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Affirmed in Part and Reversed and = Remanded in=20 Part and Majority = and=20 Concurring and Dissenting Opinions filed June 24, = 2008.

 

In The

 

Fourteenth Court=20 of Appeals

____________

 

NO. 14-06-00848-CV

____________

 

LENIETA=20 WYLENE TROUSDALE, = Appellant

 

V.

 

ANNETTE M.=20 HENRY, R. CHRISTOPHER BELL, AND BELL & HENRY,=20 L.L.P., = Appellees

 

 

On Appeal from the = 129th District Court

Harris County, = Texas

Trial Court Cause = No. 2005-81941

 

 

M A J O R=20 I T Y   O P I N I O N

Lenieta=20 Wylene Trousdale (ATrousdale@) appeals=20 from the trial court=3Ds order=20 granting summary judgment in favor of appellees, Annette M. Henry, = R.=20 Christopher Bell, and Bell & Henry, L.L.P.  In three = issues,=20 Trousdale contends the trial court erred in its grant of summary = judgment=20 and its dismissal of her claims with prejudice, because (1) = certain of=20 appellees=3D = actions=20 constitute a breach of fiduciary duty, to which a four-year = statute of=20 limitations applies; (2) the non-fracturing rule does not apply to = the=20 facts of this case, as claims for breach of fiduciary duty are not = limited=20 to instances of self-dealing by attorneys; and (3) the fraudulent=20 concealment doctrine tolled the commencement of the two-year = statute of=20 limitations on her legal malpractice claims until August or = September=20 2005, when appellees returned her file to her.

We=20 conclude that the trial court erred in applying the two-year = statute of=20 limitations to Trousdale=3Ds breach=20 of fiduciary duty claims.  However, we also conclude that = neither the=20 discovery rule nor the fraudulent concealment doctrine tolled the = running=20 of the statute of limitations on Trousdale=3Ds legal=20 malpractice claims until August or September 2005.  As a = result of=20 these holdings, we reverse that portion of the trial = court=3Ds order=20 granting summary judgment on Trousdale=3Ds breach=20 of fiduciary duty claims and affirm the summary judgment as to the = legal=20 malpractice claims.

Factual=20 and Procedural Background

Because we=20 are reviewing a summary judgment, we present the facts in the = light most=20 favorable to Trousdale, the non-movant. See Provident Life = &=20 Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. = 2003).  In=20 October 1998, following the death of her father, Trousdale = retained=20 Annette M. Henry (AHenry@), R.=20 Christopher Bell (ABell@), and=20 their law firm, Bell & Henry, L.L.P., to represent her and the = estate=20 of her father in two lawsuits filed in Liberty County, = Texas.  The=20 first was a probate action to have Trousdale appointed = representative of=20 her father=3Ds estate=20 (Athe=20 probate action@). =20 The second was a fraud and conversion action filed against Ellen = Ayres,=20 her half-sister, in district court (Athe=20 district court action@). =20 According to the parties, the probate action was dismissed on = September=20 27, 2002 for want of prosecution, and the district court action = was=20 dismissed on October 16, 2002, also for want of=20 prosecution.

This=20 appeal involves the manner and timing of Trousdale=3Ds=20 discovery that these two lawsuits had been dismissed.  With = respect=20 to the probate action, Trousdale alleges that Henry promised her = in April=20 2001 that she would keep her apprised of an upcoming hearing in = the=20 probate court.  After failing to receive any notification = regarding=20 the lawsuit, Trousdale telephoned Henry in December 2002 to = inquire as to=20 its status.  However, instead of speaking directly with Henry = herself, Trousdale spoke with a member of Henry=3Ds staff,=20 who informed her that she would have Henry return her telephone=20 call.  When Henry failed to do so, Trousdale called = Henry=3Ds office=20 three times.  During the second call, occurring sometime in = January=20 2003, Henry merely informed Trousdale, Awe missed=20 it,@ = without=20 further explanation as to whether it was a hearing that had been = missed,=20 or whether  the probate action itself had been = dismissed. =20 Trousdale then asked Henry to reschedule the probate hearing, to = which=20 Henry did not respond.  Later that month, Trousdale called = Henry a=20 third time and again asked Henry to reschedule the probate = hearing,=20 whereupon Henry hung up on her.  In a later conversation, = Trousdale=20 requested that Henry return her file.  Henry told her that = her case=20 had been Asealed,@ = and said=20 that, for this reason, she could obtain her file from neither her = nor the=20 Liberty County courthouse.  Henry further informed Trousdale = that she=20 would need a probate attorney to further pursue the = matter.

With=20 respect to the district court action, Trousdale alleges that she = never=20 inquired, and was never informed, as to its status.  She also = claims=20 that Henry never informed her that anything had been Amissed@ = on the=20 district court action during their telephone conversations, much = less that=20 the district court action had been dismissed.

In sum,=20 Trousdale asserts that appellees never informed her that either = lawsuit=20 had been dismissed.  As a result, she clams she did not learn = that=20 either the probate action or the district court action had been = dismissed=20 until August-September 2005, when appellees finally returned her = file to=20 her.

On=20 December 30, 2005, Trousdale sued appellees for legal malpractice = and=20 breach of fiduciary duties.  She alleged that appellees (1) = failed to=20 appear at trial settings in September and October of 2002, which = resulted=20 in the dismissal of her claims for want of prosecution; (2) failed = to=20 disclose to her that her claims were dismissed, after she had paid = them=20 for their services and expenses; and (3) intentionally refused to = return=20 her files to her until September 2005, to conceal the fact that = her claims=20 had been dismissed and were time-barred.  Trousdale later = amended her=20 petition as follows:  (1) adding a claim that appellees were=20 negligent in their failure to timely take any action to have her = cases=20 reinstated upon learning of their dismissal; (2) adding a claim = that the=20 discovery rule and the fraudulent concealment doctrine tolled the = statute=20 of limitations on her legal malpractice claims until appellees = returned=20 her files in September 2005; and (3) stating her legal malpractice = and=20 breach of fiduciary duty claims in separate sections.

Appellees=20 filed a joint motion for summary judgment. Stating that=20 Trousdale=3Ds sole=20 claims of wrongdoing related to missed hearing/trial settings, = appellees=20 contended that Trousdale=3Ds claims=20 amounted to nothing more than a claim for legal malpractice, = subject to a=20 two-year statute of limitations.  Appellees further asserted = that=20 neither the discovery rule nor the fraudulent concealment doctrine = tolled=20 limitations until September 2005, as Trousdale admitted knowledge = of and=20 intent to sue on her cause of action in June 2003.[1] =20 Because they claimed limitations had run in June 2005, and = Trousdale did=20 not file suit until December 2005, appellees sought dismissal of=20 Trousdale=3Ds claims=20 with prejudice.

In her=20 response, Trousdale argued that she timely filed suit against=20 appellees.  She contended that her breach of fiduciary duty = claims=20 were controlled by a four-year statute of limitations, making = those claims=20 timely.  She acknowledged that her legal malpractice claims = were=20 governed by a two-year statute of limitations, but asserted that = the=20 discovery rule and the fraudulent concealment doctrine tolled the = running=20 of limitations on those claims.  With respect to the former,=20 Trousdale attached to her response an affidavit in which she = averred,=20 AThe first=20 time I realized I had a risk of harm was in August or September = 2005 when=20 I saw this in the file I had been given.@  In=20 their reply, appellees objected that Trousdale=3Ds=20 affidavit amounted to a Asham=20 affidavit,@ = because=20 it materially contradicted her sworn deposition testimony.  = Appellees=20 requested that the trial court strike certain portions of the = affidavit,=20 including the above-quoted statement.

The trial=20 court granted appellee=3Ds motion=20 for summary judgment, and ordered Trousdale=3Ds claims=20 dismissed with prejudice.  In its order, the trial court = further=20 sustained appellees=3D = objection=20 to Trousdale=3Ds=20 affidavit, and struck the statement, AThe first=20 time I realized I had a risk of harm was in August or September = 2005 when=20 I saw this in the file I had been given,@ = from the=20 affidavit.  This appeal followed.

Issues on=20 Appeal

In three=20 issues, Trousdale contends that the trial court erred in granting = summary=20 judgment in favor of appellees.  In her first issue, = Trousdale=20 asserts that her claims for breach of fiduciary duties were timely = filed,=20 as they are separate and independent from her claims for legal=20 malpractice, and subject to a four-year statute of = limitations.  In=20 her second issue, she argues that the non-fracturing rule cannot = be=20 applied on the facts of this case, as claims for breach of = fiduciary=20 duties are not limited solely to instances of self-dealing by=20 attorneys.  In her final issue, Trousdale contends that she = timely=20 filed her legal malpractice claims, as the fraudulent concealment = doctrine=20 tolled the running of limitations until appellees returned her = file in=20 August-September 2005.  She further argues that the trial = court erred=20 in sustaining appellee=3Ds=20 objection to her affidavit and striking a statement from that=20 affidavit.  We will address Trousdale=3Ds first=20 and second issues together, because they are related.

Standard=20 of Review

We review the trial=20 court=3Ds grant of summary = judgment de=20 novo. Joe v. Two=20 Thirty Nine Joint Venture, 145=20 S.W.3d 150, 156B57 (Tex.=20 2004).  To prevail on a traditional motion for summary = judgment, the=20 movant must show that there is no genuine issue as to any material = fact=20 and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. = 166a(c); Nixon=20 v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); = Aguirre v.=20 Vasquez, 225 S.W.3d 744, 750 (Tex. App.BBHouston=20 [14th Dist.] 2007, no pet.).  A defendant moving for summary = judgment=20 must conclusively negate at least one essential element of each of = the=20 plaintiff=3Ds causes=20 of action or conclusively establish each element of an affirmative = defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, = 911 (Tex.=20 1997); Shirvanian v. DeFrates, 161 S.W.3d 102, 106 (Tex.=20 App.BBHouston=20 [14th Dist.] 2004, pet. denied).  We take as true all = evidence=20 favorable to the non-movant, and we indulge every reasonable = inference and=20 resolve any doubts in the non-movant=3Ds favor.=20 Joe, 145 S.W.3d at 157; Aguirre, 225 S.W.3d at=20 750.

Analysis=20 of Trousdale=3Ds=20 Issues

A.     =20 The trial court improperly granted summary judgment on=20 Trousdale=3Ds breach=20 of fiduciary duty claims.

1.      =20 The non-fracturing rule.

In her=20 second issue, Trousdale contends that the non-fracturing rule does = not=20 apply to this case.  She argues that the trial court followed = a more=20 restrictive standard in evaluating her breach of fiduciary duty = claims=20 than that announced by this Court in Goffney v. Rabson, 56 = S.W.3d=20 186, 193B94 (Tex.=20 App.CHouston=20 [14th Dist.] 2001, pet. denied), and followed in our subsequent = decisions.=20 See McMahan v. Greenwood, 108 S.W.3d 467, 495B96 (Tex.=20 App.CHouston=20 [14th Dist.] 2003, pet. denied); Deutsch v. Hoover, Bax & = Slovacek,=20 L.L.P., 97 S.W.3d 179, 189B90 (Tex.=20 App.CHouston=20 [14th Dist.] 2002, no pet.).  In contrast, appellees contend = that the=20 non-fracturing rule was properly applied by the trial court = below. =20 Appellees assert that Trousdale=3Ds claims=20 amount to nothing more than a recast legal malpractice claim, as = they=20 merely consist of allegations that appellees failed to keep = Trousdale=20 adequately informed while she continued to pay them for their = legal=20 services.  Appellees argue that this is not the law in Texas, = and=20 contend that if such allegations are construed as claims for = breach of=20 fiduciary duty, then any alleged malpractice could be turned into = a breach=20 of fiduciary duty simply by paying one=3Ds=20 bills.  They further argue that the focus of a claim = for=20 breach of fiduciary duty is whether an attorney obtained an = improper=20 benefit from representing a client, and cite Kimleco Petroleum, = Inc. v.=20 Morrison & Shelton, 91 S.W.3d 921, 923 (Tex. = App.CFort Worth=20 2002, pet. denied), and Aiken v. Hancock, 115 S.W.3d 26, 28 = (Tex.=20 App.CSan=20 Antonio 2003, pet. denied), for this proposition.

The rule=20 against dividing or fracturing a negligence claim prevents legal=20 malpractice plaintiffs from opportunistically transforming a claim = that=20 sounds only in negligence into other claims. Deutsch, 97 = S.W.3d at=20 189 (citing Goffney, 56 S.W.3d at 188B94). =20 However, this is not to say that clients can sue their attorneys = only for=20 negligence. Id.  As this Court has explained before, = analysis=20 of claims in light of the non-fracturing rule is analogous to = determining=20 whether claims are contract or DTPA claims or whether they sound = in=20 contract or tort. Id. (citing Crawford v. Ace Sign, = Inc.,=20 917 S.W.2d 12, 13B15 (Tex.=20 1996); Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493,=20 493B95 (Tex.=20 1991)).

In a legal=20 malpractice claim, a plaintiff must prove that (1) the attorney = owed the=20 plaintiff a duty, (2) the duty was breached, (3) the breach = proximately=20 caused the plaintiff=3Ds=20 injuries, and (4) the plaintiff incurred damages. See = McMahan, 108=20 S.W.3d at 495 (citing Peeler v. Hughes & Luce, 909 = S.W.2d 494,=20 496 (Tex. 1995)).  Attorneys may also be held liable for a = breach of=20 fiduciary duty, but such a claim requires allegations of = self-dealing,=20 deception, or misrepresentations that go beyond the mere = negligence=20 allegations in a malpractice action. Id. (citing = Goffney, 56=20 S.W.3d at 193B94). =20 If the gist of a client=3Ds=20 complaint is that the attorney did not exercise that degree of = care,=20 skill, or diligence as attorneys of ordinary skill and knowledge = commonly=20 possess, then that complaint should be pursued as a negligence = claim,=20 rather than some other claim. Deutsch, 97 S.W.3d at 189 = (citing=20 Goffney, 56 S.W.3d at 190B94). =20 If, however, the client=3Ds=20 complaint is more appropriately classified as another claim, for = example,=20 fraud, DTPA, breach of fiduciary duty, or breach of contract, then = the=20 client can assert a claim other than negligence.=20 Id.

This Court=20 subscribes to the rule that a separate cause of action for breach = of=20 fiduciary duty exists if the allegations in the petition allege=20 self-dealing, deception, or misrepresentations in the = attorney=3Ds legal=20 representation of the client. Goffney, 56 S.W.3d at 194.[2] =20 We have never held that self-dealing, deception, and=20 misrepresentation must all be present in order for a breach of = fiduciary duty claim to stand; rather, we stated that the=20 allegations in support of a breach of fiduciary duty claim must = simply go=20 beyond the mere negligence allegations in a malpractice action.=20 McMahan, 108 S.W.3d at 495.

2.      =20 Trousdale alleged breach of fiduciary duty claims that are = separate from=20 her negligence claims.

In her=20 first issue, Trousdale contends that her breach of fiduciary duty = claims=20 were timely filed, as they are separate and independent from her = claims=20 for legal malpractice, and subject to a four-year statute of = limitations.=20 Specifically, she asserts that appellees misrepresented the status = of the=20 probate action and the reason her file could not be returned to = her, while=20 appellees (1) knew and failed to disclose that her cases had been=20 dismissed for want of prosecution; (2) continued to bill and = collect fees=20 from her; and (3) refused to return her file.  She claims = that these=20 actions constitute a breach of the fiduciary duties owed to = her.  She=20 further argues that these claims are subject to a four-year = statute of=20 limitations, which had not run as of the date she filed = suit.

We agree=20 with Trousdale that her claims for breach of fiduciary duties are = separate=20 and independent from her legal malpractice claims, and that they = were=20 timely filed.

In Texas,=20 a fiduciary relationship exists between attorneys and clients as a = matter=20 of law. Goffney, 56 S.W.3d at 193.  The Texas Supreme = Court=20 has noted that the term fiduciary Arefers to=20 integrity and fidelity@ = and=20 Acontemplates=20 fair dealing and good faith . . . as the basis of the=20 transaction.@ = Kinzbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, = 160=20 S.W.2d 509, 512 (1942).  To this end, the attorney-client=20 relationship is one of A>most=20 abundant good faith,=3D@ = requiring=20 absolute perfect candor, openness and honesty, and the absence of = any=20 concealment or deception. Goffney, 56 S.W.3d at 193 = (quoting=20 Perez v. Kirk & Carrigan, 822 S.W.2d 261, = 263B66 (Tex.=20 App.CCorpus=20 Christi 1991, writ denied)).  As a fiduciary, an attorney is=20 obligated to render a full and fair disclosure of facts material = to the=20 client=3Ds=20 representation. Willis v. Maverick, 760 S.W.2d 642, 645 = (Tex.=20 1988).  However, this duty to inform does not extend to = matters=20 beyond the scope of representation. Joe, 145 S.W.3d at=20 159B60.

This Court=20 has previously examined breach of fiduciary duty claims asserted = by=20 clients against their former attorneys. See, e.g., = Goffney,=20 56 S.W.3d at 194; Deutsch, 97 S.W.3d at 189; = McMahan, 108=20 S.W.3d at 477.  In Goffney, a client sued her former = attorney=20 for legal malpractice, breach of contract, DTPA violations, and = breach of=20 fiduciary duty. Goffney, 56 S.W.3d at 188.  The client = later=20 amended her petition to drop her legal malpractice claim, and = proceeded to=20 trial on her breach of contract, DTPA, and breach of fiduciary = duty=20 claims. Id. at 189.  In support of those claims, the = client=20 generally alleged that the attorney (1) did not properly prepare = the=20 lawsuit for trial; (2) failed to respond to special exceptions, = which=20 pointed out defects in her pleadings; and (3) failed to provide = timely=20 supplemental answers to interrogatories, thereby precluding the = attorney=20 from calling crucial witnesses. Id. at 190B91. =20 With respect to her breach of fiduciary duty claim, the client = alleged=20 that the attorney (1) abandoned her at trial; (2) did not properly = prepare=20 the lawsuit for trial; and (3) misled the client into believing = the case=20 had been properly prepared for trial. Id. at = 193.

The jury=20 found in favor of the client on all her claims, the trial court = entered=20 judgment substantially in accordance with the verdict, and the = attorney=20 appealed. Id. at 189B90. =20 In reversing the trial court=3Ds=20 judgment, we held that the client=3Ds breach=20 of contract, DTPA, and breach of fiduciary duty claims were = essentially=20 legal malpractice claims. Id. at 190.  Because the = client had=20 abandoned her legal malpractice claims before trial, we held that = she=20 could not recover on other causes of action which amounted to = nothing more=20 than restated claims for legal malpractice. Id.

With=20 respect to the breach of fiduciary duty claim, we noted that the=20 client=3Ds=20 allegations were the same as those made in support of her breach = of=20 contract and DTPA claims. Id. at 193.  We concluded = that these=20 allegations constituted nothing more than a claim for legal = malpractice,=20 and that they did not support a separate cause of action for = breach of=20 fiduciary duty. Id. at 194.  However, in our = discussion of the=20 latter, we explained:

Breach of=20 fiduciary duty by an attorney most often involves the = attorney=3Ds failure=20 to disclose conflicts of interest, failure to deliver funds = belonging to=20 the client, placing personal interests over the client=3Ds=20 interests, improper use of client confidences, taking advantage of = the=20 client=3Ds trust,=20 engaging in self-dealing, and making=20 misrepresentations.

Id.=20 at=20 193.  Because the client=3Ds=20 allegations did not amount to self-dealing, deception, or=20 misrepresentations in the attorney=3Ds legal=20 representation of the client, we concluded that they did not = support a=20 separate cause of action for breach of fiduciary duty. Id. = at=20 194.  We have since applied this standard for evaluating = breach of=20 fiduciary duty claims in light of the non-fracturing rule in = several=20 instances. See Deutsch, 97 S.W.3d at 189B90;=20 McMahan, 108 S.W.3d at 495B96.

In=20 Deutsch, a law firm sued its former client to recover = unpaid legal=20 fees. Deutsch, 97 S.W.3d at 184.  The client = counterclaimed,=20 asserting claims for negligence, breach of contract, breach of = fiduciary=20 duty, negligent misrepresentation, DTPA violations, and fraud = against the=20 law firm and the individual attorney who handled the file.=20 Id.  At the close of all the evidence at trial, the = law firm=20 moved for a directed verdict. Id.   The law firm = argued,=20 and the trial court agreed, that the client=3Ds=20 allegations had impermissibly fractured his negligence claim, and = that the=20 statute of limitations barred all of the client=3Ds claims=20 except for his negligence claim. Id. at 184B85,=20 189.  The trial court then submitted the case to the jury, = which=20 found that the client=3Ds own=20 negligence caused his injuries. Id. at 185.  The jury = awarded=20 the law firm the full amount of its unpaid bills, plus the=20 attorney=3Ds fees=20 incurred in bringing the collection suit. Id.  The = client=20 appealed. Id.

In=20 reversing the trial court=3Ds=20 judgment, we undertook an extensive examination of the fifteen = allegations=20 made in support of the client=3Ds breach=20 of fiduciary duty claim. Id. at 187B91. =20 We concluded that the gist of ten of the fifteen allegations was = that the=20 law firm did not exercise that degree of care, skill, or diligence = as=20 attorneys of ordinary skill and knowledge commonly possess, and = therefore=20 those allegations should be pursued only as a negligence claim. = Id.=20 at 189B90. =20 However, we further concluded that three of the client=3Ds=20 allegations, namely that the law firm (1) failed to counsel and = advise the=20 client about the conflicts of interest which arose during the law=20 firm=3Ds=20 representation of the client; (2) failed to withdraw from the=20 representation of the client once the conflicts arose; and (3) = failed to=20 advise the client to retain separate counsel in light of the law=20 firm=3Ds=20 conflicts of interest in representing the client, were = appropriately=20 classified as a breach of fiduciary duty claim independent of the=20 client=3Ds=20 negligence claim. Id. at 187, 190.  The gist of these=20 complaints was not that the law firm failed to exercise that = degree of=20 care, skill, or diligence as attorneys of ordinary skill and = knowledge=20 commonly possess. Id. at 190.  Rather, as we stated in = Goffney, these allegations were of the type that supported = a cause=20 of action for breach of fiduciary duty separate and independent = from a=20 claim for legal malpractice. Id. at 189 (citing = Goffney, 56=20 S.W.3d at 190B94).

Finally,=20 in McMahan, a client sued his former business associates = and his=20 former attorney for, among other things, fraud, fraudulent = inducement,=20 breach of fiduciary duty, and legal malpractice. McMahan, = 108=20 S.W.3d at 477.  Specifically, the client alleged that the = attorney=20 gave him false information and advice regarding the = client=3Ds stock=20 ownership in a business entity he formed with the other = defendants, and=20 that the attorney falsely told him he was a shareholder of the = business=20 entity in order to induce him into contributing assets to the = company.=20 Id. at 476, 495B96. =20 The client further alleged that the attorney failed to correct the = misrepresentation prior to the client=3Ds=20 execution of a settlement agreement with the other defendants, and = that=20 because the attorney gave him this false information and advice, = he=20 continued to transfer assets to the company and later signed the=20 settlement agreement, rather than attempting to recover the full = value of=20 the assets he contributed. Id. at 496.  The defendants = pleaded=20 numerous affirmative defenses, including release, ratification, = and=20 limitations, and the attorney moved for summary judgment on = traditional=20 and no-evidence grounds. Id. at 477.  The trial = court=20 granted the attorney=3Ds motions=20 for summary judgment, but did not specify the grounds upon which = the=20 motions were granted. Id.  The client=20 appealed.

In our=20 examination of the client=3Ds claims=20 against the attorney, we found that the client had presented more = than a=20 scintilla of evidence that the attorney made material = misrepresentations=20 to the client, that he had a duty to disclose the = client=3Ds lack of=20 stock ownership, and that the client justifiably relied on his=20 representations. Id. at 495.  We therefore concluded = that the=20 client=3Ds fraud=20 and fraudulent inducement causes of action survived the=20 attorney=3Ds=20 no-evidence motion for summary judgment. Id.  We = similarly=20 concluded that the client=3Ds legal=20 malpractice and breach of fiduciary duty claims survived the=20 attorney=3Ds motion=20 for summary judgment. Id. at 496.  The attorney did = not argue=20 that the non-fracturing rule barred the independent assertion of = claims of=20 breach of fiduciary duty; rather, the attorney merely argued that = there=20 was no evidence of an attorney-client relationship between himself = and the=20 client at the time the settlement agreement was executed. = Id. at=20 495B96. =20 We determined that the attorney had not sufficiently refuted the = existence=20 of an attorney-client relationship during the period surrounding = the=20 formation of the business entity, and stated that, contrary to the = attorney=3Ds=20 position, Texas law requires an attorney who has made = misstatements to a=20 client to make a full disclosure of the truth.[3]=20 Id. at 496 (citing Willis, 760 S.W.2d at 645; = Anderson,=20 Greenwood & Co. v. Martin, 44 S.W.3d 200, 212B13 (Tex.=20 App.CHouston=20 [14th Dist.] 2001, pet. denied)).

As noted=20 above, we have explained that breach of fiduciary duty by an = attorney=20 often involves the attorney=3Ds failure=20 to disclose conflicts of interest, failure to deliver funds = belonging to=20 the client, placing personal interests over the client=3Ds=20 interests, improper use of client confidences, taking advantage of = the=20 client=3Ds trust,=20 engaging in self-dealing, and making misrepresentations. See=20 Goffney, 56 S.W.3d at 194; see also McMahan, 108 S.W.3d = at=20 495; Deutsch, 97 S.W.3d at 190.  We have further = explained=20 that, in order to support a cause of action for breach of = fiduciary duty=20 separate and apart from a claim for legal malpractice, the = allegations in=20 the petition must amount to self-dealing, deception, or = misrepresentations=20 in the representation of the plaintiff that go beyond the mere = negligence=20 allegations in a legal malpractice action. McMahan, 108 = S.W.3d at=20 495;  Goffney, 56 S.W.3d at 194; see also = Deutsch, 97=20 S.W.3d at 190.

Here,=20 Trousdale asserted claims for legal malpractice and breach of = fiduciary=20 duties.  Trousdale alleged that appellees committed = malpractice when=20 they failed to (1) appear at trial settings in September-October = 2002,=20 which resulted in the dismissal of her cases for want of = prosecution; and=20 (2) take any action to request the Liberty County courts to = reinstate her=20 cases after their dismissal.  The gist of these complaints is = that=20 appellees did not exercise that degree of care, skill, or = diligence as=20 attorneys of ordinary skill and knowledge commonly possess, and = these=20 claims were properly pursued as claims for legal malpractice. = See=20 McMahan, 108 S.W.3d at 495.

However,=20 in her petition, Trousdale also alleged the following additional = failings=20 by appellees:

!           = ;       =20 Henry=20 only told her that they Amissed = it,@ referring to a = hearing that=20 was scheduled, not that the case has been dismissed;

!           = ;       =20 They=20 failed to disclose the dismissal of her claims to her;

!           = ;       =20 They=20 continued to demand and accept payment for their services, even = after her=20 cases were dismissed and Henry refused to speak with = her;

!           = ;       =20 They=20 misrepresented to her that her cases could not be rescheduled, and = that=20 she could not obtain copies of pleadings and orders, because the = files=20 were Asealed@; and

!           = ;       =20 They=20 intentionally refused to return her files to her to conceal that = her cases=20 had been dismissed and were time-barred.

These=20 allegations go beyond the mere negligence allegations in a legal=20 malpractice action.  They involve allegations of deception = and=20 misrepresentations committed by appellees while they represented = Trousdale=20 and while they still owed her duties. See = id.

If=20 Trousdale had alleged only that appellees negligently allowed the = Liberty=20 County lawsuits to be dismissed for want of prosecution, her = claims would=20 amount only to one for legal malpractice. See Latham v. = Castillo,=20 972 S.W.2d 66, 69 (Tex. 1998) (distinguishing between legal = malpractice=20 claims and claims for violation of the DTPA); Sullivan v. = Bickel &=20 Brewer, 943 S.W.2d 477, 482B83 (Tex.=20 App.CDallas=20 1995, writ denied) (distinguishing between legal malpractice = claims and=20 claims for fraudulent billing practices); Jampole v. = Matthews, 857=20 S.W.2d 57, 62 (Tex. App.CHouston=20 [1st Dist.] 1993, writ denied) (same).  But, that is not what = she=20 alleged in her breach of fiduciary duty cause of action.  She = alleged=20 more, as we have listed above:  when Trousdale called about a = hearing=20 in the probate action, Henry stated only that a hearing had been = missed,=20 not that the cases were dismissed; Henry told her she could not = get copies=20 of her file because the files were sealed; and the firm refused to = return=20 her files for almost two years after she asked for their return, = and they=20 did this to conceal that both the probate action and the district = court=20 action were dismissed. See Latham, 972 S.W.2d at 69. =20 Construing these facts and allegations in the light most favorable = to=20 Trousdale, we conclude that her claims for breach of fiduciary = duty are=20 separate and independent from her claims for legal = malpractice.

3.      =20 Trousdale=3Ds breach=20 of fiduciary duty claims were timely filed.

To be=20 considered timely, claims for breach of fiduciary duty must be = filed=20 within four years of the date the cause of action accrues. Tex. Civ. Prac. & Rem. = Code=20 _ = 16.004(a)(5).  Generally, a cause of action accrues, and the = statute=20 of limitations begins to run, when facts come into existence that=20 authorize a claimant to seek a judicial remedy. Johnson & = Higgins=20 of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 = (Tex.=20 1998).

Trousdale=20 filed suit in December 2005.  She alleges that appellees = breached the=20 fiduciary duties owed to her, and therefore her cause of action = accrued,=20 in December 2002 and January 2003.  While appellees do not = deny that=20 the acts constituting the alleged breach were committed during = this time=20 frame, they contend that Trousdale knew of her alleged injury, at = the very=20 latest, in June 2003.

Assuming=20 without deciding that Trousdale=3Ds cause of=20 action for breach of fiduciary duty accrued as early as December=20 2002Con=20 Trousdale=3Ds first=20 conversation with HenryCTrousdale=20 filed suit on her breach of fiduciary duty claims within the = four-year=20 statute of limitations by filing in December 2005.

In short,=20 we hold that the trial court erred in granting = appellees=3D = motion=20 for summary judgment on Trousdale=3Ds claims=20 for breach of fiduciary duty based on appellees=3D = statute=20 of limitations defense.  Therefore, we sustain = Trousdale=3Ds first=20 and second issues.

B.     =20 Trousdale=3Ds legal=20 malpractice claims are time-barred.

In her=20 third issue, Trousdale contends that she timely filed her legal=20 malpractice claims.  Although these claims are subject to a = two-year=20 statute of limitations, she maintains that the fraudulent = concealment=20 doctrine tolled the running of limitations until appellees = returned her=20 file in August or September 2005.  She asserts that a breach = of the=20 duty to disclose is tantamount to concealment, and reasons that=20 appellees=3D = failure=20 to disclose the dismissal of the Liberty County lawsuits, coupled = with=20 appellees=3D = refusal=20 to return her file until August or September 2005, should result = in the=20 tolling of limitations until that time.

Trousdale=20 further contends that the trial court erred in sustaining=20 appellee=3Ds=20 objection to her affidavit and striking a statement from that = affidavit,=20 as the statement did not conflict with her earlier deposition=20 testimony.  She argues that even if there is a slight = conflict=20 between the two, a genuine issue of material fact exists that = precludes=20 summary judgment on when she discovered or should have discovered = her=20 cause of action.

In=20 contrast, appellees contend that neither the fraudulent = concealment=20 doctrine nor the discovery rule tolled limitations on=20 Trousdale=3Ds legal=20 malpractice claims until August or September 2005.  They = assert that=20 Trousdale admitted knowledge of, and intent to sue for, her claims = in June=20 2003, and that Trousdale was even aware of the full extent of her = injuries=20 by that time.  Appellees therefore argue that the tolling = effect of=20 the discovery rule and the fraudulent concealment doctrine = terminated, and=20 the statute of limitations on Trousdale=3Ds legal=20 malpractice claims began to run, as of June 2003.  Appellees = further=20 contend that the trial court did not abuse its discretion in = striking a=20 statement from Trousdale=3Ds=20 affidavit, as that statement materially contradicted her earlier=20 deposition testimony and handwritten notes, and merely represented = an=20 attempt to create a fact issue to avoid summary = judgment.

We agree=20 with appellees that neither the fraudulent concealment doctrine = nor the=20 discovery rule tolled limitations on Trousdale=3Ds legal=20 malpractice claims until August or September 2005.

1.      =20 The discovery rule and the fraudulent concealment doctrine did not = toll=20 limitations on Trousdale=3Ds legal=20 malpractice claims until August or September 2005.

a.      =20 The discovery rule and the fraudulent concealment = doctrine.

In=20 claiming that the statute of limitations was tolled, Trousdale = asks us to=20 hold preliminarily that the trial court erred in striking one = statement=20 from her affidavit.  We do not address that claim; even if = the trial=20 court did err in striking the statementCa holding=20 we do not reachCher claims=20 would still be barred.[4]

In Texas,=20 legal malpractice actions are governed by a two-year statute of=20 limitations.  Willis, 760 S.W.2d at 644.  = Limitations=20 generally begin to run when facts have come into existence that = authorize=20 a claimant to seek a judicial remedy. Apex Towing Co. v. = Tolin, 41=20 S.W.3d 118, 120 (Tex. 2001).

However,=20 the Texas Supreme Court has held that the discovery rule applies = to legal=20 malpractice claims, since Ait is=20 unrealistic to expect a layman client to have sufficient legal = acumen to=20 perceive an injury at the time of the negligent act or omission of = his=20 attorney.@ = Willis, 760 S.W.2d at 645.  Under the discovery = rule,=20 the statute of limitations for legal malpractice actions does not = begin to=20 run until the claimant discovers or should have discovered through = the=20 exercise of reasonable care and diligence the facts establishing = his cause=20 of action. Id. at 646.  Discovery occurs when a = plaintiff has=20 knowledge of such facts, conditions, or circumstances as would = cause a=20 reasonably prudent person to make an inquiry that would lead to = discovery=20 of the cause of action. Bell v. Showa Denko K.K., 899 = S.W.2d 749,=20 753B54 (Tex.=20 App.CAmarillo=20 1995, writ denied); Smith v. Cutrer & Jefferson, No.=20 14-00-00100-CV, 2002 WL 87485, at *4 (Tex. App.CHouston=20 [14th Dist.] Jan. 24, 2002, no pet.) (not designated for=20 publication).  Knowledge of such facts is, in law, equivalent = to=20 knowledge of the cause of action for limitations purposes. See = White v.=20 Bond, 362 S.W.2d 295, 295 (Tex. 1962).

A=20 defendant seeking summary judgment on the basis of limitations = must=20 conclusively prove when the cause of action accrued and must = negate the=20 discovery rule by proving that, as a matter of law, there is no = genuine=20 issue of fact about when the plaintiff discovered or should have=20 discovered the nature of his injury. KPMG Peat Marwick v. = Harrison=20 County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. = 1999).  If the=20 movant establishes that the statute of limitations bars the = action, the=20 nonmovant must then adduce summary judgment proof raising a fact = issue in=20 avoidance of the statute of limitations. = Id.

The=20 fraudulent concealment doctrine is an affirmative defense to the = statute=20 of limitations. See id. at 749; Ponder v. Brice &=20 Mankoff, 889 S.W.2d 637, 645 (Tex. App.CHouston=20 [14th Dist.] 1994, writ denied).  This doctrine provides that = where a=20 defendant is under a duty to make a disclosure but fraudulently = conceals=20 the existence of a cause of action from the party to whom it = belongs, the=20 defendant is estopped from relying on the defense of limitations = until the=20 party learns of the right of action or should have learned thereof = through=20 the exercise of reasonable diligence. Ponder, 889 S.W.2d at = 645.  However, the estoppel effect of fraudulent concealment = ends=20 when a party learns of facts, conditions, or circumstances which = would=20 cause a reasonably prudent person to make inquiry, which, if = pursued,=20 would lead to discovery of the concealed cause of action. Id.=20 (citing Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex.=20 1983)).  Notably, this is the same standard that = applies  to the=20 discovery rule. Compare Borderlon, 661 S.W.2d at 909, = with=20 Bell, 899 S.W.2d at 754.

To prove=20 fraudulent concealment, a plaintiff must demonstrate the defendant = had (1)=20 actual knowledge that a wrong occurred; (2) a duty to disclose the = wrong;=20 and (3) a fixed purpose to conceal the wrong. McMahan, 108 = S.W.3d=20 at 493.  Here, appellees sought summary judgment on, among = other=20 things, the issue of whether the fraudulent concealment doctrine = tolled=20 limitations on Trousdale=3Ds legal=20 malpractice claims until August or September 2005.

As we=20 explain below, based upon the summary judgment evidence appellees = attached=20 to their motion for summary judgment, we conclude that appellees = proved as=20 a matter of law that, as of June 2003, Trousdale knew facts that = would=20 cause a reasonably prudent person to make an inquiry which, if = pursued,=20 would lead to discovery of her legal malpractice causes of = action. =20 Appellees therefore demonstrated that neither the discovery rule = nor the=20 fraudulent concealment doctrine tolled limitations on=20 Trousdale=3Ds legal=20 malpractice claims until August or September 2005, and thus met = their=20 burden on summary judgment.  The evidence Trousdale attached = to her=20 response to the summary judgment motion did not create a fact=20 issue.

b.      =20 Appellees proved that, as of June 2003, Trousdale knew facts that = would=20 cause a reasonably prudent person to investigate and to discover = the legal=20 malpractice causes of action.

The=20 summary judgment evidence produced by appellees on the limitations = issue=20 consists of the following:

!           = ;       =20 Excerpts=20 from Trousdale=3Ds = deposition:

"           = ;       =20 In=20 January 2003, Henry told Trousdale something was missed in = connection with=20 her probate action;

"           = ;       =20 Henry=20 told Trousdale the case was sealed and that Trousdale would need a = probate=20 lawyer attorney to pursue things further;

"           = ;       =20 Henry=20 hung up on Trousdale when Trousdale asked Henry to reschedule the = probate=20 hearing;

"           = ;       =20 Henry=20 refused to answer Trousdale=3Ds phone = calls.

!           = ;       =20 Trousdale=20 sends a fax to a potential lawyer claiming she needs to sue Henry = because=20 Aeverything I have = worked for is=20 goneCeven my=20 inheritance.@

Trousdale=3Ds=20 affidavit attached to her summary judgment response contained the=20 following evidence:

!           = ;       =20 Henry=20 told Trousdale she could not obtain her file from either Henry or = the=20 Liberty County courthouse because the file was sealed;

!           = ;       =20 Henry did=20 not tell her the status of the district court action and she=20 didn=3Dt ask;

!           = ;       =20 Appellees=20 never told her either action was dismissed;

!           = ;       =20 Trousdale=20 didn=3Dt discover either = action had=20 been dismissed until she received the file in August-September of=20 2005;

!           = ;       =20 Trousdale=20 first knew she had a risk of harm in the district court action = when she=20 received her files;

!           = ;       =20 After the=20 last conversation with Henry, Trousdale began looking for a new = probate=20 attorney;

!           = ;       =20 Trousdale=20 continued paying her legal bills while looking for a new=20 attorney;

!           = ;       =20 Trousdale=20 still considered appellees her attorneys until she hired a new = probate=20 attorney and, since she never hired a new attorney in the district = court=20 action and they never withdrew, she considered them her attorneys=20 throughout.

Even=20 taking all of Trousdale=3Ds=20 statements in her summary judgment affidavit as true, they do not = overcome=20 the negative information Trousdale knew that should have caused = her to=20 investigate more:

!           = ;       =20 something=20 related to her probate case was missed;

!           = ;       =20 her=20 lawyer hung up on her and refused to accept her calls;

!           = ;       =20 her=20 lawyer told her she should hire a new probate lawyer;

!           = ;       =20 Trousdale=20 had at least preliminary discussions with a new lawyer;

!           = ;       =20 Trousdale=20 sent this new lawyer a fax telling him she needed to sue Henry = because she=20 had lost everything, including her inheritance.[5]

This=20 information would have prompted a reasonable person to investigate = further=20 and, ultimately, to discover that her actions were dismissed and = that she=20 should consider filing a malpractice action.[6]

In short,=20 because no fact question exists about when Trousdale=3Ds legal=20 malpractice causes of action accrued and limitations began to run, = the=20 trial court did not err in granting summary judgment in favor of = appellees=20 on Trousdale=3Ds legal=20 malpractice claims.  We therefore overrule = Trousdale=3Ds final=20 issue.

 

Conclusion

In=20 summary, we conclude that the trial court erred in viewing=20 Trousdale=3Ds breach=20 of fiduciary duty claims as nothing more than claims for legal=20 malpractice.  We reverse that portion of the trial = court=3Ds order=20 granting summary judgment on Trousdale=3Ds breach=20 of fiduciary duty claims and dismissing those claims with = prejudice. =20 However, we agree with the trial court that neither the discovery = rule nor=20 the fraudulent concealment doctrine tolled the running of the = statute of=20 limitations on Trousdale=3Ds legal=20 malpractice claims until August or September 2005.  We affirm = that=20 portion of the trial court=3Ds order=20 granting summary judgment on Trousdale=3Ds legal=20 malpractice claims and dismissing those claims with = prejudice.  We=20 remand the case to the trial court for further proceedings in = accordance=20 with this opinion.

 

 

 

 

/s/     =20 Wanda McKee Fowler

Justice

 

 

 

 

Judgment=20 rendered and Majority and Dissenting Opinions filed June 24,=20 2008.

Panel=20 consists of Justices Yates, Fowler, and Guzman (Guzman, J., = concurring and=20 dissenting).

 


[1]  Appellees attached to their joint = motion=20 for summary judgment a copy of a facsimile transmission from = Trousdale to=20 J.D. Johnson, Trousdale=3Ds prospective attorney, dated June 17, = 2003. =20 In this transmission, titled AExplanation and Facts For = Lawsuit,@ Trousdale recounted the events leading = to the=20 lawsuits filed in Liberty County, and summarized the actions taken = and=20 representations made by Henry in her legal representation of=20 Trousdale.  At the conclusion of the transmission, Trousdale = notes,=20 AI want to sue her for my inheritance and = goods in=20 apartment.  P.S. I must file a lawsuitCIt is not an option not to file against = Annette=20 Henry and her office.  Everything I have worked for is=20 goneCEven my inheritance.@  Appellees contend that this = statement=20 confirms that Trousdale knew of the facts supporting her claims by = June=20 2003, at the latest.

[2]  Although appellees claim that = self-dealing,=20 deception, and misrepresentation must all be present for a breach = of=20 fiduciary duty claim to stand, our cases hold differently. See=20 Goffney, 56 S.W.3d at 193B94; Deutsch, 97 S.W.3d at 189;=20 McMahan, 108 S.W.3d at 495.  In addition, in a = non-lawyer=20 breach of fiduciary duty setting, Texas courts have never held = that all=20 three must be present. See W. Reserve Life Assurance Co. of = Ohio v.=20 Graben, 233 S.W.3d 360, 374 (Tex. App.CFort Worth 2007, no pet.) (explaining = that a=20 financial adviser breaches the fiduciary duties owed to his client = when he=20 (1) fails to put his client=3Ds interests above his own; (2) treats = his clients=20 unfairly; (3) fails to make reasonable use of the confidence his = clients=20 place in him; (4) fails to act in the utmost good faith and fails = to=20 exercise the most scrupulous honesty toward his clients; or = (5)=20 fails to fully and fairly disclose all important information to = his=20 clients concerning a transaction); Dunnagan v. Watson, 204 = S.W.3d=20 30, 46 (Tex. App.CFort Worth 2006, pet. denied) (stating = that a=20 limited partner breaches the fiduciary duties owed to the limited=20 partnership when he (1) enters into a transaction that is not fair = and=20 equitable to the limited partnership; (2) fails to act in the = utmost good=20 faith and fails to exercise the most scrupulous honesty toward the = limited=20 partnership; (3) places his own interest before the limited=20 partnership=3Ds interests; (4) uses his position to = gain any=20 benefit for himself at the expense of the limited partnership; = or=20 (5) he places himself in a position where his self-interest = might=20 conflict with his obligations as a fiduciary); Abetter Trucking = Co. v.=20 Arizpe, 113 S.W.3d 503, 510 (Tex. App.CHouston [1st Dist.] 2003, no pet.) = (explaining=20 that an employee breaches the fiduciary duties owed to his = employer when=20 he (1) competes with his employer on his own account in matters = relating=20 to the subject matter of his employment; (2) fails to deal fairly = and=20 openly with his employer in all transactions between them; (3) = fails to=20 fully disclose to his employer information about matters affecting = the=20 company=3Ds business; or (4) uses his = position to=20 gain a business opportunity belonging to his employer); Lesikar = v.=20 Rappeport, 33 S.W.3d 282, 296B97 (Tex. App.CTexarkana 2000, pet. denied) (explaining = that the=20 executrix of an estate breaches the fiduciary duties owed to the = estate=20 beneficiaries when she (1) violates her duty of good faith and = candor to=20 the beneficiaries; (2) fails to fully disclose to the = beneficiaries=20 matters affecting the beneficiaries=3D interests; (3) uses the advantage of = her position=20 to gain any benefit for herself at the expense of the estate; (4) = places=20 herself in any position where her self-interest will or may = conflict with=20 her obligations as executrix); or (5) makes a profit out of = the=20 estate); NRC, Inc. v. Huddleston, 886 S.W.2d 526, 530 (Tex. = App.CAustin 1994, no writ) (stating that a = real estate=20 agent breaches the fiduciary duties owed to his client when he (1) = violates his duty of good faith and candor; (2) fails to fully = disclose to=20 the client respecting matters affecting the client=3Ds interests; or (3) uses the = relationship=20 to benefit his personal interest); see also Burrow v. Arce, = 997=20 S.W.2d 229, 237B40 (Tex. 1999) (consulting agency law = and=20 non-lawyer breach of fiduciary duty cases to determine not only = the bounds=20 of the fiduciary duty owed by lawyers but also to determine = whether=20 economic harm was necessary before a client could sue).  As a = result,=20 we decline to adopt a more stringent standard.

[3]  While McMahan = does not=20 expressly address the non-fracturing rule, that opinion is = noteworthy for=20 our recitation of the standard that governs our analysis of causes = of=20 action in light of that rule. See McMahan, 108 S.W.3d at=20 495B96.  There, we = stated:

 

Attorneys may be = liable for a=20 breach of fiduciary duty, but such a claim requires allegations of = self-dealing, deception, or misrepresentations that go beyond the = mere=20 negligence allegations in a malpractice action.  If the gist = of the=20 client=3Ds complaint is that = the=20 attorney did not exercise that degree of care, skill, or diligence = as=20 attorneys of ordinary skill and knowledge commonly possess, then = that=20 complaint should be pursued as a negligence claim, rather than = some other=20 claim. If, however, the client=3Ds complaint is more = appropriately classified as a fraud, DTPA, breach of fiduciary = duty, or=20 breach of contract complaint, then the client can assert a claim = other=20 than negligence.

 

Id. = (internal citations = omitted). 

[4]  In the struck statement, = Trousdale states,=20 AThe first time I realized I had a risk = of harm was=20 in August or September 2005 when I saw this in the file I had been = given.@  This is a subjective statement, = reflecting=20 her personal belief, which is a subjective standard.  As we = state=20 below, the discovery rule and the fraudulent concealment doctrine = both=20 measure what the client should have known based on a reasonable = person=20 standardCan objective standard.

[5]  Trousdale claims that the fax = does not=20 really mean that she knew she had lost everything.  Trousdale = misses=20 the significance of the fax.  The fax shows that, even as of = June=20 2003, she thought that something was amiss regarding her=20 lawyers=3D representation of her and she was = concerned that=20 her inheritance might be in jeopardy.  Taking into account = the other=20 negative indicatorsCsuch as her lawyer refusing to accept = her=20 callsCat this point, a reasonable person would = have=20 investigated fully the status of her causes of action and hired a = new=20 lawyer, if necessary, to fully investigate.

[6]  In fact, Trousdale could have = discovered=20 that the probate action and the district court action had been = dismissed=20 for want of prosecution by examining the public record, and, by = this time,=20 she should have been suspicious enough to inquire about the two = actions at=20 the courthouse.  The matters disclosed in public records = filed in a=20 county courthouseCincluding the dismissal of a legal=20 actionChave been held to preclude application = of the=20 discovery rule to toll the accrual of limitations on a cause of = action.=20 See Lang v. City of Nacogdoches, 942 S.W.2d 752, 758 (Tex.=20 App.CTyler 1997, writ denied) (holding = discovery rule=20 inapplicable to facts of case because appellants were charged with = constructive notice of what could have been known by examination = of the=20 public record; dismissal of criminal case against appellants was a = matter=20 of public record, and Athey or their attorney could have = discovered the=20 dismissal by examining the public records@).  A person is charged with = constructive=20 notice of the actual knowledge that could have been acquired by = examining=20 public records, and constructive notice in law creates an = irrebuttable=20 presumption of actual notice. Mooney v. Harlin, 622 S.W.2d = 83, 85=20 (Tex. 1981).  Furthermore, when evidence of a cause of action = may be=20 disclosed by examination of public records, limitations begin to = run from=20 the time the cause of action could have been discovered by the = exercise of=20 ordinary diligence. See id. (citing Sherman v. = Sipper, 137=20 Tex. 85, 152 S.W.2d 319, 321=20 (1941)).

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FONT-SIZE: 9pt; COLOR: #000099; FONT-FAMILY: Arial = Narrow } .SiteMaster { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-DECORATION: underline } A.SiteMaster { LINE-HEIGHT: normal; TEXT-DECORATION: underline } A.SiteMaster:hover { COLOR: blue } .SiteMenu { FONT-WEIGHT: bold; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteMenu { FONT-WEIGHT: bold; TEXT-DECORATION: none } A.SiteMenu:hover { COLOR: blue } .SiteBase { FONT-WEIGHT: bold; FONT-SIZE: 9pt; COLOR: #000099; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } A.SiteBase { FONT-WEIGHT: bold; COLOR: maroon; FONT-FAMILY: Tahoma, Arial, = Helvetica, sans-serif; TEXT-DECORATION: none } A.SiteBase:hover { COLOR: blue } .ErrorNormal { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .ErrorSmall { FONT-WEIGHT: normal; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: red; = FONT-FAMILY: Arial Narrow } .SystemMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: = navy } .SystemErrorMSG { FONT-WEIGHT: bold; FONT-SIZE: 10pt; VERTICAL-ALIGN: top; COLOR: white; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; BACKGROUND-COLOR: red } .buttonUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #fff5d7; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #576a9d; font-face: Tahoma, Arial, Helvetica, = sans-serif } .buttonTanUnused { PADDING-RIGHT: 1pt; PADDING-LEFT: 1pt; FONT-WEIGHT: normal; FONT-SIZE: = 9pt; PADDING-BOTTOM: 1pt; MARGIN: 1pt; COLOR: #576a9d; PADDING-TOP: 1pt; = BACKGROUND-COLOR: #fff5d7; font-face: Tahoma, Arial, Helvetica, = sans-serif } .TextLargeBlue { FONT-WEIGHT: bold; FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0000_01C8D5EA.0FEF3E60--