Youval Zive v. Jeffrey R. Sandberg and Palmer & Manuel, P.L.L.C. F/K/A Palmer & Manuel, L.L.P.

Supreme Court of Texas
══════════
No. 20-0922
══════════

Youval Zive,
Petitioner,

v.

Jeffrey R. Sandberg and Palmer & Manuel, P.L.L.C. f/k/a Palmer
& Manuel, L.L.P.,
Respondents

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

Argued January 13, 2022

JUSTICE BUSBY delivered the opinion of the Court.

In Hughes v. Mahaney & Higgins, we held that “when an attorney
commits malpractice in the prosecution or defense of a claim that results
in litigation, the statute of limitations on the malpractice claim against
the attorney is tolled until all appeals on the underlying claim are
exhausted.” 821 S.W.2d 154, 157 (Tex. 1991). Thus, if both the
malpractice plaintiff and a co-party appeal the judgment on the
underlying claim, tolling includes the time that the appeal is pending.
In this case, we must determine whether Hughes continues to toll the
limitations period when a co-party pursues the appeal in a higher court
but the malpractice plaintiff does not participate in that stage of the
proceedings. We conclude that the answer is no.
In multi-party cases, Hughes tolling includes only “all appeals” in
which the malpractice plaintiff participates. This conclusion is
consistent not only with Hughes and its progeny, but also with our
precedent regarding relief for nonappealing parties and our goal of
drawing clear lines that make it easier to calculate when the statute of
limitations will expire. Under this approach, an appeal in Texas courts
is “exhausted” and tolling ends when the court rules on the last action
taken by the malpractice plaintiff.
Applying these principles here, we conclude that Hughes tolling
ended for petitioner’s legal malpractice claim on April 1, 2016, when this
Court denied his petition for review of the underlying case. Although
petitioner’s co-party sought further appellate review by filing a petition
for writ of certiorari in the Supreme Court of the United States,
petitioner did not participate in that proceeding. Because petitioner did
not file this suit until October 1, 2018, his claim for legal malpractice is
barred by the two-year statute of limitations. We agree with the court
of appeals that the malpractice defendant conclusively established the
limitations bar, and we therefore affirm.

BACKGROUND

In 2007, City Bank loaned Grapevine Diamond, LP, over six
million dollars. Grapevine Diamond used the funds to purchase ten
acres of undeveloped real estate in Grapevine, Texas, from Jonathan

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Aflatouni. Grapevine Diamond secured the loan by executing a
promissory note and first lien deed of trust covering the land. Petitioner
Youval Zive, a real estate developer and president of Grapevine
Diamond’s general partner, also guaranteed the loan personally.1
After Grapevine Diamond defaulted and filed for bankruptcy,
City Bank initiated a trustee’s foreclosure sale of the land. According to
Zive, irregularities in the sale resulted in the property being sold for
substantially less than the loan balance. To recover the deficiency, City
Bank sued Zive and another guarantor, Nasser Shafipour. Shafipour
filed third-party claims against Aflatouni and Grapevine Diamond, both
of whom asserted cross-claims against City Bank.
In the underlying deficiency litigation, respondents Jeffrey R.
Sandberg and Palmer & Manuel, P.L.L.C., (together, Sandberg)
represented both Aflatouni and Zive. City Bank moved for summary
judgment, and the trial court ordered the parties to participate in
mediation. During mediation, City Bank offered to settle for a mutual
“walkaway”: if Aflatouni and Zive agreed to dismiss their claims against
City Bank, City Bank would dismiss its claims against them.
City Bank’s settlement attempt failed, but Zive and Sandberg
disagree about why that occurred. Although Zive “strongly urged”

1 Grapevine Diamond later borrowed additional funds from City Bank,
and the parties executed loan-modification agreements in 2008 and 2009. Zive
signed the 2009 loan-modification agreement as guarantor and as president of
Grapevine Diamond’s general partner. Because neither the 2007 guaranty
agreement nor the 2009 loan-modification agreement is part of the summary
judgment record, it is unclear what type of guaranty Zive provided. See Ford
v. Darwin, 767 S.W.2d 851, 854 (Tex. App.—Dallas 1989, writ denied)
(distinguishing between guaranty of payment and guaranty of collection).

3
Sandberg to accept the settlement offer, Sandberg allegedly declined to
do so on the ground that Aflatouni could obtain a large recovery on his
affirmative claims. For his part, Sandberg asserts that he never
counseled Zive against accepting the offer. He contends that City Bank
offered to settle only if both Aflatouni and Zive agreed to do so, and
therefore it was Aflatouni’s decision to forgo settling—not Sandberg’s
failure to accept the settlement offer on Zive’s behalf—that doomed the
settlement negotiations.
Sandberg withdrew as Zive’s counsel, purportedly because “an
unresolvable conflict had arisen between Aflatouni and Zive.”
Subsequent court-ordered mediation efforts were futile. The trial court
eventually granted summary judgment for City Bank in the deficiency
suit. Zive, Aflatouni, and Grapevine Diamond appealed, and the court
of appeals affirmed the trial court’s judgment. See Grapevine Diamond,
L.P. v. City Bank, No. 05-14-00260-CV, 2015 WL 8013401, at *1 (Tex.
App.—Dallas Dec. 7, 2015, pet. denied) (mem. op.).
Aflatouni and Grapevine Diamond then filed a petition for review
in this Court, and Zive filed his own separate petition. On April 1, 2016,
we denied both petitions. Aflatouni and Grapevine Diamond filed a
motion for rehearing, but Zive did not take any further action with
respect to his petition. We denied rehearing of Aflatouni and Grapevine
Diamond’s petition for review on May 20, and the court of appeals issued
its mandate on May 25, 2016.
A few months later, Aflatouni and Grapevine Diamond filed a
petition for a writ of certiorari in the Supreme Court of the United
States. Aflatouni and Grapevine Diamond’s petition identified Zive as

4
a party to the proceedings below. See Petition for Writ of Certiorari at
iii, Grapevine Diamond, L.P. v. City Bank, 137 S. Ct. 250 (2016) (No. 16-
225), 2015 WL 8013401. Zive did not file a document or otherwise
attempt to participate in the Supreme Court proceedings. The Supreme
Court denied Aflatouni and Grapevine Diamond’s certiorari petition on
October 3, 2016.
On October 1, 2018, Zive filed this suit against Sandberg for legal
malpractice.2 Sandberg moved for traditional summary judgment,
arguing that Zive’s malpractice claim accrued on April 1, 2016, the date
on which this Court denied his petition for review, and therefore
limitations barred his claim. In response, Zive contended that Hughes
tolled the running of limitations until October 3, 2016, when the U.S.
Supreme Court denied Aflatouni and Grapevine Diamond’s petition for
certiorari. The trial court granted Sandberg’s motion for summary
judgment and rendered a take-nothing judgment.
The court of appeals affirmed, holding that Hughes tolling ended
on April 1, 2016, and therefore Sandberg conclusively established that
Zive’s malpractice claim was barred by limitations. 610 S.W.3d 44, 51
(Tex. App.—Dallas 2020). Zive argued that Hughes tolling extended
through the denial of the certiorari petition because, had the petition
succeeded, it would have set aside the judgment that injured him. The

2 Zive also asserted a claim for breach of fiduciary duty, and the trial
court granted Sandberg’s motion for summary judgment on that claim. On
appeal, Zive did not challenge the judgment with respect to the claim for breach
of fiduciary duty, so the court of appeals affirmed that portion of the judgment.
See 610 S.W.3d 44, 47–48 (Tex. App.—Dallas 2020); see also Jacobs v.
Satterwhite, 65 S.W.3d 653, 655–56 (Tex. 2001) (per curiam).

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court disagreed. Noting that Hughes focused on the “last action of right”
taken by the malpractice plaintiff, the court concluded that Hughes
tolling applies only to an appeal of “the underlying claim asserted by or
against the legal malpractice plaintiff.” Id. at 49 (citing Hughes, 821
S.W.2d at 158 n.6).
Justice Schenck dissented. Id. at 51. Citing the need for a bright-
line rule, he argued that Hughes tolling should end “when no party to
the litigation is able to seek further, direct appellate relief.” Id.
(Schenck, J., dissenting from denial of en banc consideration); see also
id. at 53 (“[F]inality, as that term is commonly understood, includes the
period during which the judgment is still open to direct review, whether
that available avenue for relief is invoked or not.”). Under Justice
Schenck’s approach, Hughes tolling would encompass “continuing (but
unutilized) available remedies, . . . includ[ing] the period for seeking
rehearing and certiorari.” Id. at 54.
Regarding multi-party cases, Justice Schenck contended that
appeals of the underlying claim are not “exhausted” until (1) “there has
. . . been a clear and irrevocable declaration that the absent party could
not benefit from the result of further proceedings and the litigation . . .
has not ‘otherwise finally concluded,’” or (2) “the proceeding comes to
final rest with relief on direct review no longer available as to any of the
parties to [the] last judgment.” Id. at 55. The court’s approach,
according to Justice Schenck, “undermine[d] the seeming clarity of the
start date specified by Hughes and its progeny.” Id.
Zive filed a petition for review, which we granted.

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ANALYSIS

I. Standard of review

“We review summary judgments de novo, viewing the evidence in
the light most favorable to the non-movant, crediting evidence favorable
to the non-movant if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not.” Erikson v. Renda, 590
S.W.3d 557, 563 (Tex. 2019). Where, as here, a defendant moves for
traditional summary judgment, it must demonstrate that “there is no
genuine issue as to any material fact” and that it is “entitled to judgment
as a matter of law.” TEX. R. CIV. P. 166a(c). “[T]o obtain traditional
summary judgment on a limitations defense, the defendant must
conclusively prove (1) when the cause of action accrued, and (2) that the
plaintiff brought its suit later than the applicable number of years
thereafter—i.e., that ‘the statute of limitations has run.’” Draughon v.
Johnson, 631 S.W.3d 81, 89 (Tex. 2021) (quoting Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2004)).
As we recently explained in Draughon, a limitations dispute may
require a court to decide “which days count toward the running of
limitations,” or whether equitable defenses allow the suit to proceed
even though the limitations period has run. Id. at 88–89. Hughes tolling
belongs to the former category. Id. at 90. Thus, when the plaintiff
contends that Hughes tolling applies, the burden is on the defendant to
conclusively negate Hughes’s applicability. Id.; Erikson, 590 S.W.3d at
563. Only after the defendant does so is the plaintiff required to produce
evidence raising a fact issue. Draughon, 631 S.W.3d at 96.

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II. Hughes tolling extends only through appellate
proceedings in which the malpractice plaintiff
participates.

Claims for legal malpractice are subject to a two-year statute of
limitations. TEX. CIV. PRAC. & REM. CODE § 16.003(a); Erikson, 590
S.W.3d at 563. Generally, “[a] cause of action for legal malpractice
accrues when the client sustains a legal injury or, in cases governed by
the discovery rule, when the client discovers or should have discovered
the facts establishing the elements of a cause of action.” Hughes, 821
S.W.2d at 156.
But in Hughes, we held that “when an attorney commits
malpractice in the prosecution or defense of a claim that results in
litigation, the statute of limitations on the malpractice claim against the
attorney is tolled until all appeals on the underlying claim are
exhausted.” Id. at 157. Unlike the legal-injury rule and discovery rule,
which affect when a claim accrues, Hughes tolling is an equitable
doctrine that tolls the running of limitations from the date of accrual
through the date all appeals are exhausted. See id. at 156–57.
Hughes recognized an “untenab[le] . . . conflict” in cases where
“an attorney commits malpractice while providing legal services in the
prosecution or defense of a claim which results in litigation.” Id. at 156.
In such cases, the period during which the plaintiff must file his
malpractice suit often overlaps with his appeals in the underlying
litigation affected by the alleged malpractice. See id. at 157. To prevail
in both proceedings, the malpractice plaintiff must simultaneously
assail and defend his attorney’s actions in the underlying case. Id. This

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compulsory contradiction is the first of two policy concerns underlying
the Hughes tolling rule. Id.
Hughes’s second policy rationale for tolling is that the viability of
the malpractice claim depends on the outcome of the underlying case.3
Id. Because a claim for legal malpractice is one for negligence, the
malpractice plaintiff must establish the traditional elements of duty,
breach, causation, and damages. See Peeler v. Hughes & Luce, 909
S.W.2d 494, 496 (Tex. 1995). Without Hughes, a situation could arise in
which a party injured by a judgment in Case 1 appeals that judgment
and also timely files Case 2 alleging malpractice by his attorney. At the
time Case 2 is filed, the malpractice plaintiff can point to the judgment
in Case 1 to show damages from the alleged malpractice. Cf. Pace Corp.
v. Jackson, 284 S.W.2d 340, 348 (Tex. 1955) (noting that uncertainty as
to amount of damages, unlike uncertainty as to existence of damages, is
not fatal to recovery).
While appeals in Case 1 are ongoing, the malpractice plaintiff
could win Case 2 and obtain a judgment against his former attorney.
But if the plaintiff subsequently succeeded in his appellate efforts to

3 Although we have discussed the “inconsistent positions” rationale for
Hughes tolling over the years, we have had little occasion to comment further
on this “viability” rationale. Some courts of appeals have concluded that
Hughes tolls the limitations period while the underlying proceedings are
pending because “the pursuit of the second suit prior to [the underlying case’s]
outcome would either be improper or result in judicial complications.” Rogers
v. Ricane Enters., Inc., 930 S.W.2d 157, 167 (Tex. App.—Amarillo 1996, writ
denied). In this same vein, courts have suggested that the underlying action
constitutes a “legal impediment” to the malpractice suit. See El Pistolon II,
Ltd. v. Levinson Alcoser Assocs., L.P., 627 S.W.3d 494, 499–500 (Tex. App.—
Corpus Christi–Edinburg 2021, pet. filed) (collecting cases).

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overturn the judgment in Case 1, his injury from the malpractice would
be reduced or even disappear.4 Thus, having succeeded in both Case 1
and Case 2, the malpractice plaintiff would receive a windfall. This
windfall—along with any subsequent litigation aimed at upholding or
overturning it—is easily avoided by tolling the statute of limitations so
that the malpractice plaintiff can file his suit after Case 1 is “finally
concluded.”
In Hughes, tolling ended when this Court overruled the
malpractice plaintiffs’ motion for rehearing on the appeal of the
underlying claim because it was a court’s ruling on “the last action of
right” that the plaintiffs “could take and did take” with respect to the
underlying suit. See Hughes, 821 S.W.2d at 158 n.6. We have since
clarified that Hughes tolling applies “until all appeals on the underlying
claim are exhausted or the litigation is otherwise finally concluded.”
Apex Towing Co. v. Tolin, 41 S.W.3d 118, 119 (Tex. 2001) (emphasis
added); see id. at 123 (holding underlying litigation “was not finally
concluded until . . . the court of appeals issued its order dismissing [the]
appeal” due to settlement). And for malpractice claims arising out of
criminal representation, we have held that Hughes tolling encompasses
not only direct appeals but also post-conviction proceedings. Gray v.
Skelton, 595 S.W.3d 633, 640 (Tex. 2020).
Relying on Apex Towing and Gray, Zive argues that “all appeals”
include those of co-parties, even when the malpractice plaintiff does not

4 See Laird v. Blacker, 828 P.2d 691, 704 (Cal. 1992) (Mosk, J.,
dissenting) (“The status of the malpractice claim is uncertain until the appeal
in the underlying case is resolved, because if it is ultimately decided in the
client’s favor the malpractice suit may well become moot for lack of damages.”).

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participate in them. Neither Hughes nor our post-Hughes cases address
whether Hughes tolling applies when the malpractice plaintiff does not
participate in a co-party’s appeal of the underlying case.
“[I]n the area of limitations, bright-line[] rules generally
represent the better approach.” Apex Towing, 41 S.W.3d at 122. Indeed,
we have advised courts to apply the Hughes tolling rule categorically.
Id. Because Hughes tolling is applied in a “clear and strict” manner, see
id., we strive for clarity as we interpret its scope. Although we do not
“parse the language in our opinions like the words in a statute,”
Hughes’s language still informs our analysis. Erikson, 590 S.W.3d at
566.
Our focus in Hughes was the court’s ruling on the “last action of
right” taken by the malpractice plaintiff. See 821 S.W.2d at 158 n.6.
This approach suggests that in multi-party cases such as this one, the
focus should be on the court’s ruling on the last action taken by the
malpractice plaintiff rather than the last action taken by a co-party.
Accordingly, for Hughes tolling to encompass the entire time that
appellate proceedings initiated by a co-party are pending, the
malpractice plaintiff must continue to participate in those proceedings.
We adopt this rule for three reasons.
First, this rule provides a forward-looking bright line that makes
it easy for parties and counsel to calculate the deadline for filing a
malpractice suit. Likewise, the rule makes it easy for adverse parties
and courts to determine whether such a suit is barred by limitations.
See Apex Towing, 41 S.W.3d at 122. Although we acknowledge that
Zive’s proposed rule—applying Hughes to any party’s appeal of the

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underlying litigation—is also a bright-line rule, it would broaden the
Hughes tolling rule significantly. Hughes tolling only extends through
the exhaustion of “all appeals on the underlying claim” allegedly
affected by malpractice—that is, all appeals involving a cause of action
by or against the malpractice plaintiff, not every appeal addressing any
claim in the case.5 821 S.W.2d at 157 (emphasis added). We previously
declined to broaden the Hughes exception to limitations, see Murphy v.
Campbell, 964 S.W.2d 265, 272 (Tex. 1997), and we decline to do so again
today.
Second, this rule does not impose a significant burden on the
malpractice plaintiff, who may continue to participate in any appellate
proceedings simply by filing a short document joining or adopting his co-
party’s positions. Our procedural rules allow “[a]ny party” to “join in or
adopt by reference all or any part of a brief, petition, response, motion,
or other document filed in an appellate court by another party in the
same case.” TEX. R. APP. P. 9.7. Similarly, a party to the underlying
appellate proceedings can qualify for relief in the U.S. Supreme Court
by filing a document. See SUP. CT. R. 12.6.6

Hughes tolling also encompasses an appellate proceeding initiated by
5

an adverse party that challenges a trial or appellate judgment in favor of the
malpractice plaintiff. Cf. Hughes, 821 S.W.2d at 156, 158 (tolling limitations
through adverse party’s successful appeal of trial court’s judgment favoring
malpractice plaintiffs and this Court’s denial of malpractice plaintiffs’
application for writ of error). But in multi-party cases, Hughes tolling does not
apply to an appeal by or against a co-party in which the malpractice plaintiff
does not participate.
As a party in the Texas appellate proceedings on the underlying claim,
6

Zive was considered a respondent in the U.S. Supreme Court proceedings
initiated by Aflatouni and Grapevine Diamond’s petition for certiorari. See

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Third, the rule requiring the malpractice plaintiff’s participation
in an appeal to continue tolling is consistent with the principle that a
reversal on appeal as to one party generally does not warrant a reversal
as to nonappealing parties. See Plas-Tex, Inc. v. U.S. Steel Corp., 772
S.W.2d 442, 446 (Tex. 1989). When the malpractice plaintiff fails to
participate in an appeal of the underlying case, Hughes does not toll
limitations during a co-party’s appeal because the outcome generally
will not change with respect to the nonappealing malpractice plaintiff.
As Zive points out, there are cases in which “the rights of the
appealing and nonappealing parties are so interwoven or dependent on
each other as to require a reversal of the entire judgment.” Id. And in
these cases, a reversal as to an appealing co-party may extend to
nonappealing parties. See, e.g., Ex parte Elliot, 815 S.W.2d 251, 251–52
(Tex. 1991) (per curiam) (applying Plas-Tex exception to expunction case
in which only one agency appealed); Turner, Collie & Braden, Inc. v.
Brookhollow, Inc., 642 S.W.2d 160, 166 (Tex. 1982) (reversing judgment
and remanding entire case where claims turned on same jury finding
because “the result of the second trial could be inconsistent with the
result of the first trial”).
Citing Plas-Tex, Zive proposes yet another alternative rule:
Hughes tolling should encompass a co-party’s appeal when the

SUP. CT. R. 12.6. But Zive did not file anything in the U.S. Supreme Court
within the response time specified in the applicable rule, so he did not qualify
to receive any relief that the parties to that petition could have received. See
id.; cf. United States v. Padilla, 508 U.S. 77, 79 n.1 (1993) (applying Rule 12.6’s
predecessor to conclude that although respondents’ co-conspirator was
technically a respondent, court would not address portion of case affecting him
because he did not “file a petition challenging that decision”).

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appealing and nonappealing parties’ rights are “interwoven.” He argues
that if Aflatouni and Grapevine Diamond had succeeded in the U.S.
Supreme Court, the foreclosure sale upon which the deficiency judgment
against Zive was based would have been set aside. Thus, he contends
that Hughes tolling continued while Aflatouni and Grapevine Diamond’s
certiorari petition was pending.
We acknowledge that the rule adopted today could result in a
scenario in which the malpractice plaintiff succeeds on his or her claim,
but a co-party’s appeal of the underlying case later reduces or eliminates
the damages caused by the malpractice. Yet incorporating the fact-
specific Plas-Tex exception into the Hughes analysis would
overcomplicate what should be a “clear and strict” and “categorical” rule.
Erikson, 590 S.W.3d at 559.
There also seems little need to complicate Hughes tolling to
accommodate the Plas-Tex exception, as Texas appellate courts do not
apply that exception frequently.7 In addition, the trial court handling
the malpractice claim could address the windfall risk in cases where the
Plas-Tex exception applies by staying or abating the malpractice case
until the co-party’s appeals are exhausted or the litigation is otherwise
finally concluded. See Dolenz v. Cont’l Nat’l Bank of Fort Worth, 620
S.W.2d 572, 575 (Tex. 1981) (“A court, in exercise of its sound discretion,

7In the past ten years, for instance, courts of appeals have found the
Plas-Tex exception applicable only three times. See Zaidi v. Shah, 502 S.W.3d
434, 447 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); Smith v. Philley,
No. 02-12-00478-CV, 2014 WL 345631, at *2 (Tex. App.—Fort Worth Jan. 30,
2014, no pet.) (mem. op.); U.S. Fire Ins. Co. v. Lynd Co., 399 S.W.3d 206, 220
(Tex. App.—San Antonio 2012, pet. denied).

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may abate an action for reasons of comity, convenience and orderly
procedure . . . .” (quoting Timon v. Dolan, 244 S.W.2d 985, 987 (Tex.
App.—San Antonio 1951, no writ))).

III. Because Hughes tolling ended when this Court denied
Zive’s petition for review, limitations bars Zive’s
malpractice claim.

Applying Hughes here, tolling for Zive’s malpractice claim ended
on April 1, 2016, when this Court denied Zive’s petition for review.
Aflatouni and Grapevine Diamond filed a motion for rehearing in this
Court, but Zive did not. Aflatouni and Grapevine Diamond then filed a
petition for writ of certiorari, but Zive did not participate in the U.S.
Supreme Court proceedings.
Because Zive did not file his malpractice suit until October 1,
2018, Sandberg has conclusively shown that this suit is barred by the
two-year statute of limitations. Thus, the trial court properly granted
Sandberg’s motion for summary judgment, and the court of appeals
correctly affirmed that judgment.
Despite refining Hughes over the years, we have not had occasion
to provide much guidance on how to determine the terminal point of the
underlying litigation—that is, when all appeals are “exhausted” or the
litigation is “otherwise finally concluded.” See, e.g., Gray, 595 S.W.3d at
640 (tolling until date Court of Criminal Appeals issued mandate
denying review in underlying case and from date habeas application was
filed until charges were dismissed); Apex Towing, 41 S.W.3d at 123
(tolling until date court of appeals dismissed appeal of underlying case);
Hughes, 821 S.W.2d at 158 (tolling until date this Court denied
rehearing in appeal of underlying case, which was sufficient to render

15
suit timely without addressing continuing availability of review). We
take the opportunity to do so here as guidance for future cases. Cf.
Goode v. Shoukfeh, 943 S.W.2d 441, 449 (Tex. 1997).
For an appeal in Texas courts, we conclude it is most appropriate
for Hughes tolling to end when the court in which the case is pending
rules on the last action taken by the malpractice plaintiff. Applying this
rule here, tolling ended when this Court denied Zive’s petition for
review, as that was the ruling on the last action taken by Zive.8 Not
only is this rule consistent with Hughes, where we focused on the date
on which the “last action of right” taken by the malpractice plaintiffs
was “concluded” by a court ruling, 821 S.W.2d at 158 n.6, it also
advances our efforts to maintain “predictability and consistency” in our
limitations jurisprudence. See Erikson, 590 S.W.3d at 566 (quoting Apex
Towing, 41 S.W.3d at 122).
We acknowledge that there are other potential terminal points for
the litigation that could be selected, such as the date of the mandate’s
issuance or the expiration of the deadline to file a notice of appeal or to

8 This rule can be applied in any court that finally resolves a claim by
or against the malpractice plaintiff. For example, if Zive had filed a motion for
new trial challenging the trial court’s judgment in the underlying litigation but
had not filed a notice of appeal, Hughes tolling would have ended when the
trial court denied the motion (either expressly or by operation of law). If Zive
had filed a motion for rehearing in this Court, tolling would have ended when
we denied rehearing or, if we granted rehearing and granted the petition, when
we issued a judgment. And if, as part of that judgment, we chose to remand
the case, then tolling would have ended when the claim was resolved on
remand. Similarly, had Zive filed a certiorari petition or other document in
the U.S. Supreme Court, Hughes tolling would have ended when certiorari was
denied or, if the Supreme Court granted certiorari and ordered a remand, when
the claim was finally resolved on remand.

16
initiate appellate proceedings in a higher court.9 But these approaches
would complicate the process of determining when Hughes tolling ends,
thereby undermining our goal of ensuring predictability. See id. Tying
the end of Hughes tolling to the expiration of time to file a notice of
appeal or petition for review, for example, would require courts and
litigants to pinpoint a date when an action did not occur by considering
(among other things) the type of judgment appealed, the court to which
that judgment was appealed, and whether an applicable rule extended
the deadline. See, e.g., TEX. R. APP. P. 26.1–26.3, 53.7.10 Using the date
of the mandate’s issuance might appear simpler by comparison, but it
would similarly require courts and litigants to focus on a seemingly
arbitrary point subject to fluctuation. See TEX. R. APP. P. 18.2, 18.7.11
Such complicated analyses are inappropriate in the context of Hughes
tolling. Just as the analysis of whether Hughes tolling applies to a co-
party’s appeal focuses on the malpractice plaintiff’s participation in that

9 E.g., Thomas v. Hillyard, 445 P.3d 521, 527 (Utah 2019) (tolling
limitations until “expiration of the time to file an appeal” or, if appeal was filed,
date of appeal’s resolution); Branch Banking & Tr. Co. v. Gerrard, 432 P.3d
736, 739 (Nev. 2018) (using date Nevada Supreme Court issued remittitur in
underlying case).
10We also recognize that our rule does not continue tolling during the
period in which the judgment is open to review that the malpractice plaintiff
ultimately decides not to pursue, and thus (for example) would not include a
granted extension of time to file a notice of appeal or petition for review that
the plaintiff later decides not to file. Such periods are typically brief, and the
malpractice plaintiff has two years from the date Hughes tolling ends to decide
whether to file his or her malpractice suit.
11 In addition, if a co-party files a petition for review in this Court but
the malpractice plaintiff does not, the mandate may not issue until long after
appellate proceedings on the claim by or against the malpractice plaintiff were
finally concluded in the court of appeals. See TEX. R. APP. P. 18.1.

17
appeal, the determination of when litigation is “finally concluded”
hinges on the relevant court’s resolution of the malpractice plaintiff’s
last action on the underlying claim. Thus, the date Hughes tolling ends
is the date on which the court where the underlying claim is pending
rules on the malpractice plaintiff’s last action regarding that claim.

CONCLUSION

In Hughes, we held that the statute of limitations for a
malpractice claim is “tolled until all appeals on the underlying claim are
exhausted.” 821 S.W.2d at 157. We conclude Hughes tolling applies
only to all appeals in which the malpractice plaintiff participates. Here,
Hughes tolling for Zive’s legal-malpractice claim ended on April 1, 2016,
so Zive’s malpractice suit—filed over two years later—is barred by
limitations. We agree with the court of appeals that Sandberg
conclusively established that limitations bars Zive’s malpractice claim,
and we therefore affirm the court of appeals’ judgment.

J. Brett Busby
Justice

OPINION DELIVERED: April 22, 2022

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