MARVIN J. MCDONALD, SR. AND BILLIE JEAN MCDONALD, Individually and as Co-Trustees of the ERIC TODD MCDONALD TRUST, MARVIN J. MCDONALD, JR. and TIMOTHY GORDON MCDONALD, Appellants v. HIGHTOWER, ALEXANDER & COOK, P.C., JAMES W. HIGHTOWER and LISA COOK, Heir at law of THOMAS L. COOK, Deceased, Appellees

Reversed and Remanded in part and Affirmed in part. Opinion filed August 31, 1992.
 
 
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-91-01066-CV
............................
MARVIN J. MCDONALD, SR. AND BILLIE JEAN MCDONALD, Individually and as
Co-Trustees of the ERIC TODD MCDONALD TRUST, MARVIN J. MCDONALD, JR.
and TIMOTHY GORDON MCDONALD, Appellants
V.
HIGHTOWER, ALEXANDER & COOK, P.C., JAMES W. HIGHTOWER
and LISA COOK, Heir at law of THOMAS L. COOK, Deceased, Appellees
..............................................................
On Appeal from the 192nd District Court
Dallas County, Texas
Trial Court Cause No. 89-9375-K
..............................................................
OPINION
Before Justices Baker, Burnett, and Rosenberg
Opinion By Justice Rosenberg
        Appellants, Marvin J. McDonald, Sr., Billie Jean McDonald, individually and as co-trustees of the Eric Todd McDonald Trust, Marvin J. McDonald, Jr., and Timothy Gordon McDonald appeal from four orders granting summary judgment and dismissing the McDonalds' causes of action in their legal malpractice suit against the law firm of Hightower, Alexander & Cook, P.C. (the firm), James W. Hightower and Lisa Cook, heir at law of Thomas L. Cook, deceased. The trial court dismissed the negligence, breach of contract, and breach of implied warranty claims on statute of limitations grounds; and DPTA claims for failure to send a thirty day notice letter. The trial court also granted a summary judgment in favor of the appellee James Hightower on appellants' DPTA claims. Appellants attack the trial court's orders in five points of error. We reverse in part and affirm in part.
FACTS
        The McDonald family owned two Oklahoma corporations, Wise Transportation, Inc. (Wise Transportation) and Target Leasing, Inc. (Target Leasing). They contracted with a potential buyer to sell Wise Transportation and they asked Hightower, a Dallas attorney in the firm of Hightower, Alexander & Cook, P.C., to look over the contract. But Hightower introduced the McDonalds to Ken Hamric, who owned Hamric Transportation, Inc. as another potential buyer. Instead of selling to the original buyer the McDonalds sold Wise Transportation to Hamric. Hightower's associate, Thomas Cook, drafted the contracts involved in the sale, representing both buyer and seller. In April 1983 Wise Transportation was sold to Hamric and then in May 1983 Target Leasing was sold to Wise Transportation. Marvin McDonald, Sr. (Mac) remained as an employee, but after a few months, he quit and began working for a competitor. In October 1983 Hamric and Wise Transportation sued Mac for an alleged violation of an agreement not to compete with Wise Transportation. Mac countersued to enforce the sales contract claiming Hamric was stripping Wise Transportation and Target Leasing of assets in violation of the contract. During discovery in that lawsuit, Mac's attorney formed the opinion that the McDonalds might have a malpractice claim against Hightower, Cook and their firm. The litigation with Hamric was completed on June 23, 1986.
        The McDonalds filed suit in a Tulsa, Oklahoma district court August 4, 1986, against the firm and Hightower and Cook individually, for negligence in the preparation of the sale documents. On November 12, 1986, counsel for the firm filed a notice of death stating that Thomas L. Cook died on September 3, 1985. On December 11, 1986, the district court dismissed the case as to all defendants for lack of personal jurisdiction. The McDonalds exhausted their Oklahoma appeals when the Oklahoma Supreme Court affirmed the district court's orders on June 29, 1989.
        On August 16, 1989, in a Dallas County district court, the McDonalds filed their original petition against the firm, Hightower and Lisa Cook, as Thomas Cook's heir, alleging negligence, breach of contract, breach of implied warranty, and violations of the Texas Deceptive Trade Practices Act (DTPA) and on September 12, 1990, filed an amended petition against the same parties. The firm, Hightower and Lisa Cook pleaded several affirmative defenses. The firm and Hightower counterclaimed, alleging the McDonalds had filed a bad faith DTPA cause of action. In response to several motions for summary judgment and one motion to dismiss, the trial court entered four separate, but overlapping orders: 1) a summary judgment for Hightower on all causes of action except negligence (November 5, 1990); 2) a dismissal of the DTPA actions against all defendants (November 5, 1990); 3) a dismissal of all causes of action against Lisa Cook (May 1, 1991); and 4) a dismissal of all causes of action pending against all defendants (June 28, 1991). The court later entered an agreed order severing the counterclaim filed by the firm and Hightower.
Statute of Limitations
        In their first point of error, the McDonalds attack the June 28, 1991, order claiming the trial court erred in granting appellees' motion for summary judgment on the ground that limitations had run. The McDonalds assert three arguments: 1) they filed suit within two years of the date they knew they had a malpractice claim; 2) there are material facts in controversy as to whether they should have known earlier; and 3) the statute of limitations was tolled until the underlying suit between the McDonalds and Hamric was resolved.
        The only causes of action left to be addressed at the time this motion for summary judgment was heard were the negligence claim against the firm and Hightower, and the breach of contract and breach of implied warranty claims against the firm. Before the trial court ruled on this motion all the causes of action against Cook, all DPTA claims, and the breach of contract and breach of implied warranty claims against Hightower had been dismissed by prior orders. Therefore, we shall limit our discussion in this point of error to the negligence claim against the firm and Hightower, and the breach of contract and breach of implied warranty claims against the firm.
        In reviewing the granting of a summary judgment, we must accept as true the non-movant's summary judgment evidence and make every reasonable inference in the non-movant's favor. To sustain the summary judgment, the movant must establish as a matter of law that no genuine issue of material fact exists. Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 734 (Tex. 1985). To prevail as a defendant, movant must negate, as a matter of law, one or more elements of each of the plaintiff's causes of action, or prevail as a matter of law on a defense to each of the plaintiff's causes of action. Rosas v. Buddie's Food Store, 518 S.W.2d 534, 537 (Tex. 1975); Adam Dante Corp. v. Sharpe, 483 S.W.2d 452, 455 (Tex. 1972). We must reverse the judgment and remand the cause for a trial on the merits if the summary judgment was improperly granted. Tobin v. Garcia, 159 Tex. 58, 63-64, 316 S.W.2d 396, 400 (1958).
        A cause of action for legal malpractice is in the nature of a tort and is thus governed by the two-year limitations statute. FN:1 Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988); Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 1986). The two-year limitations period also applies to DTPA claims. Tex. Bus. & Com. Code Ann. § 17.565 (Vernon 1987). 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 v. Mahaney & Higgins, 821 S.W.2d 154, 156 (Tex. 1991). However, when an attorney allegedly commits malpractice in the prosecution or defense of a claim that results in litigation, the statute of limitations on the malpractice claim is tolled until all appeals on the underlying claim are exhausted. Id. at 157; Aduddell v. Parkhill, 821 S.W.2d 158, 159 (Tex. 1991); Gulf Coast Inv. Corp. v. Brown, 821 S.W.2d 159, 160 (Tex. 1991).
        Appellees argue that the new rule announced in Hughes is inapplicable to this case because this case does not involve "malpractice in the prosecution or defense of a claim that resulted in litigation." Looking at that sentence alone we might agree with appellees. However, our reading of the entire opinions of all three cases leads us to the conclusion that the facts of this case place it within the rationale of the new rule. The court in Hughes explained that limitations must be tolled because the client may have to adopt inconsistent litigation postures in the underlying case and in the malpractice case, and because the viability of the malpractice cause of action depends on the outcome of the underlying suit. Hughes, 821 S.W.2d at 156-57.
        In the underlying case, Hamric filed suit against the McDonalds based on the questionable contracts, placing the McDonalds in the position of defending the contracts and attempting to obtain Hamric's performance under those contracts. This is inconsistent with the McDonalds' arguments against the firm, Hightower and Cook in the malpractice suit. Further, Hughes involved an adoption proceeding and Brown involved a non-judicial foreclosure sale of real property. The Supreme Court characterized those actions as "in the prosecution or defense of a claim." Hughes, 821 S.W.2d at 155; Brown, 821 S.W.2d at 160. We conclude that preparation of sale documents should also be included under the new rule.         The sale documents were signed in April and May 1983. The cause of action could not have accrued prior to that time. Hamric filed suit against the McDonalds October 7, 1983. The statute of limitations in the malpractice action was tolled from that time until the Hamric suit became final. Hughes, 821 S.W.2d at 157. A judgment was entered in that suit in favor of the McDonalds on June 23, 1986. Our record reflects no appeal of that case, therefore, we use that date from which to calculate limitations. Thus, the McDonalds had until June 23, 1988, to file their malpractice suit.
        The McDonalds timely filed suit on August 4, 1986, in Tulsa, Oklahoma against the firm, Hightower and Thomas Cook, naming negligence as the only cause of action. After the dismissal of that case was affirmed by the Oklahoma Supreme Court, the McDonalds filed suit in Dallas County pursuant to Texas' wrong court statute. Section 16.064 of the Civil Practice and Remedies Code provides that the running of the statute of limitation is suspended during the period between the date an action is filed in a trial court and the date the same action is filed in a different court if: (1) the action is dismissed for lack of jurisdiction; and (2) the action is commenced in a court of proper jurisdiction within sixty days of the dismissal. Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (Vernon 1986). The Dallas suit was filed August 16, 1989, naming as defendants the firm, Hightower and Lisa Cook as heir of Thomas Cook and alleging negligence, breach of contract, breach of implied warranty and DTPA violations. Applying Hughes, the statute of limitations was tolled and did not begin to run until June 23, 1986. The negligence action was timely filed in the Tulsa court on August 4, 1986. Limitations was tolled as to the negligence action between August 4, 1986, and August 16, 1989, the date it was filed in Dallas pursuant to section 16.064. Therefore, the negligence action is not barred by limitations and the portion of the trial court's order which finds it is, is improper.
        The remaining causes of action, breach of contract and breach of implied warranty, were not pleaded in the Oklahoma case, therefore, section 16.064 does not apply to toll limitations on these causes of action. Under Hughes, the statute of limitations on these actions began to run June 23, 1986. Thus, when the McDonalds' filed these two causes of action on August 16, 1989, the two-year statute of limitations had run. Consequently, the trial court's June 28, 1991, order granting summary judgment on the basis of limitations is correct as to the breach of contract and breach of implied warranty actions. We sustain the McDonalds' first point of error as to the negligence claim only. That part of the trial court's June 28, 1991, order dismissing the negligence actions against the firm and Hightower is reversed.
        In their second point of error, the McDonalds assert it was error for the trial court to grant Lisa Cook's motion for summary judgment. Thomas Cook died prior to the date the McDonalds filed suit in Oklahoma. No heir was substituted for him in that suit. Lisa Cook argued because she was never substituted for Thomas Cook in the Oklahoma suit and was first named in the Dallas suit on August 16, 1989, the McDonalds' suit against her was not timely. The trial court agreed, dismissing all claims against Lisa Cook. In its May 1, 1991, order the trial court granted the motion dismissing all of the McDonalds' claims against Lisa Cook. FN:2
        Lisa Cook relies on an Oklahoma statute which states, "[u]nless the Motion for Substitution is made within ninety (90) days of service of the statement of death, the action shall be dismissed without prejudice as to the deceased party." Okla. Stat. Ann. tit. 12, § 2025 (West Supp. 1992). She claims that since no motion for substitution was ever made, the action was dismissed as to Thomas Cook as a matter of law pursuant to section 2025 some time in February 1987. Under this reasoning Lisa Cook did not become a party until August 16, 1989, when the Dallas suit was filed, long after the statute of limitations had run. And any applicable tolling provisions could not apply to one not named as a party.
        However, by order of the Tulsa district court on December 11, 1986, the Oklahoma action was dismissed for lack of personal jurisdiction. That judgment was affirmed by the Oklahoma Supreme Court. Texas courts give a final judgment of a sister state the same force and effect as the judgment is entitled to in the rendering state. Medical Adm'rs, Inc. v. Koger Properties, Inc., 668 S.W.2d 719, 721 (Tex. App.--Houston [1st Dist.] 1983, no writ). An authenticated copy of a foreign judgment creates a presumption of the judgment's validity and its entitlement to full faith and credit. Starzl v. Starzl, 686 S.W.2d 203, 205 (Tex. App.--Dallas 1984, no writ). As the cause was dismissed in December 1986, the same cause of action could not have been dismissed again two months later. Further, the fact that Lisa Cook was not substituted for Thomas Cook in the Oklahoma suit is not dispositive. Oklahoma law provides that a civil action is commenced by filing a petition with the court. Okla. Stat. Ann. tit. 12, § 2003 (West Supp. 1992). Service of process is not necessary, under the laws of Oklahoma, to "commence a civil action." Ross v. Kelsey Hayes, Inc., 825 P.2d 1273, 1276 (Okla. 1991). Under Oklahoma's savings clause, a litigant whose action fails otherwise than on the merits can commence a new action within one year even though the statute of limitations expires before the new action is filed. Okla. Stat. Ann. tit. 12, § 100 (West 1988). Thus, filing alone tolls the statute of limitations and it remains tolled even as to a party not served until a re-filing or one year after dismissal, whichever is first.
        The McDonalds timely filed their negligence claim against Thomas Cook in the Oklahoma suit. According to the Oklahoma statutes, the McDonalds could refile that suit anytime within one year of its dismissal that became final June 29, 1989. Okla. Stat. Ann. tit. 12, § 100 (West 1988). When, on August 16, 1989, the McDonalds refiled, they substituted Lisa Cook, as heir for the deceased Thomas Cook. Thus, the claim of negligence against Lisa Cook was timely. But because no claims for breach of contract, or breach of implied warranty were alleged in the Oklahoma suit, the statute of limitations was not tolled for those actions, and the Oklahoma savings provision cannot be applied to aid the McDonalds. Consequently, we sustain the McDonalds second point only as to the negligence cause of action. The trial court erred in finding that the negligence cause against Lisa Cook is time barred. The portion of the trial court's May 1, 1991, order finding that the breach of contract and breach of implied warranty causes of action are time barred is upheld.
DTPA
        In their third point of error, the McDonalds contend that the trial court erred in granting the November 5, 1990, dismissal of their DTPA claim for failure to give the requisite statutory notice. They claim that due to the fact they had to file their Dallas suit within sixty days of the dismissal of the Oklahoma suit, compliance with the statute was impracticable and, therefore, excused under section 17.505(b) of the act. In their fourth point of error, the McDonalds assert that if notice was not proper and not excused then abatement, rather than dismissal, is the proper remedy.
        The version of section 17.505 of the Texas Business and Commerce Code in effect at the time provided that a plaintiff seeking damages under the DTPA must give written notice to the person at least thirty days before filing the suit. Act of June 13, 1979, 66th Leg., R.S., ch. 603, § 5, 1979 Tex. Gen. Laws 1327, 1330 (amended 1989)(current version at Tex. Bus. & Com. Code Ann. § 17.505(a) (Vernon Supp. 1992)). This statutory notice requirement is designed to afford the opportunity for presuit negotiations and settlement to avoid lengthy and costly litigation. Hash v. Hines, 796 S.W.2d 312, 315 (Tex. App.--Amarillo 1990, writ granted); Sunshine Datsun, Inc. v. Ramsey, 680 S.W.2d 652, 655 (Tex. App.--Amarillo 1984, no writ). The requirement mandates a written notice prior to filing suit. Hash, 796 S.W.2d at 315; The Moving Co. v. Whitten, 717 S.W.2d 117, 123 (Tex. App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). The burden to plead and prove compliance with the notice provision rests on the party seeking recovery. The party seeking to deny recovery, however, must point out the failure to plead or prove notice. Otherwise, the complaint is waived. HOW Ins. Co. v. Patriot Fin. Servs., 786 S.W.2d 533, 537 (Tex. App.--Austin 1990, writ denied). There can be no recovery absent the required presuit notice. Sunshine Datsun, 680 S.W.2d at 654-55.
        Appellees filed a motion to dismiss for lack of jurisdiction, claiming that the McDonalds' DTPA claim should be dismissed for failure to provide the required notice. The McDonalds responded with the argument that giving thirty days written notice was rendered impracticable by reason of the necessity of filing suit in order to prevent the expiration of the statute of limitations. The response mirrors the language of section 17.505(b) which provides an exception to the notice requirement in cases where the burden of providing the thirty days notice would cause the plaintiff to lose the opportunity to file at all due to the running of the statute of limitations. Act of June 13, 1979, 66th Leg., R.S., ch. 603, § 5, 1979 Tex. Gen. Laws 1327, 1330 (amended 1989)(current version at Tex. Bus. & Com. Code Ann. § 17.505(b) (Vernon Supp. 1992)). In order to qualify for this exception, a plaintiff must plead and offer some proof that the giving of notice was "rendered impracticable" by the impending expiration of the limitations period. HOW Ins. Co., 786 S.W.2d at 538. The McDonalds argue that they were unable to retain Texas counsel until July 1989 and their filing deadline was August 19, 1989. However, the law does not state that a party is released from the notice requirement if an attorney is hired less than thirty days prior to the filing deadline. Further, the record does not show what day in July the McDonalds hired their Texas attorney. If counsel was hired in the first half of the month, they could conceivably meet the notice requirement prior to the running of the sixty days. The record does not show that the McDonalds learned of their DTPA claim twenty-nine days or less before the end of the sixty days allowed for filing in Texas. The McDonalds only asserted that filing was impracticable. We conclude that the McDonalds' did not comply with the notice requirement and did not place themselves within the exception provided in section 17.505(b). However, where the party seeking recovery fails to give the requisite DPTA notice, the appropriate remedy is to abate the action and not to dismiss the action. The appellate remedy is to reverse and remand the cause with instructions for abating the action to afford the opportunity to give notice as a prerequisite to maintaining the action. Hash, 796 S.W.2d at 315; Sunshine Datsun, 680 S.W.2d at 655.
        Therefore, we sustain points three and four and reverse the trial court's order dismissing the McDonalds' DTPA claims against the firm, Hightower, and Cook, and remand the case as to those claims with instructions to the trial court to abate the suit to allow the McDonalds to comply with the notice requirement.
        In their fifth point of error, the McDonalds assert that the trial court erred in granting Hightower's motion for summary judgment on the DTPA claim in a second order dated November 5, 1990.
        Rule 166a(c) of the Texas Rules of Civil Procedure provides that "[t]he motion for summary judgment shall state the specific grounds therefore" and that summary judgment "shall be rendered forthwith if . . . the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response." Tex. R. App. P. 166a(c). A summary judgment movant may not be granted judgment as a matter of law on a cause of action not addressed in a summary judgment proceeding. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). The defendant-movant must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively establishing that there is no genuine issue of material fact concerning one or more of the essential elements of plantiff's cause of action, or by establishing each element of an affirmative defense to plaintiff's cause of action as a matter of law. Id. However, in order to conclusively establish the requisite elements, the motion must identify or address the cause of action or defense and its elements. Id.
        In his motion, Hightower stated that the "summary judgment evidence establishes as a matter of law that Plaintiffs have no claim against Defendant due to the lack of any attorney-client relationship." He also denied any violation of the DTPA, negligence, misrepresentation, breach of implied warranty or breach of contract. He argued that 1) he was not vicariously liable for the actions of Cook; 2) there is no cause of action for implied warranty of professional services; 3) a legal malpractice claim cannot be based on contract; and 4) a legal malpractice claim does not arise from providing business advice. We find no argument in the motion with regard to the DTPA claim.
        Since Hightower's motion for summary judgment failed to address or identify all the violations alleged, or the essential elements of a DPTA claim, and failed to address any defenses to that cause of action, we hold that the granting of summary judgment as to the DTPA cause of action was error. We sustain the McDonalds' fifth point of error. We reverse the trial court's November 5, 1990, order granting Hightower a summary judgment on the DTPA claim.
CONCLUSION
        We reverse the trial court's orders as to the firm, Hightower and Cook on the negligence cause of action and remand that cause to the trial court for further proceedings. We reverse the trial court's orders as to the firm, Hightower, and Cook, on the DTPA cause of action, and remand that cause to the trial court with instructions to abate in order to give the McDonalds the opportunity to comply with the notice requirements. We affirm the trial court's orders as to the firm and Cook on the breach of contract and breach of implied warranty causes of action.
 
                                                          
                                                          BARBARA E. ROSENBERG
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
911066F.U05
 
 
FN:1 The McDonalds pleaded negligence, breach of contract and breach of implied warranty. As legal malpractice sounds in tort, not contract, we will apply the two-year limitations period to each of these alleged causes of action. Citizens State Bank v. Shapiro, 575 S.W.2d 375, 387 (Tex. Civ. App.--Tyler 1978, writ ref'd n.r.e.). None of the parties has argued applicability of the four-year limitations period.
FN:2 The DPTA claim against Lisa Cook was dismissed by the November 5, 1990, court order. That cause of action is not addressed in this point of error.
File Date[08-31-92]
File Name[911066F]