Limitations on a client's claim that she received erroneous legal advice from an attorney that caused her to receive an inadequate share of the marital estate in her divorce decree was not tolled by the Hughes rule, which tolls limitations on a legal malpractice action in some instances of continuous representation. In Brennan v. Manning, No. 07-06-0041-CV, (Tex. App.—Amarillo April 12, 2007), the court found that the lawyer's post-decree work on enforcement issues was not enough to trigger the Hughes tolling rule.

Background Facts

In 1995, Lucia Brennan retained Manning and his law firm to represent her in a divorce proceeding against James Brennan. Brennan was an attorney specializing in personal injury litigation. At the time of the divorce, Lucia was aware that her husband received income from contingent fees and from the referral of cases to other attorneys. Lucia contended that during Manning's representation she received erroneous legal advice from him that caused her to receive an inadequate share of the marital estate. Specifically, she maintained that Manning incorrectly advised her that she was not entitled to an interest in any contingent or referral legal fees owed to her husband.

Lucia's divorce proceeding resulted in the entry of a Decree of Divorce on January 23, 1998. Subsequent to entry of the Decree of Divorce, Lucia was periodically represented by Manning and his law firm on matters related to the enforcement of that decree. Lucia's legal malpractice action was filed on June 24, 2004.

When the malpractice claim accrued

The court first determined when the malpractice claim accrued, applying the legal injury rule to find that the claim accrued when the divorce decree was entered:

Legal malpractice claims are governed by a two year statute of limitations. Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a); Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001). A legal malpractice claim accrues when the legal injury occurs, unless there is a legal basis for tolling limitations. Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 156 (Tex. 1991). Appellant's legal malpractice claim centers upon her allegation that she received an inadequate division of community property when Manning incorrectly advised her that she was not entitled to a share of referral or contingency fees from lawsuits pending at the time of her divorce. Therefore, Appellant's legal malpractice claim accrued when she sustained a legal injury, which would have been at the time the community property was divided by the entry of a decree of divorce. Smith v. McKinney, 792 S.W.2d 740, 742 (Tex. App.—Houston [14th Dist.] 1990, writ denied).

Hughes rule held not to apply

The court then turned to the question of whether the lawyer's post-decree work triggered application of the Hughes tolling rule. The court held that the Hughes rule did not apply:

The existence of an attorney-client relationship does not, standing alone, toll limitations in a legal malpractice cause of action. Ponder v. Brice & Mankoff, 889 S.W.2d 637, 644-45 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Rather, limitations in a legal malpractice cause of action is tolled due to the attorney-client relationship only when the attorney's malpractice occurs and is discoverable during the course of the underlying litigation being pursued by the attorney on behalf of the client. Hughes, 821 S.W.2d at 156-57. The Hughes rule, which tolls the limitations period until all appeals in the underlying action are exhausted, is expressly limited to cases involving claims of attorney malpractice in the prosecution or defense of the underlying litigation and does not apply to malpractice claims involving transactional work. Murphy v. Mullin, Hoard & Brown, L.L.P., 168 S.W.3d 288, 292 (Tex. App.—Dallas 2005, no pet.).

Appellant's Decree of Divorce was signed on January 23, 1998. Therefore, applying the Hughes rule to the facts of this case, the statute of limitations on Appellant's legal malpractice cause of action was tolled until February 22, 1998, the date her divorce decree became final. [No motion for new trial was filed; therefore, the Decree of Divorce became final 30 days after it was signed. Tex. R. Civ. P. 329b.]

Subsequent to the Decree of Divorce becoming final, Manning performed legal services for Appellant in the nature of work incident to the enforcement of the decree. Appellant would have this Court extend the Hughes rule to revive the tolling of limitations during these periods of representation. We conclude that reasons underlying the Hughes rule are inapposite to the facts of this case, and we decline to extend that rule without clear precedent.