*1 WILLIS, Petitioner, MAVERICK, Respondent. Chilton

No. C-6225.

Supreme Court of Texas.

July 1988.

Rehearing Denied Dec. *2 of

by the statute limitations because legal injury years occurred more than two malpractice before the action filed. was disagree 723 S.W.2d 259. We with reasoning appeals of the court of hold statute of limitations for malpractice begin actions run does until the or claimant discovers should have through discovered the exercise of reason- diligence able care and facts establish- ing the of elements a cause of action. Nevertheless, judgment affirm of we appeals because of Ms. Willis’ preserve failure to error in that she failed jury to tender issues in substantially cor- form. rect September 1979, Henry Yvonne and Willis decided to obtain a divorce. Attor- ney Maverick, Chilton whom with the Wil- friends, agreed lises were di- draft the agreement. vorce settlement Maverick E. Knisely, Paul Spivey, Broadus A. Pat prepared agreement, the first draft of Kelly, Spivey, Grigg, &Kelly Knisely, Aus- provided, part, which that Yvonne Willis tin, petitioner. right would have the to reside the mari- youngest tal home until the Willises’ child Greenhill, Bankston, Joe R. Jr., L. Milton age eighteen. urg- reached the Bankston, At the Wright Greenhill, Austin, & Willis, ing Henry Maverick deleted the George Spencer, Clemens, Spencer, Wel- provision concerning right Yvonne Willis’ Finck, Antonio, maker & San respon- to reside in the marital home. Yvonne dent.

Willis testified trial that as- Maverick KILGARLIN, Justice. that, despite deletion, her sured she agree still any would have before sale of upon This case calls us to determine the place. home take could time accrual of a cause action for legal malpractice. 19, 1979, Yvonne Willis sued agreement Chil- On November Maverick, ton who represent- incorporated was into the divorce decree. action, ed in a alleging legal her divorce By per- November Maverick had malpractice handling in the of that action. his on formed last act behalf the Willises Willis additionally Ms. deceptive proceeding. claimed incident to De- the divorce On practice 10, 1979, trade violations. The was case cember Maverick drafted a will jury Willis, negligence submitted to the on the for Yvonne his as her last act attor- only. jury claim The ney. September answered issues On Ms. Willis Willis, finding of Yvonne Henry favor Maverick received notice of Willis’intention negligence partition and such to have force the marital home. $26,568.44 proximately damages. caused Yvonne Willis testified at trial that she had jury exemplary damages The also partition prohibited awarded believed was that a suit $610,000. agreement. under the court, however, The trial granted Maver- On October Yvonne Willis filed judgment ick’s motion for equitable non obstante ve- review to set aside bill Henry nothing judg- property redicto rendered a take divorce and settlement. against partition ment next Willis. Willis filed the suit holding judgment, day. affirmed that cases consolidated. two were (Subsequently, pre- that Ms. cause of Willis’ action was barred Yvonne ^Villis vailed, legislative and the decree vacated In the absence definition divorce was aside.) 21, 1981, specification, the ... courts have and set On December often been called to delineate the Yvonne Willis filed action statute; they consciously sought against Maverick. underly- regard with due outset, express agreement At without, ing statutory policy repose, *3 appeals’ with the of determination court however, unnecessary permitting individ- two-year that the statute of limitations injustices. ual governs present case. Tex.Civ.Prac. & the Robinson, 20; 550 S.W.2d at Gaddis v. (Vernon 1986). A Ann. Rem.Code 16.003 Smith, (Tex.1967). 417 S.W.2d 580-81 legal malpractice is in cause of action for discovery legal prin is The rule the governed the of a and is thus nature tort which, ciple applicable, provides when by two-year the limitations statute. First plaintiff limitations run from the date the Levine, Eagle National Bank Pass of discovered, in should the discovers or (Tex.1986). 721 S.W.2d 287 diligence, care exercise of reasonable analysis two-year Our of the statute Gaddis, injury. the nature of the 417 S.W. question begins ex with an deciding In the 2d at 578. whether dis prior amination of decisions of this court covery applicable rule is to a certain cause construing action, the statute’s “accrual” lan in this court’s decisions the area guage. primary purpose malpractice particularly of statutes of in The of medical are regarding compel general the of a The rule the limitations is exercise structive. malpractice light a time so accrual a medical cause of action within reasonable action, purposes application of stat a opposing party opportu that the has fair limitations, the cause utes of had been that nity defend while available witnesses are into existence accrued when the facts came is fresh in their minds. and the evidence a judicial that authorized a claimant seek Weaver, 20 Robinson v. 550 S.W.2d notwithstanding remedy, that the claimant (Tex.1977). timely For suit be under a might wrong the until after not discover statute, brought two-year must it be of limitations had run. Carrell following years two the date the within Denton, 138 Tex. 157 S.W.2d 878 v.& of action accrues. Tex.Civ.Prac. cause (1942).1 1986). 16.003(a)(Vernon Rem.Code Ann. § phrase “accrues” embodies a substan Gaddis, adopted rule are called concept, tive law and the courts foreign objects medical the context of upon acknowledging a cause of action to determine when cases. malpractice While might of limi rule make it more accrues and thus when the statute that the gather evi Developments defendant to commences. in the difficult for the tations dence, susceptibility to Limitations, we noted the lack of 63 Harv.L. Law—Statutes of type of case prosecution fraudulent this (1960). has 1200 This court Rev. bar “shocking results” of as as the following well relied previously twice un deserving plaintiff ring recovery to a 35 language Strully, from Fernandi wrongful of the act before able to know (1961): A.2d N.J. expiration period. Gad of the limitations question of action when a cause [T]he dis, at 581. 417 S.W.2d one, judicial to deter- a accrues is application any particular Additionally, it case is estab- we extended mine action based a class of rule to causes of general rule of law for lish a vasectomy cases, injury due to a be founded on on which rule must Hall, operation. Hays v. justice_. reason and case, opinion to cite pp. Rule 5.1 on how Appeals 8-9 as to but 1. This is Commission Appeals adopted We opinion su- cases. adopted that court was Commission of (6th preme adopted Texas Rules of Form ed. court. that as this have concluded Review, 1987), publication Law opinion Texas of this as an opinion, should be cited citing Re- guide grettably, cases. utilized this court court. publication contradicts itself at (Tex.1972). However, fraud, libel, we declined to actions for credit and medical involving to cases medi- malpractice compelling are no less misdiagnosis, observing poli- cal actions. An is obli- underlying cies the statute of limitations gated skill, prudence, to use the and dil- outweighed our concern claimants who igence commonly by practitioners exercised unknowingly lose, limitations, due to profession. his Supreme California misdiag- causes of action based medical recognized has “[c]orollary Court that a Weaver, nosis. Robinson v. expertise inability layman is the (Tex.1977). misapplication; to detect its client may recognize negligence profes- This court never has reached the Magana, sional when he sees it.” Neel v. question of the applicability of the dis Olney, Levy, Gelfand, Cathcart & Cal.3d legal malpractice cases. 421, 428, Cal.Rptr. 491 P.2d (Tex. Knight, Smith v. 608 S.W.2d 165 *4 837, (1971). 844 A Texas commentator 1980). However, courts of states: is unrealistic expect lay- to “[i]t divergent reached determining results in client legal man to have sufficient acumen malprac when a cause of legal action for perceive injury to an at the time of the tice accrues and the statute of limitations negligent act or omission attorney.” of his See, e.g., Knight, Smith v. commences. Ward, Legal Malpractice Texas, 19 in 720, 598 721 (Tex.Civ.App. S.W.2d — Fort 587, (1978). S.Tex.L.J. 613 curiam, 1980), per writ n.r.e. Worth ref'd (Tex.1980) 608 165 rule (discovery special relationship The between applies; citing fiduciary relationship the be attorney justifies an and client further im attorney client); McClung v. tween position discovery fiduciary the rule. A Johnson, (Tex.Civ.App.— 620 S.W.2d 644 relationship attorney exists between 1981, n.r.e.) Dallas writ ref’d (discovery McClung, client. 620 S.W.2d at 647. As a rule not apply, duty arising does when but fiduciary, attorney obligated an is to render relationship out of attorney-client the to a full and fair disclosure of facts material representation disclose facts to material is Id. The to representation. the client’s breached, then the statute limitations is rely must feel free to his client on attor long tolled so for as the attorney-client ney’s might ordinarily advice. Facts which relationship exists); Taylor, Pack v. 584 investigation likely require may not excite (Tex.Civ.App. S.W.2d 484 Worth — Fort fiduciary relationship suspicion where a is 1979, n.r.e.) ref'd (discovery writ rule does Weaver, v. involved. Robinson 550 S.W.2d apply). 18, (Tex.1977) J., (Pope, dissenting). 23 adopted This court has the rule discovery Further, duty of the breach to disclose in legal other malpractice cases than in McClung, tantamount to concealment. 620 injured which it is difficult the party Thus, at 647. the California Su negligent learn act or omission. preme “[postponement Court writes: Rinkle, (Tex. Kelley v. 947, 532 S.W.2d 949 until accrual of the cause action 1976) (discovery applicable rule to false discover, discovers, or the ma client should Gaddis, report); credit 417 580 S.W.2d at fiduciary terial facts in issue vindicates the rule (discovery applicable mal medical disclosure; prevents full the fidu duty of Quinn Press, cases); v. practice 135 Tex. an ciary obtaining immunity from initial (1940) 140 rule (discovery S.W.2d 438 duty by subsequent breach of breach fraud). applicable cases of Neel, obligation 6 Cal. of disclosure.” Cal.Rptr. policy The Texas 491 at 98 at reasons relied 3d at P.2d adopting courts in 845.2 Appli- McClung duty McClung, apply dis- ends. 620 S.W.2d at 647. court refused however, rule, rule, is more but held the failure to disclose cation of the prior operates analysis in toll the for so with court’s statute limitations consistent this exists, duty addressing long duty of action as the accrual of causes and that disclose cases relationship purposes giving statute of ceases when the rise to the for the limitations. rule, general holding brings

Were we to follow the this We note that Texas fully protect only by increasing client could himself majority line with ever ascertaining malpractice recognized at the moment of states that have the inherent so, its he incidence. To do would have to commencing unfairness of attorney hire a second to observe the work legal malpractice causes costly impractical of the first. This action on the date of the occurrence of the solution would but serve undermine omission, legal act or or of the relationship attorney confidential between therefrom, notwithstanding injury caused See id. and client. 491 P.2d at fiduciary relationship between Cal.Rptr. at 844.3 knowledge, and client and lack of actu constructive, part or al client. Weaver, Citing Robinson v. twenty-four judicially At least states have (Tex.1977), have us Maverick would de- adopted remedy cline to rule to Corp. problem. Distribution involving professional malpractice cases di- Amfac Miller, v. 138 Ariz. 673 P.2d agnosis, judgment, This and discretion. (1983); Magana, Olney, Levy, Neel v. court’s to four decision that case five Gelfand, Cathcart & 491 P.2d Cal.3d discovery rule to refused to extend the (1971); Morris v. Cal.Rptr. misdiagnosis in a medical case. Geer, Pio- (Colo.Ct.App.1986); 720 P.2d 994 predicated upon The court’s decision was Child, Inc., neer National Title Ins. Co. danger of perceived enhanced fraudu- Ford, (Del.1979); Edwards might lent and stale claims that arise under 401 A.2d *5 v. (Fla.1973); Kohler Wool discovery the rule. We conclude that the 279 So.2d 851 len, Hawkins, Robin- logic upon majority 455, by relied the Brown & Ill.App.3d 15 son is untenable as v. (1973); relates to case. Millwright Rom 304 N.E.2d 677 Robinson, J., See (Pope, 22 er, 1982); 550 S.W.2d at (Iowa Louisville 322 30 N.W.2d dissenting). Products, 580 Trust v.Co. Johns-Manville Harlin, v. Graham (Ky.1979); 497 S.W.2d sum, any In we believe that burden Rudloff, Parker & (Ky.Ct. 664 945 placed upon attorney by application Knighten, 447 So. App.1983); Knighten v. discovery the is less onerous than the rule denied, 448 writ (La.Ct.App.), So.2d 2d 534 injustice unknowing denying relief to Staton, v. Wha (La.1984); 1303 Note, Statutes See Accrual victims. Mumford Price, 697, A.2d 359 ley & 254 Md. 255 Limitations, 106, 119 68 Calif.L.Rev. Sears, Hendrickson v. (1969); 365 Mass. Action, 46 (1980); Note, Limitation of Patt, v. (1974); Jewett 83, 310 N.E.2d 131 (1967). 119, Accord- Texas L.Rev. 120-21 (1979); McKee 246, 95 591 P.2d 1151 Nev. ingly, we hold that the statute limita- Riordan, 729, 472 v. 116 366 A.2d N.H. legal malpractice tions for actions does not Gillespie, 189 NJ.Super. Mant v. (1976); begin to run the claimant discovers or until v. Jaramillo 368, (1983); A.2d 172 460 through the exer- should have discovered Hood, (1979); 433, 601 P.2d 66 diligence 93 N.M. cise care and the of reasonable Haugland, 303 N.W.2d 533 Johnson v. of his establishing facts the elements cause Rottman, Hall v. & (N.D.1981); Skidmore of action. rule, furthermore, observing discovery rule had that the better balances the 3. After policies underlying long statute of limitations applied the California as medical been legal malpractice cause of action than and Supreme Court practitioners, the California by McClung approach does the reached wrote: expressly mandates court. The rule immunity An from the statute of diligence to to exercise reasonable client enjoyed practitioners at the bar not negligence facts of or omission. Fur- discover ther, professions suspicious, but is other itself operates protect practitioners who when conferred former client even when the is not aware bench, doubly suspi- it is now sit attorney-client negligence after the rela- cious. Note, See, e.g., tionship ceases exist. 429-30, 190, Neel, 98 491 P.2d at 6 Cal.3d at McClung Ilegal Mal- v. Johnson: Limitations Cal.Rptr. at 845-46. 269, Actions, practice Baylor 34 L.Rev. 278-80 (1982).

647 210, (1983); 5 Ohio 450 684 have asked when the claimant dis- St.3d N.E.2d would Jones, (Okla.1985); covered, discovered, v. P.2d 105 Funnell 737 or should have Mensing, Or.App. diligence, 739 Smith v. 86 of reasonable care exercise (1987); Killian, P.2d 595 v. S.C. establishing Mills 273 the facts the elements (1979); 254 556 requested S.E.2d v. Gil of action. Ms. Willis’ is- cause Wolfe reath, (Tenn.Ct.App.1985); 699 S.W.2d 805 sue omitted the “should have discovered” Simmons, 552 Peters v. 87 Wash.2d Thus, element. to the extent that the dis- (1976); Family P.2d Savings 1053 operates legal malpractice Loan, Ciccarello, v. 157 Inc. W.Va. cases to avoid the statute of limitations (1974); 207 S.E.2d 157 Hansen Rob v. A.H. defense, preserve Ms. Willis failed to error. ins, Inc., Wis.2d N.W.2d reason, only, For this and this reason (1983). Annot., Stat generally See When appeals’judgment deny- affirm the court of Begins Upon ute Limitations to Run ing recovery cause of Against Attorney Malpractice, Action action. (1984). 32 A.L.R. 4th 260 alleges also Willis imposed Additional states have dis operates to fraudulent concealment toll the by legislative See, covery rule enactment. limitations until the e.g., Flaherty, Burgett Mont. misrepresentation conduct or has been dis (1983). Moreover, P.2d several Weaver, 793; covered. other have of the adopted states variations Sneed, 902-03 Anderson discovery rule. ( See Biberstine v. Wood 1981, writ). Tex.Civ.App. Paso no — El worth, (1979) 406 Mich. 278 N.W.2d 41 assertion, Ms. While Willis is correct in her (statute begins to run either from the ter appeals properly observed that attorney’s mination from services or allegations fraud no were made malpractice, whichever trial court. later). McComsey, also Moore v. Lastly, argues Ms. Willis Pa.Super. 264, (1983). 459 A.2d 841 trial should submitted issues cases, negligence the claimant pertaining against to her claims Maverick *6 has the pleading proving burden of and Deceptive under the Trade Act Practices operation facts suspending of a (DTPA). of appeals The court did not rule Witt, limitations. Weaver v. 561 S.W.2d point point on this of error. As this (Tex.1977); Anderson, 794 n. Wise v. jurisdiction, our rule on within we will 163 Tex. 359 S.W.2d 880-81 ap than remand it to rather the court (1962); National Resort Communities v. Barber, peals. McKelvy v. 381 S.W.2d Short, (Tex.App.— 712 S.W.2d 201-02 (Tex.1964). pro The DTPA’slimitations n.r.e.). Austin writ ref'd The trial incorporates rule. vision court in the instant case refused to submit (Ver & Ann. Tex.Bus. Com.Code 17.565 § proffered discovery rule is Willis’ 1987) 17.56A). (formerly The burden non prior sue. Rule as it existed to plead prove to dis was on Ms. Willis and 1, 1988amendments, January provided that prevent so as a as to bar. to failure of trial court submit an issue point, observing overrule this We thus was error been not unless the issue had only by requested issue requested, writing, in cor substantially requested in Ms. was not substantial Willis wording. requested rect Ms. Willis’ issue wording. Accordingly, it be ly correct read: unnecessary to address Maverick’s comes did Yvonne discover that the When Willis applicable DTPA that the is not contention Agreement Divorce, Incident to filed No- thus, concluding to this cause of action. 19, 1979, provision vember contained a recognize previously held that we allowing partition for the and sale of the lawyer’s to be unconscionable conduct a [marital home]? DeBakey under the DTPA. actionable (Tex.1981). On the requested incorrectly Staggs, This issue word- was ed; hand, to extend correctly issue we have declined a worded other (which

implied justice are ac- cause of vic- warranties likewise countless future DTPA) profes- legal malpractice, to include tims of but for Willis tionable under Allison, justice. is no When she went sional conduct. Dennis v. 698 herself there (Tex.1985). try remedy obtain a for the Our determination attorney, lawyer’s professional wrong conduct of her first attor- of whether a Willis’ ney request jury under the DTPA must failed to a issue in is actionable await trial See, wording. day. Melody substantially correct On this e.g., another Home Man- ba- sis, Barnes, that Willis still loses. ufacturing the court holds Co. (Tex.1987). says The essence of what this court Willis is this: “Now turn the other cheek appeals is judgment of the court of I and that Willis will swallow hard.” doubt affirmed. purely much comfort from the aca- derive knowledge persistence demic that her GONZALEZ, J., concurred and trying through the courts to seek redress opinion joined dissented and filed significant step has resulted in forward a CULVER, J. jurisprudence in the of this state. MAUZY, J., concurred and dissented Appellate Texas Rule of Procedure opinion joined by and filed an expressly a authorizes this court reverse ROBERTSON, J. judgment remand appeals’ court of MAUZY, Justice, concurring and appear “if it shall cause to the trial court dissenting. justice the cause demands an- de- emphatically agree I the court’s with con- I aware of case law other trial.” am rule in the cision fashion; how- struing this Rule a narrow alleged legal malpractice causes of action. ever, simply follow the I would choose to However, I from the court’s deci- dissent language the Rule. straight-forward affirm take-noth- sion to nevertheless twice has now been victim- Because Willis against ing judgment I would re- Willis. attorneys the court’s ized and because for a new trial. mand change represents opinion this case law, judgment of I reverse the arose would Willis’ cause action because and, handling interest of court for a only justice, remand it to the trial jury found that her divorce. 180; Tex.R.App.P. Brown v. he new trial. negligent but that Chilton Maverick was cf. National, (Tex.1988) Republicbank First knowingly heedless acted with C.J., dissenting). (Phillips, rights disregard to the of Yvonne reckless upon its that Wil- Willis. Based conclusion retrial, that, Willis I would also hold wronged, jury awarded lis had been *7 jury issues as should be allowed submit Notwithstanding her damages in favor. clearly claims. This court has to her DTPA verdict, has been unable jury Willis that con lawyer’s unconscionable held that a judgment of the court obtain a because DTPA. DeBa under the duct is actionable her action was appeals’ conclusion that (Tex.1981). key Staggs, v. of limitations. the statute barred Moreover, expressly re this court has implied warranty that an injustice denying jected re- the notion Recognizing “the may performance victims,” good and workmanlike unknowing court now of lief this legal services. provision disapproves to the absolutely and affirmatively Barnes, 741 Mfg. Co. v. Melody Home reasoning appeals. of the court (Tex.1987). Nevertheless, S.W.2d 349 goes the court affirm take-nothing judgment against Willis affirm the take- The court’s decision her failed trial for the reason produces a against Willis nothing judgment discovery rule issue in sub- request a unjust" so absurd and is “so result that wording. stantially correct Hays possible.” “ought not to be that it (Tex.1973). I 412, Hall, Thus, this through fighting battle judgment the would reverse years, has furthered eight Willis and, appeals justice, the interest of re-

mand the cause to the trial court for new

trial on all causes of action.

ROBERTSON, J., joins in this

concurring dissenting and opinion.

GONZALEZ, Justice, concurring and

dissenting.

For the reasons stated Chief Justice dissenting opinion,

Cadena’s

262, I judgment would reverse the

court of and remand this cause for trial. new

CULVER, J., joins concurring in this dissenting opinion. LINDSEY, Appellant,

Johnnie Earl Huff, Dallas, Wayne appellant. C. Texas, Appellee. The STATE of Wade, Henry Former Atty. Dist. No. 960-86. Vance, Atty., Alyce John Dist. Kathi Drew, Scott, Dick Miller and Winfield Asst. Texas, Court of Appeals Criminal Dallas, Attys., Huttash, Dist. Robert En Banc. Asst., Atty., Dally, Sp. State’s E.F. Carl April 20, 1988. Austin, Atty., State’s for the State. Rehearing On Nov. ON

OPINION APPELLANT’S PETITION DISCRETIONARY FOR REVIEW TEAGUE, Judge. appellant aggrava- was convicted of rape

ted under Penal Code 21.03.1 From appellate an examination of the record in cause, appears appellant was *8 repealed years (b) 1. This statute was about af- two An offense committed before the effective alleged ter commission of the offense date this Act is covered the law in effect case, offense, Ag- substantially committed, identical the time at the offense was Assault, gravated place Sexual created in its former law is continued in effect Code, legisla- § Penal 22.021. section, Section 13 of the purpose. purposes For of this responsible changes expressly pro- tion for these offense committed before the effective date vided: any of this Act if offense element oc- (a) change ap- in law made this Act curs before the effective date. plies only Leg., p. to an after offense committed on or Acts 68th ch. eff. the effective Sept. date of this Act.