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Gillette v. Graves

Court of Appeals of Texas, Fourth District, San Antonio

November 20, 2019

Gail GILLETTE, Appellant
v.
Stephen GRAVES, Appellee

          From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2017CI03140 Honorable Richard Price, Judge Presiding

          Sitting: Patricia O. Alvarez, Justice Irene Rios, Justice Beth Watkins, Justice

          MEMORANDUM OPINION

          IRENE RIOS, JUSTICE

         Gail Gillette sued her former lawyer, Stephen Graves, for legal malpractice. Graves moved for summary judgment, arguing the suit was barred by the two-year statute of limitations. The trial court granted summary judgment and dismissed Gillette's suit. On appeal, Gillette argues her legal malpractice suit was not barred by limitations based on the tolling rule established in Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991). We reverse and remand.

         Background

         The Foreclosure Litigation

         Gillette hired Graves to resolve accounting discrepancies in her mortgage payments and prevent her mortgage lender from foreclosing on her home. Acting on Gillette's behalf, Graves filed suit against the mortgage lender on July 30, 2010. The suit asked the trial court to enjoin the foreclosure sale of Gillette's home, which was set for August 3, 2010. The trial court temporarily enjoined the lender from foreclosing on Gillette's home. More than two years later, Graves entered into an agreement with the lender and signed an agreed judgment disposing of the suit. According to Gillette, Graves entered into the agreed judgment without her consent. The agreed judgment dismissed "all of [Gillette's] causes of action against" the lender and stated that the lender was "entitled to a declaratory judgment that it may lawfully proceed with the foreclosure sale of the property." The agreed judgment was signed by the trial court on January 8, 2013.

         After the dismissal, the lender resumed foreclosure proceedings on Gillette's home. The lender prepared a new notice of foreclosure. Gillette retained another lawyer, Kenneth E. Grubbs, to represent her. Grubbs filed suit against the lender and obtained a temporary injunction stopping the newly-noticed foreclosure sale of Gillette's home. This suit was eventually dismissed because of the agreed judgment in the suit filed by Graves.

         Again, the lender resumed foreclosure proceedings on Gillette's home. The lender actually foreclosed on Gillette's home on December 3, 2013. The lender began eviction proceedings against Gillette. On March 29, 2014, Gillette, who was still represented by Grubbs, filed a wrongful foreclosure suit against the lender. In this suit, Gillette alleged the lender had failed to comply with the terms of the agreed judgment in the initial suit. Gillette obtained a temporary injunction preventing her eviction. Ultimately, Gillette and the lender entered into a settlement agreement that ended the foreclosure dispute. Under the settlement agreement, the lender paid Gillette a sum of money and Gillette vacated her home. The trial court signed an order dismissing the wrongful foreclosure suit on January 29, 2016.

         The Legal Malpractice Suit

         On February 22, 2017, Gillette filed a legal malpractice lawsuit against Graves. Gillette alleged Graves had committed legal malpractice by entering into an agreed judgment in the first suit without Gillette's consent. Graves moved for summary judgment, asserting that the two-year statute of limitations barred Gillette's legal malpractice claim. Graves argued that Gillette's legal malpractice claim "necessarily accrued not later than the final conclusion of the litigation in which [I] represented [Gillette]." Attached to the summary judgment motion was a certified copy of the agreed judgment in the first suit against the lender, which the trial court had signed on January 8, 2013.

         Gillette filed a response to the summary judgment motion, arguing her suit was not time-barred because the statute of limitations for her legal malpractice suit was tolled until the foreclosure-related litigation was resolved. Gillette further argued she did not have a viable legal malpractice claim until all the foreclosure litigation was finally concluded.

         The trial court granted Graves's summary judgment motion and dismissed Gillette's legal malpractice suit. Gillette appealed.

         Standard ...


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