Opinion issued November 15, =
2007 &=
nbsp; &n=
bsp; &nb=
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p; =
;
In The
Court of Appeals
For The
First District of =
Texas
NO. 01-06-00044-CV
__________
JOHN =
LEWIS NOWAK,=20
Appellant
V.
JEANNE=20
PELLIS AND JOHN HEISLER, Appellees
On =
Appeal from=20
the 61st District Court
Harris =
County,=20
Texas
Trial =
Court Cause=20
No. 2004-09878
O P I =
N I O=20
N
<=
/SPAN>John=20
Lewis Nowak, appellant, brought a legal malpractice action against =
Jeanne=20
Pellis and John Heisler (=E2=80=9Cthe attorneys=E2=80=9D), =
appellees, for their actions in=20
representing him in a medical malpractice suit. The attorneys =
filed a=20
motion for summary judgment, arguing that part of Nowak=E2=80=99s =
claim was barred=20
by the statute of limitations and that Nowak=E2=80=99s recovery is =
precluded by=20
the =E2=80=9Cone satisfaction=E2=80=9D rule based on his previous =
settlement with an=20
underlying defendant. The trial court granted the =
attorneys=E2=80=99 motion for=20
summary judgment. Nowak appeals, asserting that the court erred in =
granting summary judgment because (1) the statute of limitations =
was=20
tolled under the Hughes ![3DFootnote](3D"")
rule, and (2) the one =
satisfaction rule is=20
inapplicable because the attorneys failed to prove that Nowak =
received=20
full satisfaction for his injuries from his settlement with the =
underlying=20
defendant. We reverse the trial court=E2=80=99s granting of the =
attorneys=E2=80=99 motion=20
for summary judgment and remand for a new trial.
Factual and=20
Procedural History
<=
/SPAN>On=20
May 31, 1990, Nowak underwent surgery for a shoulder injury at =
Twelve Oaks=20
Hospital. Dr. Fernando Azevedo, a member of Greater Houston =
Anesthesia,=20
administered anesthesia to Nowak. Following the surgery, Nowak =
contracted=20
a staph infection in his shoulder. He hired Pellis to file a =
medical=20
malpractice suit against Dr. Azevedo, Twelve Oaks, and Greater =
Houston=20
Anesthesia. Heisler later appeared as Pellis=E2=80=99s co-counsel =
at a=20
court-ordered mediation. The attorneys failed to timely serve =
Azevedo, and=20
Twelve Oaks and Greater Houston Anesthesia filed motions for =
summary=20
judgment based on Nowak=E2=80=99s lack of expert testimony =
establishing a breach=20
in the applicable standards of care regarding the treatment, =
diagnosis,=20
and monitoring of Nowak. Pellis then filed a motion to withdraw as =
Nowak=E2=80=99s=20
counsel. The trial court granted Pellis=E2=80=99s motion to =
withdraw, and Nowak=20
eventually hired Joe Alfred Izen, Jr. to represent him. Izen filed =
a=20
motion to enlarge time to file a response to the motions for =
summary=20
judgment. The trial court denied the motion to enlarge time and =
granted=20
Twelve Oaks=E2=80=99s and Greater Houston Anesthesia=E2=80=99s =
motions for summary=20
judgment.
<=
/SPAN>Nowak=20
attempted to appeal the denial of the motion to enlarge time, but =
the=20
court of appeals dismissed the appeal because the district =
clerk=E2=80=99s office=20
failed to timely file the clerk=E2=80=99s record. Nowak responded =
by filing a bill=20
of review. The trial court granted Greater Houston =
Anesthesia=E2=80=99s=20
summary judgment on the bill of review. After successfully =
arguing that=20
he was never served and the time for so doing had expired, Azevedo was also granted =
summary=20
judgment. The Amarillo court of appeals reversed the trial =
court=E2=80=99s=20
granting of summary judgment on Nowak=E2=80=99s bill of review and =
remanded the=20
case for a new trial. At =
this=20
point, Twelve Oaks settled with Nowak for an undisclosed amount. =
Nowak=20
also filed a motion to nonsuit Azevedo, which was granted =
on April=20
4, 1995. This left Greater Houston Anesthesia as the last =
remaining=20
defendant from Nowak=E2=80=99s medical malpractice suit. =
Nowak=E2=80=99s bill of review=20
against Greater Houston Anesthesia was eventually dismissed, which =
ended=20
the litigation concerning Nowak=E2=80=99s medical malpractice =
suit.
<=
/SPAN>On=20
February 6, 2004, Nowak sued the attorneys for legal malpractice =
based on=20
their handling of his medical malpractice suit. Specifically, =
Nowak=20
asserted that the attorneys committed legal malpractice by failing =
to=20
timely serve Azevedo, conduct proper discovery, and obtain expert=20
testimony on the defendants=E2=80=99 standards of care. The =
attorneys filed a=20
motion for summary judgment, arguing that the statute of =
limitations=20
barred all of Nowak=E2=80=99s legal malpractice claims, or, at =
least, his claim=20
relating to the attorneys=E2=80=99 failure to timely serve =
Azevedo, and that the=20
one satisfaction rule precluded Nowak from recovering anything =
further.=20
The trial court granted the attorneys=E2=80=99 motion for summary =
judgment,=20
disposing of all issues. Nowak appeals.
Summary=20
Judgment
<=
/SPAN>In=20
his sole issue on appeal, Nowak argues that the trial court erred =
in=20
granting the attorneys=E2=80=99 motion for summary judgment. Nowak =
asserts that=20
the statute of limitations on his legal malpractice claim was =
tolled under=20
the Hughes rule, which holds that a claim against an =
attorney for=20
legal malpractice is tolled until appeals on the underlying claim =
which is=20
the basis of the malpractice have been exhausted. Hughes, 821 S.W.2d at=20
157. Nowak also contends that the trial court =
erred=20
in granting summary judgment based on the one satisfaction rule, =
because=20
the attorneys never alleged or proved that Nowak received full=20
satisfaction for his injuries from his settlement with Twelve =
Oaks.
Standard of=20
Review
=
A=20
party moving for traditional summary judgment has the burden of =
proving=20
that there is no genuine issue of material fact and that the =
movant is=20
entitled to judgment as a matter of law. Tex. R. Civ. P.=20
166a(c). When a=20
defendant moves for traditional =
summary judgment, he must =
either (1)=20
disprove at least one element of the plaintiff=E2=80=99s cause of =
action or (2) plead and =
conclusively=20
establish each essential element of its affirmative defense, thereby =
defeating=20
the plaintiff=E2=80=99s cause of action. Cathey v.=20
Booth, 900 S.W.2d 339, =
341 (Tex.=20
1995); Yazdchi v. Bank=20
One,=20
Tex., N.A.,=20
177 S.W.3d 399, 404 (Tex. App.=E2=80=94Houston [1st Dist.] 2005, =
pet. denied). We=20
review the granting of summary judgment de novo.=20
See=20
Nelson v.=20
Cheney, 193 S.W.3d 161, =
165 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2006, no pet.).
=
When=20
reviewing a summary judgment, we take as true evidence favorable =
to the=20
nonmovant and indulge every reasonable inference and resolve any =
doubts in=20
favor of the nonmovant. See Nixon v. Mr. Prop. =
Mgmt.=20
Co., 690 S.W.2d 546, =
548=E2=80=9349=20
(Tex. 1985). When a summary judgment does not =
specify or=20
state the grounds on which the trial court relied, the nonmovant =
on appeal=20
must negate any grounds on which the trial court could have =
relied, and we=20
will affirm the summary judgment on appeal =
if any of=20
the grounds presented in the motion is meritorious. =
See Harwell v. State =
Farm Mut.=20
Auto. Ins. Co., 896 S.W.2d 170, =
173 (Tex.=20
1995); Mellon Serv. Co. =
v. Touche=20
Ross & Co., 17 S.W.3d 432, =
435 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2000, no pet.). A nonmovant is =
required to show=20
that each ground alleged in the motion for summary judgment was =
insufficient to=20
support summary judgment. =
Star-Telegram, =
Inc. v.=20
Doe, 915 S.W.2d 471, =
473 (Tex.=20
1995).
The =
Hughes=20
Rule
&nbs=
p;Novak=20
first asserts that the trial court erred in granting the =
attorneys=E2=80=99=20
motion for summary judgment because his legal malpractice cause of =
action=20
against them was not barred by the statute of limitations.=20
Specifically, Novak =
argues that=20
the =
Hughes rule tolled the =
statute of=20
limitations on his =
legal malpractice claims =
until all=20
appeals were exhausted in the underlying litigation made the =
subject of=20
this suit. See =
Hughes, 821 S.W.2d at=20
157.
=
A=20
two-year statute =
of limitations =
governs legal malpractice =
claims. Tex. Civ. Prac. & Rem.Code=20
Ann. =C2=A7=20
16.003 (Vernon=20
Supp. 2006); Willis v.=20
Maverick, 760 S.W.2d 642, =
644 (Tex.=20
1988). The statute of limitations begins to run when the claim =
accrues.=20
Tex. Civ. Prac. & =
Rem. Code=20
Ann. =C2=A7=20
16.003. A legal=20
malpractice claim accrues when the client sustains a legal injury =
or, in=20
cases governed by the discovery rule, when the client discovers or =
should=20
have discovered through the exercise of reasonable care and =
diligence the=20
facts establishing the elements of the claim. Hughes, 821 S.W.2d at =
156;=20
see also=20
S.V. =
v.=20
R.V., 933 S.W.2d 1, 4 =
(Tex. 1996)=20
(legal injury rule); Willis, 760 S.W.2d at 646 =
(discovery rule).
=
However,=20
in Hughes, the Texas Supreme =
Court=20
established an equitable tolling rule for =
the statute=20
of limitations in legal malpractice cases: =E2=80=9C[W]hen an attorney =
commits=20
malpractice in the prosecution or defense of a claim that results =
in=20
litigation, the statute of limitations on the malpractice claim =
against=20
the attorney is tolled until all appeals on the underlying claim =
are=20
exhausted.=E2=80=9D=20
821 =
S.W.2d at=20
157. =
The court =
expressed two=20
policy reasons for tolling the statute of limitations when an =
attorney=20
commits malpractice in the prosecution or defense of a claim that =
results=20
in litigation. Id. at 821 S.W.2d at 156=E2=80=9357. The =
court first pointed=20
out that the legal injury rule and the discovery rule can force a =
client=20
into the untenable position of having to adopt inherently =
inconsistent=20
litigation postures in the underlying case and the malpractice =
case.=20
Id. at 156 (noting =
that party=20
might be placed in a position of asserting that her attorney =
committed=20
malpractice, and, but for malpractice, her claim would have =
succeeded,=20
while at same time asserting in an underlying appeal that =
attorney=E2=80=99s=20
actions were correct, or at least not fatal to her claim). The =
court then=20
explained that limitations should be tolled for the malpractice =
claim=20
because the viability of that claim depends on the outcome of the=20
underlying litigation. Id. at=20
157.
=
In their motion =
for summary=20
judgment, the attorneys argue that =
equitable=20
tolling is inapplicable here because this case is legally and =
factually=20
distinguishable from Hughes. Their argument centers on =
Nowak=E2=80=99s=20
nonsuit of Azevedo on April 4, 1995. They assert that, because =
there were=20
no longer any pending legal proceedings concerning Azevedo, Nowak =
would=20
not be asserting inconsistent positions by suing the =
attorneys for their alleged =
legal=20
malpractice in failing to serve Azevedo, while still pursuing his =
claims=20
against the defendants in the underlying suit. Therefore, =
according to=20
the attorneys,=20
because nothing prevented Nowak from bringing his claim against =
them for=20
failing to serve Azevedo once Azevedo had been =
nonsuited in=20
1995, the two-year limitations period had long since passed when =
Nowak=20
filed this claim on February 26, 2004. We=20
disagree.
=
Since=20
the Texas Supreme Court adopted the equitable tolling rule in=20
Hughes, the court has =
applied the=20
rule to every legal malpractice case meeting the Hughes parameters. =
See Underkofler v.=20
Vanasek, 53 S.W.3d 343, =
347 (Tex.=20
2001); Apex=20
Towing Co. v. Tolin, 41 S.W.3d 118, =
121=E2=80=9323 (Tex.=20
2001); Sanchez v.=20
Hastings, 898 S.W.2d 287, =
288 (Tex.=20
1995);=20
Am.=20
Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480, =
483=E2=80=9384=20
(Tex. 1992); Gulf Coast Inv. =
Corp. v.=20
Brown, 821 S.W.2d 159, =
160 (Tex.=20
1991); Aduddell v.=20
Parkhill, 821 S.W.2d 158, =
159 (Tex.=20
1991), overruled on other =
grounds,=20
Underkofler, 53 S.W.3d at 347 =
(holding=20
that Hughes tolling rule does =
not apply=20
to Deceptive Trade Practices Act claims against =
attorney).
=
The=20
supreme court reinforced the Hughes policy considerations =
in=20
Sanchez, stating that, =
=E2=80=9Cif the client must =
carefully=20
scrutinize every stage of the case for possible missteps it would =
erode=20
the trust between client and lawyer necessary for the successful=20
prosecution of litigation.=E2=80=9D =
898 S.W.2d at 288. =
In=20
Sanchez, the plaintiff=E2=80=99s attorney failed to file =
suit against a=20
viable defendant in a wrongful death action. Id. at 287. =
In=20
determining that Hughes tolled limitations on the =
plaintiff=E2=80=99s=20
legal malpractice claim, the court held, =E2=80=9Cthe statute of =
limitations for=20
malpractice for failure to sue a tortfeasor is tolled until =
litigation has=20
concluded against other tortfeasors =
liable for=20
the same indivisible injury.=E2=80=9D =
Id. at =
288. We recently =
applied=20
Sanchez in holding that =E2=80=9Cwe construe the phrase =
=E2=80=98claim that results=20
in litigation=E2=80=99 to include all claims for an indivisible =
injury that an=20
attorney is hired to pursue on behalf of a client.=E2=80=9D =
Estate of Whitsett=20
v. Junell, 218 S.W.3d 765, 771 (Tex. App.=E2=80=94Houston [1st =
Dist.] 2007, no=20
=
pet.).
&nb=
sp;In Apex =
Towing, the Texas Supreme =
Court=20
instructed lower courts to desist from re-examining whether the =
policy=20
reasons behind Hughes apply in each =
legal=20
malpractice case presented and to =E2=80=9Csimply apply the=20
Hughes tolling rule to =
the=20
category of legal-malpractice cases encompassed within its=20
definition.=E2=80=9D=20
41 =
S.W.3d at=20
122. The court added, =E2=80=9Cin the area of =
limitations,=20
bright-line rules generally represent the better approach.=E2=80=9D =
Id.
=
Following=20
the supreme court=E2=80=99s holdings in Sanchez and =
Apex, we=20
hold that, because Nowak=E2=80=99s legal malpractice claims =
against the=20
attorneys arose in the prosecution of Nowak=E2=80=99s =
medical malpractice=20
claims, the Hughes doctrine applies. Even though Nowak =
had=20
nonsuited Azevedo, his claims for the same indivisible injury =
against=20
Twelve Oaks and Greater Houston Anesthesia were still=20
ongoing. The=20
underlying litigation ended when Nowak=E2=80=99s bill of =
review against=20
Greater Houston Anesthesia was dismissed. Nowak had two years from =
that=20
point in which to bring =
his legal=20
malpractice claims, including those claims which involved Azevedo. =
We note=20
that the record does not indicate the date on which the bill of =
review=20
against Greater Houston Anesthesia was dismissed. The =
attorneys bore the burden =
of proving=20
their entitlement to summary judgment as a matter of law. See=20
Cathey, 900=20
S.W.2d at 341. =
However,=20
the attorneys asserted no evidence showing that =
Nowak=E2=80=99s legal=20
malpractice suit, filed on February 26, 2004, was barred by the=20
limitations period. Therefore, because the statute of limitations =
was=20
tolled until all litigation ended on Nowak=E2=80=99s underlying =
medical=20
malpractice claim, we hold that the trial court erred in granting =
the=20
attorneys=E2=80=99 motion for summary judgment based on the =
statute of=20
limitations.
The =
One=20
Satisfaction Rule
<=
/SPAN>Nowak=20
also argues that his claims were not barred by the one =
satisfaction rule.=20
He contends that, because the attorneys failed to plead and =
conclusively=20
establish each element of the one satisfaction rule as a matter of =
law,=20
the trial court erred in granting summary judgment on this basis. =
We=20
agree.
<=
/SPAN>The one =
satisfaction rule=20
prohibits a plaintiff from recovering twice for a single injury.=20
Crown Life=20
Ins. Co. v. Casteel, 22 S.W.3d 378, =
390 (Tex.=20
2000). Under=20
the rule, the nonsettling defendant may only claim a credit based =
on the=20
damages for which all tortfeasors are jointly liable. Id. at =
391. The rule=20
applies when defendants commit the same acts as well as when =
defendants=20
commit technically differing acts that result in a single injury.=20
Id.=20
at 390.=20
The fact=20
that more than one defendant may have caused the injury or that =
there may=20
be more than one theory of liability does not modify this rule.=20
Stewart=20
Title Guar. Co. v. Sterling, 822 S.W.2d 1, 8 =
(Tex.=20
1991). Whether the rule applies is determined not by the cause of =
action,=20
but by the injury. Id. =
at 7=E2=80=938. =
Moreover, the=20
absence of tort liability does not preclude the application of the =
one=20
satisfaction rule. Oyster Creek Fin. =
Corp. v.=20
Richwood Inv. II, Inc., 176 S.W.3d 307, =
327 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2004, pet. denied).
=
The one =
satisfaction=20
rule =
is a ground for summary judgment in cases =
in which (1) the =
one satisfaction rule applies, (2) =
the=20
settlement credit entirely sets-off the maximum amount of =
liability=20
claimed by the plaintiff, and (3) punitive damages are not at =
issue.=20
Cohen v. Arthur Andersen, L.L.P., 106 S.W.3d 304, =
309=E2=80=9310 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 2003, no pet.).
=
Nowak contends =
that=20
the attorneys=20
are, at most, entitled to a credit amount equal to the amount of =
his=20
settlement with Twelve Oaks. Nowak argues that summary judgment =
was=20
improper because nothing shows that the settlement amount =
entirely sets-off =
the=20
maximum amount of liability claimed by Nowak. We agree. The =
attorneys=20
produced no evidence showing that Nowak=E2=80=99s damages were =
covered in full by=20
the settlement he received from Twelve Oaks. Therefore, we hold =
that the=20
trial court erred in granting the attorneys=E2=80=99 summary =
judgment based on=20
the one satisfaction rule. Having determined =
that the=20
trial court erred in granting the attorneys=E2=80=99 motion =
for summary=20
judgment, we sustain Nowak=E2=80=99s sole issue.
Conclusion
=
We=20
reverse the trial court=E2=80=99s order granting summary judgment =
and remand to=20
the trial court for a new trial.
=
&=
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; George=20
C. Hanks, Jr.
=
&=
nbsp; &n=
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p; =
; Justice
Panel consists of =
Justices=20
Taft, Hanks, and Higley. |