McGuire v. Kelley

ON MOTION FOR REHEARING

In his motion for rehearing, McGuire contends that we erred in determining that the statute of limitations for a breach of fiduciary duty claim is four years. McGuire argues that Kelley’s breach of fiduciary duty cause of action should be characterized as one arising out of legal malpractice and that it should, therefore, be subject to a two-year statute of limitations. Even though McGuire did not address this specific interpretation of the statute of limitations in his appellate brief, we will nevertheless address the argument to demonstrate why we believe the authorities he cites are distinguishable.

A legal malpractice claim is generally governed by a two-year statute of limitations. Tex.Cxv.Prac. & Rem.Code Ann. § 16.003(a) (Vernon Supp.2001); Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988). However, legal malpractice claims based on intentional fraud are governed by a four-year statute. Estate of Degley v. Vega, 797 S.W.2d 299, 303 (Tex.App. — Corpus Christi 1990, no writ); Whitaker v. Huffaker, 790 S.W.2d 761, 766 (Tex.App.—El Paso 1990, writ denied).5 Appellant relies on several courts of appeals cases to demonstrate that the breach of fiduciary duty claim is subject to a two-year statute of limitations, but none of these cases addresses a breach of fiduciary duty claim based on fraudulent misrepresentation. See Willis v. Maverick, 760 S.W.2d at 644; Jampole v. Matthews, 857 S.W.2d 57, 64 (Tex.App. — Houston [1st Dist.] 1993, writ denied); Hoover v. Gregory, 835 S.W.2d 668, 676 (Tex.App.—Dallas 1992, writ denied).

Kelley alleged that McGuire fraudulently misrepresented the effects of a settlement agreement to her. Kelley claims that this fraudulent misrepresentation constituted a breach of McGuire’s fiduciary duty to her. The breach of fiduciary duty claim was not one for mere legal malpractice or negligence; it stemmed from her fraudulent misrepresentation claim. Thus, this case is analogous to those cases in which a breach of fiduciary duty claim arises from and is coupled with a fraud claim, and a four-year statute of limitations applies. See Rowe v. Rowe, 887 S.W.2d 191 (Tex.App.—Fort Worth 1994, writ denied); Perez v. Gulley, 829 S.W.2d 388, 390 (Tex.App.—Corpus Christi 1992, writ denied); Spangler v. Jones, 797 S.W.2d 125 (TexApp.—Dallas 1990, writ denied).6

McGuire also argues that we improperly relied on the 76th Legislature’s amendment to Section 16.004 of the Civil Practice *685and Remedies Code, which added breach of fiduciary duty to the list of claims having a four-year limitations period. The amendment was passed in 1999, after Kelley’s claim was filed. We did not rely on the 1999 amendment in reaching our conclusion that a breach of fiduciary duty claim based on fraud is subject to a four-year statute of limitations. We simply referenced the amendment in a footnote as indicating the Legislature’s intention in explicitly including such claims in the four-year limitations statute.

Finally, this Court’s opinion adequately addressed the sufficiency of the evidence of breach of fiduciary duty.

The motion for rehearing is overruled.

. In Degley, the Corpus Christi Court of Appeals characterized breach of fiduciary duty as a type of personal injury and applied a two-year statute of limitations, but it remarked that fraud is an intentional act and is subject to the four-year limitations period. This case is distinguished from the one at bar because Kelley's alleged breach of fiduciary duty sounds more in intentional fraud than negligence.

. We note that the Beaumont Court of Appeals refused to apply a four-year statute to a breach of fiduciary claim coupled with a fraud claim arising in the legal malpractice context; however, the court specifically noted *685that it applied the two-year statute because only constructive fraud was alleged, not fraudulent misrepresentation. See Apex Towing Co. v. Tolin, 997 S.W.2d 903, 907 (Tex.App. — Beaumont 1999, pet. granted).