Opinion issued November 6, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00837-CV
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BOSHENG WEN, Appellant
V.
KRISTOPHER AHN, Appellee
On Appeal from the 125th District Court
Harris County, Texas
Trial Court Case No. 2013-23553
MEMORANDUM OPINION
Appellant, Bosheng Wen, sued appellee, Kristopher Ahn, for legal
malpractice. Ahn moved for summary judgment on limitations grounds, and the
trial court granted summary judgment, issuing a final order that Wen take nothing
by his claims. In his sole issue on appeal, Wen argues that the trial court erred in
granting summary judgment.
We affirm.
Background
Wen is the owner of Wen’s Royal Remodeling, Inc., a remodeling company
that did some work remodeling a restaurant, DN Development Co. d/b/a Café 121
Chinese Restaurant. The relationship between Wen and the principals of DN
Development deteriorated, culminating in an incident on July 14, 2008. Wen
claimed that he was assaulted by DN Development’s agents, and DN Development
claimed that Wen unsuccessfully tried to remove property from DN
Development’s premises but that he left the property and never returned after one
of DN Development’s agents called the police. DN Development filed suit against
Wen’s Royal Remodeling, Inc., alleging breach of contract, and Wen counter-sued
for assault (“the DN Development suit”).
Ahn was the second attorney to defend Wen in the DN Development suit.
Wen, acting through Ahn, tried the DN Development suit to a jury on April 20,
2010. On July 5, 2010, the trial court rendered judgment in favor of DN
Development based on the jury’s findings. Ahn continued to represent Wen until
August 4, 2010, when the trial court granted an order substituting new counsel for
Wen. Wen subsequently appealed the judgment in the DN Development suit
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through his new counsel, and on December 6, 2011, the Fourteenth Court of
Appeals issued a memorandum opinion affirming the trial court’s judgment. See
Wen’s Royal Remodeling, Inc. v. DN Dev. Corp., No. 14-10-00919-CV, 2011 WL
6042845, *1–2 (Tex. App.—Houston [14th Dist.] Dec. 6, 2011, no pet.).
However, the record in this appeal does not contain any discussion of the appeal of
the DN Development suit, nor does the record contain a copy of the opinion,
judgment, or mandate from the DN Development appeal.
On April 19, 2013, Wen, representing himself pro se, filed his original
petition against Ahn for legal malpractice arising out of the legal services Ahn
provided in the DN Development suit. Wen alleged that Ahn failed to
communicate with him and that Ahn used an unreasonable trial strategy, which
resulted in Wen’s suffering $200,000 in damages. Wen’s pleadings did not
address the statute of limitations or assert any tolling doctrines.
Ahn filed his original answer, arguing, in part, that Wen’s legal malpractice
claim was barred by the two-year statute of limitations for legal malpractice
claims 1 because he had not represented Wen since August 4, 2010, almost three
years prior to the date Wen filed his original petition. Ahn moved for traditional
summary judgment, arguing that he was entitled to relief as a matter of law on the
ground that Wen’s malpractice claim was barred by the statute of limitations. He
1
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon Supp. 2014).
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argued that all of Wen’s allegations of malpractice arose out of services provided
on or before the trial of the DN Development suit, which occurred on April 20,
2010; that the attorney-client relationship ended on August 4, 2010, when the trial
court in the DN Development suit signed an order substituting new counsel for
Wen; and that Wen filed his malpractice suit outside the two-year limitations
period. Ahn further argued that Wen could not assert the discovery rule. He
supported his motion with his own affidavit regarding his attorney’s fees, Wen’s
original petition in the current malpractice suit, the final judgment in the DN
Development suit, and the order granting substitution of counsel in the DN
Development suit.
In response, Wen argued that Ahn was to blame for his loss in the DN
Development suit, and he provided evidence supporting his factual allegations in
that suit. However, Wen’s response did not mention the appeal of the DN
Development suit, assert the application of a tolling provision, or provide any
argument addressing Ahn’s affirmative defense of limitations. According to the
record on appeal, Wen never argued to the trial court that his claim should not be
barred by the statute of limitations, and he never asserted any tolling doctrines in
the trial court.
The trial court granted Ahn’s motion for summary judgment. It found that
there was no genuine issue of material fact as to Ahn’s affirmative defense of
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statute of limitations and that Ahn was entitled to summary judgment as a matter of
law because Wen’s claims were barred by the statute of limitations set out in Civil
Practice and Remedies Code section 16.003(a).
Analysis
In his sole issue, Wen contends, for the first time on appeal, that the trial
court erred in granting summary judgment because the tolling doctrine set out in
Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991), applies to his claim
and should have precluded dismissal of his claim on limitations grounds.
A. Standard of Review
We review de novo the trial court’s ruling on a summary judgment motion.
Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009). To prevail on a traditional summary-judgment motion, the movant
must prove that there is no genuine issue regarding any material fact and that it is
entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Little v. Tex.
Dep’t of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A matter is
conclusively established if reasonable people could not differ as to the conclusion
to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816
(Tex. 2005).
A defendant moving for traditional summary judgment must either
(1) conclusively negate at least one essential element of the plaintiff's cause of
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action or (2) plead and conclusively establish each essential element of an
affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.
2010); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). Specifically, a
defendant moving for summary judgment on the affirmative defense of limitations
has the burden to conclusively establish that defense. KPMG Peat Marwick v.
Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The
defendant must conclusively prove when the cause of action accrued and negate
the discovery rule, if it applies and has been pleaded or otherwise raised, by
proving as a matter of law that there is no genuine issue of material fact about
when the plaintiff discovered, or in the exercise of reasonable diligence should
have discovered, the nature of his injury. Id. If the movant establishes that the
statute of limitations bars the action, the nonmovant must then adduce summary
judgment proof raising a fact issue in avoidance of the statute of limitations. Id.;
see also Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (per
curiam) (holding that if movant meets its burden, burden then shifts to nonmovant
to raise genuine issue of material fact precluding summary judgment).
In Texas, there is a two year statute of limitations for a plaintiff to bring a
legal malpractice claim against an attorney. See TEX. CIV. PRAC. & REM. CODE
§ 16.003(a) (Vernon Supp. 2014). Limitations generally begin to run when the
cause of action accrues, which occurs when facts come into existence that
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authorize a claimant to seek a judicial remedy. Apex Towing Co. v. Tolin, 41
S.W.3d 118, 120 (Tex. 2001) (citing Johnson & Higgins of Tex., Inc. v. Kenneco
Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998)).
The supreme court has held that the statute of limitations is tolled when “an
attorney commits malpractice in the prosecution or defense of a claim that results
in litigation until all appeals on the underlying claim are exhausted.” Id. at 121
(citing Hughes, 821 S.W.2d at 156–58). However, a plea in avoidance, like the
discovery rule or the Hughes tolling doctrine, must be affirmatively pled or it is
forfeited. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517–18 (Tex.
1988) (holding that discovery rule is plea in avoidance of statute of limitations and
must be affirmatively pled); Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto,
& Friend, LLP, 404 S.W.3d 75, 85 (Tex. App.—Houston [14th Dist.] 2013, no
pet.) (holding that Hughes doctrine, like discovery rule, is plea in avoidance and,
under Woods, must be affirmatively pled); see also TEX. R. CIV. P. 94 (requiring
affirmative pleading of any matter “constituting an avoidance or affirmative
defense”).
Even if a plaintiff fails to affirmatively plead a tolling rule, he may still rely
on such a rule to preclude summary judgment in some circumstances. Haase, 404
S.W.3d at 86. An unpleaded plea in avoidance, such as the Hughes tolling
doctrine, may serve to preclude summary judgment “if it is raised in a summary
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judgment response and if the opposing party fails to object to it in a reply or before
the rendition of judgment.” Id. (citing Roark v. Stallworth Oil & Gas, Inc., 813
S.W.2d 492, 494 (Tex. 1991)); see also Via Net v. TIG Ins. Co., 211 S.W.3d 310,
313 (Tex. 2006) (“When [plaintiff] asserted the discovery rule for the first time in
its summary judgment response, [defendant] had two choices: it could object that
the discovery rule had not been pleaded, or it could respond on the merits and try
the issue by consent.”).
However, issues not expressly presented to the trial court by written motion,
answer, or other response shall not be considered on appeal as grounds for reversal.
TEX. R. CIV. P. 166a(c); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013). And it
is a prerequisite to presenting a complaint for appellate review that the record show
that the complaint was made to the trial court by a timely request or motion. TEX.
R. APP. P. 33.1(a); see also D.R. Horton-Tex., Ltd. v. Markel Int’l Ins. Co., 300
S.W.3d 740, 743 (Tex. 2009) (citing Rule of Civil Procedure 166a(c) and Rule of
Appellate Procedure 33.1(a) and holding, “A non-movant must present its
objections to a summary judgment motion expressly by written answer or other
written response to the motion in the trial court or that objection is waived”).
B. Analysis
Here, Ahn established that Wen’s cause of action accrued at least by the date
that the trial court in the DN Development suit signed the order substituting new
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counsel on August 4, 2010, and Wen did not file his malpractice suit until April 19,
2013. Thus, Ahn established that Wen filed suit outside the two-year limitations
period. See TEX. CIV. PRAC. & REM. CODE §16.003(a); Tolin, 41 S.W.3d at 120.
The burden shifted to Wen to raise a fact issue precluding summary judgment. See
KPMG Peat Marwick, 988 S.W.2d at 748; Centeq Realty, Inc., 899 S.W.2d at 197.
Wen made no argument and presented no evidence in the trial court to preserve
error. See TEX. R. CIV. P. 166a(c); Nall, 404 S.W.3d at 555 (holding that issue not
presented to trial court shall not be considered on appeal as ground for reversal).
Wen now argues, for the first time on appeal, that the Hughes tolling
doctrine applies to preclude summary judgment of his malpractice claim because
the appeal of the judgment in the DN Development suit was not final until
December 6, 2011, and his malpractice suit was filed within two years from that
date. However, Wen failed to plead the Hughes tolling doctrine or any other
tolling provision in his original petition in this case. He likewise failed to assert
any tolling provision in his response to Ahn’s motion for summary judgment on
limitations grounds. He failed even to inform the trial court of the existence of the
DN Development appeal or to provide a copy of that opinion or judgment.
Because Wen never asserted the Hughes tolling doctrine in the trial court, either in
his pleadings or in his response to Ahn’s motion for summary judgment, that
argument is forfeited. See Haase, 404 S.W.3d at 85–86 (holding that Hughes
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tolling doctrine must be affirmatively pled or it is forfeited and that tolling doctrine
may still serve to preclude summary judgment if it is raised in written summary
judgment response).
Furthermore, Wen’s argument that the Hughes tolling doctrine precludes
summary judgment was never presented to the trial court expressly by written
answer or other written response to Ahn’s motion. Thus, it is waived and cannot
be considered on appeal as grounds for reversal. See TEX. R. CIV. P. 166a(c); TEX.
R. APP. P. 33.1(a); D.R. Horton-Tex., Ltd., 300 S.W.3d at 743; see also Brown v.
Owens, 674 S.W.2d 748, 751 (Tex. 1984) (holding that because appellant did not
refute defendant’s statute of limitations defense to trial court, appellant could not
object to statute of limitations for first time on appeal).
We overrule Wen’s sole issue.
Conclusion
We affirm the trial court’s judgment.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
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