Burnap v. Linnartz
In Burnap v. Linnartz, 914 S.W.2d 142 (Tex. App.--San Antonio 1995, writ denied), this court considered whether the Hughes tolling doctrine should be applied in a transactional context.
In Burnap, William Rork, an associate of Lawrence Linnartz, was retained to perform the legal work necessary for the withdrawal of two partners from a partnership. 914 S.W.2d at 145-46.
Willard Burnap, a partner in the partnership, was later sued in connection with a note signed by the partnership solely based on an indemnity agreement he signed at the time the two partners withdrew from the partnership. Id. at 146-47.
Burnap subsequently sued Rork and his law firm for legal malpractice. Id. at 147. Rork and his law firm moved for summary judgment on the basis of limitations. Id.
Burnap argued that limitations was tolled until the completion of all appeals in the lawsuit involving the note. Id.
The Court disagreed, asserting, "Hughes articulates a narrow tolling doctrine, applicable only when a lawyer commits malpractice in litigation of a claim or defense." Id.
The Court reasoned:
"In the instant case there is no malpractice alleged in connection with prosecution or defense of a claim. Rather, Burnap claims appellees committed malpractice in connection with preparation and execution of partnership and corporate documents. The rationale for the Hughes tolling doctrine, to prevent the client from being forced into adopting inherently inconsistent litigation postures in the underlying case and in the malpractice case, simply is inapplicable in the present context." Id. at 147-48.