Texas PJC Malpractice 2022

PJC 61.13

N ONMEDICAL M ALPRACTICE —T HEORIES OF R ECOVERY

PJC 61.13

Question on Discovery Rule—Attorney Malpractice, Breach of Fiduciary Duty, or Fraud

If you answered “Yes” to Question ___ [ PJC 61.5, 61.7, or other applicable liability question ], then answer the following question. Otherwise, do not answer the following question. QUESTION ______ By what date should Paul Payne , in the exercise of reasonable care and dili gence, have discovered the [ negligence ] [ breach of fiduciary duty ] [ fraud ] you found in response to Question ___ [ PJC 61.5, 61.7, or other applicable liability question ]? Answer with a date in the blank below. Answer: _______________ COMMENT When to use. PJC 61.13 may be used when a plaintiff has pleaded the discovery rule in response to the defendant’s affirmative defense of limitations, to determine whether the discovery rule prevents limitations from barring a malpractice claim (or breach-of-fiduciary-duty or fraud claim) against an attorney. Importantly, however, when a client’s cause of action for malpractice arises during the attorney’s prosecution or defense of a claim, the statute of limitations on the malpractice claim against the attorney is tolled until all appeals on the underlying claim are exhausted or the claim is otherwise finally concluded. Erikson v. Renda , 590 S.W.3d 557, 565 (Tex. 2019). This tolling rule applies categorically even when the rule’s root policy concerns are not implicated. Erikson , 590 S.W.3d at 565. PJC 61.13 may still be used when the client waited more than two years after exhaustion of all appeals to file suit against the attor ney, if the evidence raises a fact issue on when the client should have discovered the malpractice. If the claim against the attorney did not arise out of the prosecution or defense of a claim, PJC 61.13 may be submitted if the lawsuit was filed after the appli cable limitations period and the evidence raises a fact issue on the discovery rule. See Willis v. Maverick , 760 S.W.2d 642, 646 (Tex. 1988). Source of question. When applicable, the discovery rule provides that a malprac tice claim accrues and the statute of limitations runs from the date the plaintiff discov ers or should have discovered, in the exercise of reasonable care and diligence, the facts establishing his cause of action. Willis , 760 S.W.2d at 646. The Texas Supreme Court held in Willis that the discovery rule applies to legal malpractice claims and dis cussed the correct wording for a jury question. Willis , 760 S.W.2d at 646–47. The stat-

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