitations expired before 2017 suit; discovery rule and Hughes/McClung inapplicable; summary judgment affirmed. |
| Civil conspiracy & aiding-and-abetting (derivative claims) | Derivative of barratry; if barratry timely, these survive | Because underlying barratry barred, derivative claims fail | Court: derivative claims share underlying tort’s limitations; dismissal of barratry forecloses these claims; affirmed. |
| Breach of fiduciary duty (recast of barratry) | Fiduciary claims have 4‑year period and did not fully accrue until court dismissed barratry claims in 2018; discovery/tolling apply; equitable remedies (fee forfeiture) and statutory penalties available | Plaintiffs merely recast time‑barred barratry as fiduciary claims to avoid limitations; claims premised on same solicitation, so time‑barred | Court: plaintiffs impermissibly reframed time‑barred barratry as fiduciary claims; statute of limitations bars them; summary judgment affirmed. |
| Leave to file fourth amended petition / striking pleading | Proposed amendment concerned newly discovered 2018 fee payments to 14 plaintiffs—no prejudice to defendants; leave should be granted | Amendment was untimely (after pleading deadline and after summary-judgment rulings) and would unfairly resurrect adjudicated issues; pleadings properly struck | Court: trial court did not abuse discretion denying leave and striking the untimely fourth amended petition; affirmed. |
| Appellate jurisdiction of six appellants | Six appellants sought leave to amend the original notice of appeal to add themselves and the June 3, 2019 final judgment | Defendants opposed amendment as untimely and for cause | Court: original Apr. 30, 2019 notice covered 266 appellants only; six appellants did not timely perfect appeal and later amendment denied; appeal of six dismissed for lack of jurisdiction. |
Key Cases Cited
- Nguyen v. Watts, 605 S.W.3d 761 (Tex. App.—Houston [1st Dist.] 2020) (discovery rule does not toll accrual of civil‑barratry claims based on solicitation; accrual tied to knowledge of solicitous conduct, not knowledge of law)
- Neese v. Lyon, 479 S.W.3d 368 (Tex. App.—Dallas 2015) (discussing civil barratry remedy and limitations analysis)
- Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991) (Hughes tolling: narrow rule tolling malpractice claims until exhaustion of appeals in the underlying litigation)
- Lehmann v. Har‑Con Corp., 39 S.W.3d 191 (Tex. 2001) (final‑judgment rules; an order disposing of last claim becomes final)
- Via Net v. TIG Ins. Co., 211 S.W.3d 310 (Tex. 2006) (cautionary limits on discovery rule; apply narrowly)
- Murphy v. Campbell, 964 S.W.2d 265 (Tex. 1997) (defines "legal injury" and accrual principles)
- KPMG Peat Marwick v. Harrison Cty. Houston Fin. Corp., 988 S.W.2d 746 (Tex. 1999) (movant bears burden to conclusively prove accrual and negate discovery rule in summary‑judgment statute‑of‑limitations defenses)