P. MICHAEL JUNG
CHRISTINE D. ROSEVEARE
Strasburger & Price, L.L.P.
901 Main Street, Suite 4300
Dallas, Texas 75202
The authors acknowledge the contribution of Alan B. Daughtry,
Esq., of Vinson & Elkins, L.L.P., Houston, who co-authored a
prior edition of this outline.
ADVANCED CIVIL TRIAL COURSE
August 30, 2002 - Dallas, TX
October 11, 2002 - Houston, TX
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Business Address: 4300 Bank of America Plaza telephone: 214-651-4724
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Dallas, Texas 75202 firstname.lastname@example.org
Education: Harvard Law School
J.D. magna cum laude, 1979
Massachusetts Institute of Technology
S.B.s in Earth & Planetary Sciences and Mathematics, 1975
Ohio Wesleyan University (attended 1971-72)
Professional Strasburger & Price, L.L.P., Attorneys and Counselors
Experience: Appellate Practice Group Leader
Partner, 1986-; Associate, 1980-85
Over 300 appeals handled in whole or in part, including 143 orally argued
Law Clerk to Hon. Patrick E. Higginbotham, United States District Judge for the Northern
District of Texas, 1979-80
C. S. Draper Laboratory, Inc.
Technical Staff, 1975-76 (analysis of Space Shuttle reentry guidance)
Certification: Civil Appellate Law (Texas Board of Legal Specialization), 1987-
Selected Supreme Court of Texas Task Force on the Jury Charge, 1991-94
Associations: Texas Association of Defense Counsel, 1983-
Amicus Curiae Committee, 1986-97
President's Award, 1992, 1997
Dallas Bar Association, 1980-
Appellate Section, 1990-
Bar Association of the Fifth Federal Circuit, 1984-
Seminar Appellate, civil procedure, evidence, and tort topics for:
Presentations: Baylor University Law School, 1988
Continuing Education Services, 1987-88
Dallas Bar Association, 1990
Dallas Bar Association Appellate Law Section, 1995, 2001
Federal Bar Association, 1987-93
SMU School of Law, 1995
State Bar of Texas, 1985, 1989, 1992, 1994, 1997-2002
Texas Association of Defense Counsel, 1988, 1992-96, 2000
Texas Motor Transport Association, 1987
University of Houston Law Foundation, 1994
University of Texas School of Law, 1994-96, 2000
Business Address: 901 Main Street, Ste. 4300
Dallas, Texas 75202
Education: Washington and Lee School of Law
J.D. cum laude, 1998
B.A. in Political Science, magna cum laude, 1995
Professional Strasburger & Price, L.L.P., Attorneys and Counselors
Experience: Appellate Practice Group
Law Clerk to Hon. H. Emory Widener, Jr., Judge, United States Court of Appeals for the
Fourth Circuit, 1998-99
Law-Related Publications: Co-Author, "A Duty to Protect? The State Created Danger Doctrine," For the Defense,
November 2001, at 25.
Co-Author, "Preparing a Governmental Client for Response to Mass Torts," in Defense
Research Institute, Civil Rights and Governmental Tort Liability Defense
Practice Seminar, January 2000, at 1.
Author, Note, "Capital Punishment and the Courts-Martial: Questions Surface Following Loving v. United States," 55 Washington and Lee Law Review 577 (1998).
I. INTRODUCTION. 1
II. ACCRUAL. 1
A. The Basic Test. 1
B. Accrual of Specific Causes of Action. 2
1. Claims Related to Occupational Disease. 2
2. Breach of Fiduciary Duty. 2
3. Fraud and Deceptive Trade Practices. 2
4. Claims Related to Insurance Coverage. 2
5. Professional Malpractice. 3
6. Indemnity and Contribution. 4
7. Medical Malpractice. 4
C. Continuing Torts. 5
D. Statutes of Repose. 5
III. DEFERRAL OF ACCRUAL UNDER THE DISCOVERY RULE. 6
A. The Injury Must Be Inherently Undiscoverable. 7
B. The Injury Must Be Objectively Verifiable. 9
C. Application of the Discovery Rule to Particular Claims. 10
1. Latent Occupational Disease. 10
2. Professional Malpractice. 11
3. Cases Involving Medical Treatment. 11
D. Subsequent Discovery of Additional Injuries. 11
IV. TOLLING OF LIMITATIONS THROUGH FRAUDULENT CONCEALMENT 12
A. Active Concealment. 12
B. Failure to Disclose Despite Duty to Disclose. 12
C. Cessation of the Duty to Disclose. 13
D. Actual or Constructive Discovery of the Injury. 13
V. TOLLING DUE TO MISNOMER AND MISIDENTIFICATION. 13
VI. STATUTORY TOLLING THEORIES. 15
A. Legal Disability. 15
B. Death of a Party. 15
C. Temporary Absence from the State. 15
D. The Savings Statute. 16
E. Written Acknowledgment of Claims. 16
F. Relation Back of Amended or Supplemental Pleadings. 17
G. Reopening of the Limitations Period for Counterclaims. 17
VII. THE OPEN COURTS DOCTRINE. 17
A. No Reasonable Opportunity to Sue Within the Limitations Period. 17
B. Due Diligence Following Discovery of Injury. 18
VIII. CHOICE OF LAW. 18
APPENDIX LIMITATIONS PERIODS 19
Statutes of limitations or repose afford plaintiffs
a period of time that the Legislature deems reasonable in which to present claims. Ultimately,
however, such statutes cut off the pursuit of cases in
which "the search for truth may be seriously impaired by the loss of evidence, whether by death or
disappearance of witnesses, fading memories,
disappearance of documents or otherwise." Murray
v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828
(Tex. 1990). Statutes of limitation or repose compel
a party to be active in asserting its rights and punish
the failure to do so within a reasonable time.
Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319
(1941). Like any other affirmative defense, limitations is a plea in confession and avoidance, and may
be waived if not properly pled. Woods v. William
M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988).
This paper will discuss generally the application of limitations to various claims, with emphasis
on recent developments in the law. While the beginning question for any limitations analysis is the
accrual of a cause of action for limitations purposes,
the majority of recent cases (and this paper) focus on
factors which defer or prolong the running of limitations. Because there is not much dispute as to the
limitations periods which govern particular causes of
action, these will not be discussed in the body of the
paper, but will instead be listed in an appendix.
A. The Basic Test.
Any limitations analysis must begin with the
question of when applicable cause(s) of action accrue. A cause of action generally accrues, and the
statute of limitations begins to run, when facts come
into existence that authorize a claimant to seek a
judicial remedy. Johnson & Higgins, Inc. v.
Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.
1998). Typically, the limitations period begins to
run when a wrongful act causes legal injury, regardless of when the plaintiff learns of the injury and
even if not all resulting damages have occurred.
Lubbock County v. Trammel's Lubbock Bail Bonds,
45 Tex. Sup. Ct. J. 873, 2002 Tex. LEXIS 91 (June
20, 2002); S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996);
Savage v. Psychiatric Institute, Inc., 965 S.W.2d
745, 749 (Tex. App. Fort Worth 1998, pet. denied).
The "legal injury" rule is often traced to Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8
S.W. 36 (1888). There the defendant cut an arch in
the plaintiff's building while installing a water pipe.
The arch, being concealed, was not discoverable
until it eventually caused the building to settle and
crack. The plaintiff brought suit three years after the
negligence was committed but within two years of
the manifestation of the damage. The Court concluded that the action was barred by limitations:
If . . . the act of which the injury was the
natural sequence was a legal injury, by
which is meant an injury giving a cause of
action by reason of its being an invasion
of a plaintiff's right, then, be the damage
however slight, limitations will run from
the time the wrongful act was committed,
and will bar an action for any damages
resulting from the act. . . . [A] mere want
of knowledge by the owner of injury to his
property does not prevent the running of
8 S.W. at 37-38. Thus, the cause of action accrues
and limitations will run at the time of the injury,
although application of the discovery rule and other
tolling provisions, discussed infra, will sometimes
defer the commencement of limitations until the
wrongful act and injury are or should have been
known. KPMG Peat Marwick v. Harrison County
Financing Corp., 988 S.W.2d 746 (Tex. 1999).
B. Accrual of Specific Causes of Action.
1. Claims Related to Occupational Disease.
In Childs v. Haussecker, 974 S.W.2d 31 (Tex.
1998), the Supreme Court struggled with the notion
of accrual in latent occupational disease cases.
Because the lag time between exposure and the
resulting manifestation of disease often stretches
over several decades, the Court was concerned with
formulating a functional accrual analysis while still
preventing unnecessary speculative lawsuits for
diseases that may never mature or materialize.
Although the majority of the Childs opinion focused
on the application of the discovery rule linking
causation to the work environment, discussed infra
at Section III.C.1, a significant portion of the opinion dealt with accrual. In order to deter premature
suits, the Court held that a cause of action for injuries due to occupational exposure accrues when an
occupational disease manifests itself. 974 S.W.2d at
2. Breach of Fiduciary Duty.
Due to the special relationship between the
parties, claims for breach of fiduciary duty are an
exception to the "legal injury" rule. The accrual of
a cause of action for breach of fiduciary duty typically awaits actual or constructive knowledge of the
fiduciary's wrongful act. The statute of limitations
does not begin to run until the claimant knew or
should have known of facts that in the exercise of
reasonable diligence would have led to the discovery
of the wrongful act. Little v. Smith, 943 S.W.2d 414,
420 (Tex. 1997); Slay v. Burnett Trust, 143 Tex.
621, 187 S.W.2d 377, 394 (1945).
In effect, the accrual rule for a breach of fiduciary duty claim de facto incorporates the discovery
rule. This rationale was developed in Computer
Associates International, Inc. v. Altai, Inc., 918
S.W.2d 453 (Tex. 1996):
But the fiduciary rationale is, in reality, a
variation on the inherently discoverable
element. Fiduciaries are presumed to possess superior knowledge, meaning the injured party, the client, is presumed to possess less information than the fiduciary.
Consequently, in a fiduciary context, it
may be said that the nature of the injury is
presumed to be inherently undiscoverable
. . . .
918 S.W.2d at 456. This deferral of accrual does not
last forever; rather it changes with circumstances.
As recognized in S.V. v. R.V.:
While a person to whom a fiduciary duty
is owed is relieved of the responsibility of
diligent inquiry into the fiduciary's conduct, so long as the relationship exists,
when the fact of misconduct becomes
apparent it can no longer be ignored,
regardless of the nature of the relationship.
933 S.W.2d at 8.
3. Fraud and Deceptive Trade
Similar to breach of fiduciary duty, a cause of
action for fraud accrues when the fraud was discovered, or in the exercise of reasonable diligence
should have been discovered. Oliver v. Rogers, 976
S.W.2d 792, 805 (Tex. App. Houston [14th Dist.]
1998, pet. denied). Likewise, an action for deceptive trade practice accrues when the claimant discovered, or should have discovered in the exercise of
reasonable diligence, the wrongful or deceptive act.
Sutton v. Mankoff, 915 S.W.2d 152 (Tex. App.
Fort Worth 1996, writ denied).
4. Claims Related to Insurance Coverage.
When an insurer wrongfully denies coverage,
the denial is the injury-producing event which
triggers accrual of a cause of action for limitations
purposes. Murray v. San Jacinto Agency, Inc., 800
S.W.2d 826, 828 (Tex. 1990). The insurer's denial
of coverage likewise triggered the running of limitations for a claim that an insurance agent negligently
failed to procure insurance for the insured. Johnson
& Higgins, Inc. v. Kenneco Energy, Inc., 962
S.W.2d 507, 519 (Tex. 1998). (Also worthy of note,
the Johnson & Higgins decision held that claims
under Tex. Ins. Code art. 21.21 are covered under
the same two-year statute of limitations for claims
under the DTPA.)
In first-party insurance cases, subsequent
claims involving continuous damage may be sufficient to revive the running of limitations even
following an insurer's express denial. Pena v. State
Farm Lloyds, 980 S.W.2d 949 (Tex. App. Corpus
Christi 1998, no pet.). In Pena, an insurer denied
homeowners' claims for damage due to slab movement. Damage from slab movement persisted over
time, and the homeowners submitted an additional
claim. The insurer reinvestigated coverage, and
again denied the claim. This time the homeowners
filed suit. The insurer obtained summary judgment
on limitations, but the court of appeals reversed,
holding that, because the damages were caused by a
continuing problem, the insurer's reinvestigation of
the claim reset the limitations period. Referring to
Stevens v. State Farm Fire & Casualty Co., 929
S.W.2d 665 (Tex. App. Texarkana 1996, writ
denied), the Pena court found that timely claims for
additional payments began the running of the statute
of limitations anew.
5. Professional Malpractice.
Accrual of a cause of action for professional
malpractice requires (1) the commission of a tortious
act and (2) the suffering of a legal injury. Atkins v.
Crosland, 417 S.W.2d 150, 153 (Tex. 1967); see
also Randolph v. Resolution Trust Corp., 995 F.2d
611, 617 (5th Cir. 1993), cert. denied, 510 U.S.
When an attorney commits malpractice, the
accrual is determined by the date when all appeals in
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); Hughes v.
Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex.
1991). This is a bright-line rule which applies
regardless of whether the plaintiff replaces the
allegedly malpracticing lawyer during the pendency
of the underlying claim. Apex Towing, 41 S.W.3d at
119. The reasoning is that application of the normal
accrual provision could put the client/plaintiff in a
difficult position. Faced with the running of the statute of limitations, the client may be forced to take
inconsistent positions in the underlying case and the
malpractice case. Id. at 121.
The Supreme Court has declined, however, to
extend the accrual of DTPA claims brought against
attorneys to the same point the accrual of common
law claims were extended by Hughes. Underkofler
v. Vanasek, 55 S.W.3d 343 (Tex. 2001). In refusing
to do so, the Supreme Court noted that the DTPA
specifically limits exceptions to limitations for
DTPA claims to fraudulent concealment and the
discovery rule. 53 S.W.3d at 346.
Likewise, the Supreme Court in Murphy v.
Campbell, 964 S.W.2d 265 (Tex. 1997), did not
extend the full range of protection for claimants of
faulty tax advice to that provided to legal malpractice claimants in Hughes. While the discovery rule
may ultimately apply to an accounting malpractice
claim, accrual is not deferred while the underlying
suit for which the malpractice claims arises is
prosecuted. Murphy, 964 S.W.2d at 273. Citing
Hughes, the plaintiffs in Murphy argued that the
accrual should be deferred until the underlying tax
litigation on which the malpractice claim was based
was finally resolved. The Court disagreed. The
underlying policy reasons which justify deferring
accrual were not present in cases involving malpractice by accountants. In the Court's view, no conflict
would arise in malpractice cases based upon tax
No similar impediment prevented plain-tiffs in the present case from suing Touche
Ross while the Tax Court litigation was
pending. Filing a malpractice suit against
Touche Ross would not have affected its
testimony in the tax case. While it is unreasonable to expect an attorney to continue to represent a client who is simultaneously suing the attorney for mishandling
the very same matter, it is not unreasonable to expect an expert to testify consistently regardless of whether his client is
suing him. The relationship between
attorney and client is simply different
from that between party and witness or
party and expert.
Id. at 272.
6. Indemnity and Contribution.
In Ingersoll-Rand Co. v. Valero Energy Corp.,
997 S.W.2d 203, 210-11 (Tex. 1999), the Supreme
Court reaffirmed the long-standing rule that a cause
of action based upon indemnity from liability matures, and therefore accrues, on the date that the
indemnitee's liabilities become fixed and certain.
Thus, limitations does not run until judgment is
rendered in the underlying case.
A similar rule applies to contribution claims.
See, e.g., City of San Antonio v. Talerico, 98 Tex.
151, 81 S.W. 518, 520 (1904); Conroe Truck &
Tractor, Inc. v. Childs Truck Equipment, Inc., 723
S.W.2d 207, 208-09 (Tex. App. Beaumont 1986,
writ ref'd n.r.e.); Amoco Chemicals Corp. v. Malone
Service Co., 712 S.W.2d 611, 614-15 (Tex. App.
Houston [1st Dist.] 1986, no writ). A contrary
federal holding, Powell v. Charles Offutt Co., 576 F.
Supp. 272, 274-78 (E.D. Tex. 1983), aff'd mem.,
731 F.2d 886 (5th Cir. 1984), was later overruled by
Koonce v. Quaker Safety Products & Manufacturing, 798 F.2d 700, 705-15 (5th Cir. 1986). (Note
that whether the applicable contribution statute
permits a contribution claim to be brought separately
from the main action is a distinct substantive question. See P. Michael Jung, Contribution in Civil
Cases § IV(D), in State Bar of Texas, 21st Annual
Advanced Civil Trial Course (1997).)
The deadline imposed by the "responsible third
party" statute, Tex. Civ. Prac. & Rem. Code
§ 33.004(d), is not a statute of limitations. That
deadline governs a third-party contribution defendant's status as a responsible third party whose comparative responsibility is submitted in the § 33.003
jury question, but does not govern the viability of
the contribution claim under § 33.015.
7. Medical Malpractice.
For claims based upon medical treatment, the
Medical Liability Act, Tex. Rev. Civ. Stat. art.
4590i, provides an exclusive cause of action. Shepherd v. Ledford, 962 S.W.2d 28, 31 (Tex. 1998);
Bala v. Maxwell, 909 S.W.2d 889, 891-93 (Tex.
1995). The Act includes a strict two-year statute of
limitations, with specific dates for the accrual of a
cause of action: (1) the occurrence of the breach or
tort; (2) the date the health care treatment that is the
subject of the claims is completed; or (3) the date the
hospitalization for which the claim is made is completed. Tex. Rev. Civ. Stat. art. 4590i, § 10.01. The
plaintiff may not simply choose the most favorable
of the three possible statutory accrual dates. Rather,
when the precise date of the alleged breach or tort is
ascertainable from the facts of the case, the statute of
limitations begins to run from that date. Bala, 909
S.W.2d at 891; see also Shah v. Moss, 67 S.W.3d
836 (Tex. 2001).
The statute provides for a somewhat relaxed
accrual for claims involving a course of treatment.
Where the injury results not from a specific instance
of negligence, but rather from a negligent course of
treatment, limitations accrues on the last day of
treatment. Bala, 909 S.W.2d at 891. The rationale
for allowing a plaintiff to measure limitations from
the last day of treatment is to assist the plaintiff who
was injured during a course of treatment but is
unable to ascertain the precise date of the injury.
Husain v. Khatib, 964 S.W.2d 918, 919 (Tex. 1998);
Savage v. Psychiatric Institute, Inc., 965 S.W.2d 745
(Tex. App. Fort Worth 1998, pet. denied).
However, a course of treatment does not exist
merely because of the continuing existence of a
doctor-patient relationship. Rowntree v. Hunsucker,
833 S.W.2d 103, 104 (Tex. 1992). Courts have been
restrictive in finding the existence of a course of
treatment. In particular, no course of treatment
exists in cases where the plaintiff alleges a failure to
diagnose. Bala v. Maxwell, 909 S.W.2d at 891. In
Bala, the patient underwent a procedure in 1986
which revealed a lesion in the stomach, but no signs
of malignancy. The procedure was repeated in
1987, and, at that time the possibility of a malignancy could not be ruled out. No course of treatment was instigated and in 1989 the same procedure
revealed cancer. The plaintiff argued that the
successive 1986, 1987, and 1989 procedures constituted a continuing course of treatment, and therefore
limitations began to run on the last day of treatment
when the cancer was discovered. The Supreme
Court disagreed and held that the failure to begin a
course of treatment is not a course of treatment for
purposes of limitations. It reasoned that the
misdiagnosis provided a concrete date in 1987 when
the doctor failed to perform further tests despite the
indication of a possible malignancy.
Even when a plaintiff arguably has a general
course of treatment with a particular doctor, that
course of treatment must causally relate to the
medical condition for which suit is brought. Husain
v. Khatib, 964 S.W.2d at 919; Rowntree v.
Hunsucker, 833 S.W.2d at 104. A good example of
this requirement is Gross v. Kahanek, 3 S.W.3d 518
(Tex. 1999). In that case, Dr. Gross treated Kyndil
Kahanek's seizure's with drug therapy. He
continued treating her and updating her prescriptions
until August 1992, when he requested that the
family physician monitor Kyndil. Kyndil's last
prescription from Dr. Gross ran out in September
1992. On June 13, 1993, Kyndil died from drug
poisoning from the seizure medication. The Court
held that the course of treatment with Dr. Gross
ended in September 1992 and barred the wrongful
death claim filed on June 13, 1995. 3 S.W.3d at 521.
C. Continuing Torts.
While, under the basic accrual theory, a cause
of action accrues when a wrongful act causes some
legal injury, an exception to this general rule exists
for continuing torts. First General Realty Corp. v.
Maryland Casualty Co., 981 S.W.2d 495, 501 (Tex.
App. Austin 1998, pet. denied); Adler v. Beverly
Hills Hospital, 594 S.W.2d 153, 154 (Tex. Civ. App.
Dallas 1980, no writ). A continuing tort involves
wrongful conduct inflicted over a period of time that
is repeated until desisted, and each day creates a
separate cause of action. Two Pesos, Inc. v. Gulf
Insurance Co., 901 S.W.2d 495, 500 (Tex. App.
Houston [14th Dist.] 1995, no writ); Arquette v.
Hancock, 656 S.W.2d 627, 629 (Tex. App. San
Antonio 1983, writ ref'd n.r.e.). Limitations begins
to accrue when the defendant's tortious conduct
ceases. Tectonic Realty Investment Co. v. CNA
Lloyd's of Texas Insurance Co., 812 S.W.2d 647,
654 (Tex. App. Dallas 1991, writ denied).
At first blush, the continuing tort doctrine may
seem to conflict with the general rule of accrual that
limitations is not tolled pending the manifestation of
subsequent injuries. See Childs v. Haussecker, 974
S.W.2d 31, 33 (Tex. 1998); Howard v. Fiesta Texas
Show Park, Inc., 980 S.W.2d 716 (Tex. App. San
Antonio 1998, pet. denied). However, the two
principles are not in conflict. Accrual is not tolled
for subsequent injuries because a wrongful act and
some identifiable legal injury have already occurred.
That additional legal injuries may subsequently
occur does not vitiate that the initial legal injury, no
matter how small, was sufficient to trigger the
accrual of a cause of action and start the running of
limitations. In cases subject to the continuing tort
doctrine, however, not only are subsequent injuries
occurring, but additional wrongful acts triggering
these subsequent legal injuries, and thus providing
separate causes of action, are occurring as well.
D. Statutes of Repose.
Statutes of repose protect parties from the burden of indefinite potential liability and represent a
response to the inadequacy of traditional statutes of
limitation, whose time periods begin upon occurrence of the injury or upon discovery of the claim.
Boeker v. Syptak, 916 S.W.2d 59, 62 (Tex. App.
Houston [14th Dist.] 1996, no writ). "Unlike traditional limitations provisions, which begin running
upon accrual of a cause of action, a statute of repose
runs from a specified date without regard to accrual
of any cause of action." Trinity River Authority v.
URS Consultants, Inc. Texas, 889 S.W.2d 259,
261 (Tex. 1994). In fact, statutes of repose can cut
off a cause of action before it accrues. 889 S.W.2d
The most familiar statute of repose involves the
design and construction of improvements to real
property. See Tex. Civ. Prac. & Rem. Code §§
16.008-16.009. Under these two sections, causes of
action arising out of improvements or equipment
attached to real property are barred ten years after
substantial completion of the project. The purpose
is to protect certain actors (architects, engineers, and
contractors) from the threat of claims arising many
years after completion of a building or project.
Trinity River Authority, 889 S.W.2d at 261.
A lesser known statute of repose exists for
manufacturing equipment. Tex. Civ. Prac. & Rem.
Code § 16.012 provides a fifteen year cut-off for
products liability claims against the manufacturer of
manufacturing equipment used in the fabrication or
processing of personal property.
While not commonly referred to as such, the
limitations period for breach of warranty claims
under Tex. Bus. & Com. Code § 2.725 functions as
a statute of repose. Under § 2.725, a cause of action
for breach of warranty must be brought within four
years of tender of delivery of the product, regardless
of when legal injury occurs. Safeway Stores, Inc. v.
Certainteed Corp., 710 S.W.2d 544, 547 (Tex.
III. DEFERRAL OF ACCRUAL UNDER
THE DISCOVERY RULE.
When an injury is not easily capable of detection, accrual of a cause of action is sometimes
deferred until discovery. Under the discovery rule,
accrual is deferred until such time as the plaintiff
knew, or in the exercise of reasonable diligence,
should have known, of the facts giving rise to the
cause of action. Computer Associates Int'l, Inc. v.
Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).
When the discovery rule applies, it defers
accrual of a cause of action until the plaintiff discovers or, through the exercise of reasonable care and
diligence, should discover the "nature of the injury."
Childs, 974 S.W.2d at 40. Discovering the "nature
of the injury" requires knowledge of the wrongful
act and the resulting injury. Id.; Farias v. Laredo
National Bank, 985 S.W.2d 465, 473 (Tex. App.
San Antonio 1997, writ denied) (accrual deferred for
limitations purposes only so long as necessary for
plaintiff to discover injury). At this point, the
limitations period begins, even if the plaintiff does
not know the identity of the wrongdoer. Childs, 974
S.W.2d at 40. As put by one court of appeals:
Under Texas law, it is the discovery of the
injury, and not the discovery of all the
elements of the cause of action that starts
the running of the clock for limitations
purposes. . .. [A]ll that is required to
commence the running of the limitations
period is the discovery of an injury and its
general cause, not the exact cause in fact
and the specific parties responsible.
Bayou Bend Towers v. Monhattan Construction, 866
S.W.2d 740, 743 (Tex. App. Houston [14th Dist.]
1993, writ denied).
This principle was discussed by the Supreme
Court in KPMG Peat Marwick, 988 S.W.2d at 749.
KPMG provided auditing services to a county
housing company for a series of bonds that had been
issued. One of KPMG's primary responsibilities
was managing a trustee's compliance with the trust
indenture for the bonds. Unknown to the county,
KPMG was later independently retained by the
trustee to help monitor the trust's capital reserves
fund. When the trustee prematurely sold assets in
the capital reserve fund for a loss, the county sued
the trustee for mismanagement. The trustee ultimately prevailed in its defenses, but during the
course of that lawsuit, the county learned of
KPMG's dual representation and filed suit. As a
defense to limitations, the county argued that accrual
should be deferred because KPMG's wrongdoing
was not known. The Court disagreed, noting that
accrual does not hinge on the identity of the wrongdoer or the specific nature of each wrongful act that
may have contributed to the injury.
Another example is provided by Seibert v.
General Motors Corp., 853 S.W.2d 773 (Tex. App.
Houston [14th Dist.] 1993, no writ). In that case,
the plaintiff had been injured in an automobile
collision. Over two years after the accident, the
plaintiff saw a news program which criticized the
safety of his car's seatbelt. As a defense to limitations, the plaintiff argued that, until he saw the
news program, he did not know that the seatbelt
might have contributed to his injuries. The court
disagreed, noting that accrual was triggered by
discovery of the injury, not the tortfeasor, and the
plaintiff certainly had had knowledge of the car
Nor is accrual of a cause of action deferred
until the plaintiff knows the full extent of his injuries. Howard v. Fiesta Texas Show Park, Inc., 980
S.W.2d 716 (Tex. App. San Antonio 1998, pet.
denied). Howard, who had pre-existing back problems, was injured during a roller coaster ride at the
Fiesta Texas amusement park. During the ride, he
experienced a sharp, prolonged pain in his back. He
was later diagnosed with a herniated disc, but,
because of his previous back problems, did not feel
that he could successfully link the roller coaster ride
as a contributing factor to his spinal degeneration.
A year later, after experiencing nausea and other
symptoms, he was diagnosed with a tear in the fluid
filled membrane surrounding his brain and spinal
cord, and he sued the amusement park. Because he
had not known of this further, more significant
injury, Howard argued that his cause of action had
not fully accrued for limitations purposes. In upholding a summary judgment on limitations, the
court held that, once any legal injury occurs, a
plaintiff is not permitted to delay filing suit until the
full extent of his injuries becomes known.
The Supreme Court has "described the discovery rule as 'a very limited exception to statutes of
limitations,' and [has] condoned its use only when
the nature of the plaintiff's injury is both inherently
undiscoverable and objectively verifiable." Wagner
& Brown, Ltd. v. Harwood, 58 S.W.3d 732, 734
(Tex. 2001) (quoting Altai, 918 S.W.2d at 455-56);
see S.V. v. R.V., 933 S.W.2d at 6.
A. The Injury Must Be Inherently Undiscoverable.
For purposes of application of the discovery
rule, an injury is inherently undiscoverable if it is the
type of injury that is not generally discoverable by
the exercise of reasonable diligence. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998);
Altai, 918 S.W.2d at 455. In S.V. v. R.V., the Supreme Court discussed this requirement:
To be "inherently undiscoverable," an
injury need not be absolutely impossible
to discover, else suit would never be filed
and the question whether to apply the
discovery rule would never arise. Nor
does "inherently undiscoverable" mean
merely that a particular plaintiff did not
discover his injury within the prescribed
period of limitations; discovery of a particular injury is dependent not solely on
the nature of the injury but on the
circumstances in which it occurred and
plaintiff's diligence as well. An injury is
inherently undiscoverable if it is by nature
unlikely to be discovered within the prescribed limitations period despite due
933 S.W.2d at 7.
The Court first discussed the "inherently undiscoverable" requirement in Computer Associates
International, Inc. v. Altai, Inc. That case involved
claims for misappropriation of trade secrets. When
a former Computer Associates employee left the
company, he took with him a codebook containing
codes for a computer operating system. The employee was hired by Altai, and he copied aspects of
the code into Altai's own operating system. Noting
similarities of the products, Computer Associates
sued in federal court four years later. Due to uncertainty in the application of Texas' discovery rule, the
Fifth Circuit certified a question to the Supreme
Court of Texas.
In response, the Court developed the two-pronged discovery rule test, but focused exclusively
on the first part of that test. In discussing the
discoverability of the injury, the Court focused on
the type or category of the claim made. The Court
noted that, in this day and age, trade secrets are a
"jealously guarded commodity," and that companies
do and are expected to take precautions to prevent
misappropriation. 918 S.W.2d at 456-57. The Court
then noted that such injuries are often discoverable:
"While some trade secret misappropriations might
not be quickly discovered, this isolated fact does not
alter reality that, in most cases, trade secret misappropriation generally is capable of detection within
the time allotted for the bringing of such suits." Id.
at 457. By way of example, the Court noted that
Computer Associates could have instituted safety
precautions designed to detect or deter misappropriations, such as employing control logs. Id.
That the specific theft in Altai was not discovered was not of particular importance. Were that to
be the test, "the rationale [would] mandate applying
the discovery rule exception to every case, thus
eviscerating the whole notion of an absolute time bar
to litigation." Id. The key to the rule's application
was whether the type of injury, generally, was one
that would not ordinarily be discovered.
In HECI Exploration Co. v. Neel, 982 S.W.2d
881 (Tex. 1998), the Supreme Court reemphasized
the categorical approach to the discovery rule: "We
explained in Altai that the applicability of the discovery rule is determined categorically. Although
the particular injury in Altai may not have been
discovered, it was the type of injury that generally is
discoverable by the exercise of reasonable diligence." HECI, 982 S.W.2d at 886. In HECI, the
royalty owner alleged a cause of action against the
operator of her lease based on his failure to notify
her that she was entitled to sue an operator on a
neighboring lease for an injury to the common
reservoir under the two properties. The Supreme
Court stated that the royalty owner knew or should
have known that the reservoir was a common reservoir, and that where wells are completed into a
common reservoir, on neighboring properties, "there
is the potential for . . . damage to the reservoir."
Because the operator on the royalty owner's lease
was a source of information about the existence of
the common reservoir and operations in it, as were
the records of the Railroad Commission, "a cause of
action for [the operator's] failure to provide that
same information is not inherently undiscoverable."
Id. at 887.
Some subsequent cases applying the discovery
rule have tended to focus on the specific facts of a
particular claimant's injury, rather than considering
whether the claim, in general, is an appropriate
subject for application of the discovery rule. This
non-categorical approach is incorrect. The threshold
determination in any discovery rule analysis is
whether the claim "inherently," or "by nature" is of
the type that makes it "inherently" undiscoverable.
S.V. v. R.V., 933 S.W.2d at 7. The relevant inquiry
is not whether the specific facts of a particular
claimant's cause of action were undiscoverable, but
rather whether the claim is of a type that would not
ordinarily be discoverable. Only if that question is
answered affirmatively should the court then consider the specific facts of the case to determine
whether the claimant knew or should of known of
the injury through reasonable diligence. Instead,
some courts have blurred the distinction between
these two separate inquiries and simply analyzed
whether the claimant could have discovered the
injury. This mode of analysis was explicitly rejected
by the Supreme Court in Altai:
In the past, this Court has noted the
"shocking results" of barring a plaintiff's
suit before the injury has even been discovered. This rationale offers no principled basis for distinguishing between cases
in which the rule applies and those in
which it does not. If carried to its logical
conclusion, the rationale mandates applying the discovery rule exception to every
case, thus eviscerating the whole notion of
an absolute time bar to litigation.
918 S.W.2d at 457.
One case indicative of this improper analysis is
Tanglewood Terrace, Ltd. v. City of Texarkana, 996
S.W.2d 330 (Tex. App. Texarkana 1999, no pet.),
which involved the City of Texarkana's overcharging of a residential apartment complex for water
usage from 1976 to 1993. In connection with testing
for potential water leaks, Tanglewood discovered in
1993 that it had been charged for an extra 100 water
meters. It sued the City in 1994. Asserting the two-year statute of limitations, the City obtained a partial
summary judgment for the overcharges from 1976
until 1992. Because Tanglewood could have
learned of the overcharging by auditing the charges
and meters, Tanglewood was not "unable to know"
its injury and that the discovery rule did not apply to
toll limitations. On appeal, the court sustained
Tanglewood's invocation of discovery rule. Referring to S.V. v. R.V., the court held that the test was
not whether discovery was impossible, but whether
in the exercise of reasonable diligence Tanglewood
should have known of its claim. The summary
judgment on limitations was reversed.
The Tanglewood court fell into the trap identified by the Supreme Court in Altai and HECI: it
jumped directly to the question of what a reasonably
diligent investigation would have uncovered under
the facts of the case, without first analyzing the
claim categorically to determine whether the plaintiff's injury was by its nature undiscoverable. The
proper inquiry was not what this plaintiff should
have known under the circumstances, but what
plaintiffs pursuing these types of claims would
typically know in the exercise of reasonable diligence. That inquiry was a matter for legal reasoning, not for summary judgment evidence.
B. The Injury Must Be Objectively
The second prong of the two-part test is whether the injury is objectively verifiable. Prior to S.V.
v. R.V., the Court's discovery rule cases had long
struggled with the requirement for physical evidence
as verification for an injury. Compare Gaddis v.
Smith, 417 S.W.2d 577, 578 (Tex. 1967) (presence
of sponge in plaintiff's body and how it got there
were undisputable), with Robinson v. Weaver, 550
S.W.2d 18, 21-22 (Tex. 1977) (negligent diagnosis
subject to proof only by expert hindsight, and
therefore discovery rule does not apply). As explained by the Supreme Court in Robinson:
Plaintiff, to prove his cause of action,
faces the burden of proving both a mistake
in professional judgment and that such
mistake was negligent. Expert testimony
would be required. Physical evidence
generally is not available when the primary issue relevant to liability concerns
correctness of past judgment. Unlike
Gaddis v. Smith, there exists in the present
case no evidence which in-and-of-itself
establishes the negligence of some person.
What physical evidence was to the cause
of action alleged in Gaddis v. Smith, expert testimony is to the cause of action in
the present case. Even the fact of injury is
a matter of expert testimony.
550 S.W.2d at 21.
Noting this historical requirement, the Court in
S.V. v. R.V. formally recognized "objective verifiability" as a necessary element for application of
the discovery rule. An injury is objectively verifiable if the presence of injury and the producing
wrongful act cannot be disputed, and the facts upon
which liability is asserted are demonstrated by
direct, physical evidence. S.V. v. R.V., 933 S.W.2d
at 6-7. While expert testimony alone, which
amounts to a "swearing match between experts over
opinion," does not suffice, "recognized expert
opinion on a particular subject [could] be so near
consensus that, in conjunction with objective evidence," it could provide the verification required.
S.V. v. R.V., 933 S.W.2d at 5.
An interesting analysis of the objective
verifiability prong is contained in Hay v. Shell Oil
Co., 986 S.W.2d 772 (Tex. App. Corpus Christi
1999, pet. denied), which involved a dispute over
royalty interests for pooled land. In 1977, Shell
pooled 160 acres of land owned by the Hays into a
704 acre unit, comprising land owned by other
royalty owners. After obtaining the rights to production from Shell, in 1989 a subsequent operator
reduced the pooled unit to just the 160 acres owned
by the Hays. Noting the reduction in the pooled
unit, the Hays later accused Shell of pooling their
property with non-productive property, effectively
reducing their royalty payments. Because the Hays'
legal injury occurred in 1977, when Shell formed the
original pooled unit, their claims against Shell were
barred by limitations unless the discovery rule
applied. The question was whether there existed
objectively verifiable evidence that the Hays' land
had been pooled with non-productive land. In 1977,
productivity of deep formations, such as the formation on the Hays unit, could only be verified by
drilling and completing wells, and wildcatting
typically had only a "one in ten" chance of success
at the time. Based on drilling in the unit, there was
no physical evidence that the land was non-productive. The parties instead tendered only conflicting
expert affidavits which reflected that petroleum
engineering was an inexact science. Noting that the
conflicting expert affidavits represented just the type
of "swearing match" that the Supreme Court had
sought to preclude in S.V. v. R.V., the court of
appeals found that the Hays' injuries were not
"objectively verifiable" and affirmed the summary
judgment on limitations.
C. Application of the Discovery Rule
to Particular Claims.
1. Latent Occupational Disease.
Courts have found that the discovery rule bears
particular application to claims for occupational
disease. Childs v. Haussecker, 974 S.W.2d 31, 33
(Tex. 1998); Safford v. Cigna Insurance Co., 983
S.W.2d 317 (Tex. App. Fort Worth 1998, pet.
denied). In Childs, the Court noted several reasons
why cases involving latent occupational injuries or
diseases sometimes merit application of the discovery rule. Latent diseases are often inherently undiscoverable within the applicable limitations period.
974 S.W.2d at 36-37. Unlike most personal injury
cases, a person suffering from a latent disease or
injury typically does not immediately know about
the injury or its cause often because the disease or
injury does not manifest itself for long periods
following exposure to the injury-causing substance.
974 S.W.2d at 38. The Court further noted that,
even when symptoms do arise, the injury and its
etiology are hard to diagnose because of the many
other potential causes. Id. The latent nature of a
claimant's injuries caused the Court some concern:
While a diligent plaintiff who allegedly
suffers from a latent injury or disease
should be able to claim the benefit of the
discovery rule, these causes raise questions about the correct formulation and
application of that rule in latent occupational disease cases. The insidious nature
of these diseases calls for the discovery
rule to be defined and applied in a way
that requires occupationally-exposed individuals to pursue their claims diligently,
without forcing those who suffer no present impairment to file claims prematurely.
974 S.W.2d at 39.
In order accommodate these concerns, the court
held that accrual is deferred until "a plaintiff's
symptoms manifest themselves to a degree or for a
duration that would put a reasonable person on
notice that he or she suffers from some injury and he
or she knows, or in the exercise of reasonable
diligence should have known, that the injury is
likely work-related." Id. at 40. Thus, in cases
involving occupational diseases, accrual is deferred
under the discovery rule until the plaintiff knows, or
should be able to know, that the injury is causally
related to work. Under the Court's formulation of
this rule a final diagnosis is not required:
A plaintiff whose condition has not yet
been affirmatively diagnosed by a physician can have or, in the exercise of reasonable diligence could have, access to information that requires or would require a
reasonable person to conclude he likely
suffers from a work-related illness.
Id. at 42. Thus, a cause of action "should not be
deemed to accrue absent some objective verification
of a causal connection between injury and toxic
exposure, provided that verification is not occasioned by a lack of due diligence." Id.
2. Professional Malpractice.
In Willis v. Maverick, 760 S.W.2d 642, 646
(Tex. 1988), the Supreme Court adopted the discovery rule in legal malpractice cases. In so doing,
the Court held that "the statute of limitations for
legal malpractice actions does not begin to run until
the claimant discovers or should have discovered
through the exercise of reasonable care and diligence
the facts establishing the elements of his cause of
action." See also Murphy v. Campbell, 964 S.W.2d
265, 270 (Tex. 1997) ("the discovery rule may apply
to delay accrual of a cause of action complaining of
such legal advice because of the difficulty a lay
person has in knowing of the fault of the advice").
Noting similar difficulties in discovery the legal
wrong, the Supreme Court expanded its application
of the discovery rule to accountants in Murphy v.
Campbell, 964 S.W.2d at 271, holding:
The same rule should apply whether the
advisor is a lawyer or an accountant. It is
most unlikely that a client would know
that tax advice was faulty at the time he
received it. Indeed, the very reason to
seek expert advice is that tax matters are
often not within the average person's
common knowledge. We thus conclude
that accounting malpractice involving tax
advice is inherently undiscoverable.
Id. at 271.
3. Cases Involving Medical
Although it violates the open courts provision
in some instances (discussed infra at Section VI),
Tex. Rev. Civ. Stat. art. 4590i, the statute which
governs medical malpractice claims, has a strict two-year limitations period and does not recognize the
discovery rule. Martin v. Catterson, 981 S.W.2d
222 (Tex. App. Houston [1st Dist.] 1998), pet.
denied, 2 S.W.2d 249 (Tex. 1999).
D. Subsequent Discovery of Additional Injuries.
In many cases, the plaintiff may be aware of
some wrong during the limitations period, but is
incapable of knowing the full extent of the injuries
prior to the running of the limitations period. In
such situations, the discovery rule does not ordinarily apply to toll limitations, even as to the undiscovered latent injuries. This principle is most
readily discernable in automobile collision cases.
See, e.g., Honea v. Morgan Drive Away, Inc., 997
S.W.2d 705 (Tex. App. Eastland 1999, no pet.);
Stewart v. Stanley Bryan Oldsmobile-Buick-Pontiac-GMC, Inc., 883 S.W.2d 273 (Tex. App. Corpus
Christi 1994, writ denied). In Stewart, plaintiff
argued that limitations should not apply to injuries
which were discovered subsequent to the accident.
The court held that the discovery rule was inapplicable because:
The collision was sudden and dramatic;
[the plaintiff] knew the instant it occurred.
[The plaintiff] knew that she had been
injured in the collision immediately, although she did not determine the full
extent of her injuries until much later.
The injury causing event was no hidden
from her. [The plaintiff's] cause of action
accrued at the time of the collision, regardless of when she discovered the nature
and extent of her injuries.
883 S.W.2d at 275.
This long-established doctrine is known as the
"single-action rule," and rests upon the principle that
only one cause of action exists for each breach of a
legal duty. A separate cause of action does not arise
each time a separate type of damages manifests
itself. Atkins v. Crosland, 417 S.W.2d 150, 153
The perceived injustice and inefficiency of
triggering limitations on a plaintiff's claim for a
minor injury when more serious injury does not
manifest itself until much later received attention
from the Supreme Court in Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643 (Tex. 2000).
There, the Court adopted the "multiple injury" rule
for asbestos-related diseases only. Under this rule,
separate limitations cycles apply to non-malignant
injuries resulting from exposure to asbestos and to
the development of cancer as a result of such exposure. The Pustejovsky rule thus forms an exception
to the discovery rule principle that actual or constructive discovery of the nature of a legal injury
triggers limitations as to all resulting legal injuries.
IV. TOLLING OF LIMITATIONS
THROUGH FRAUDULENT CONCEALMENT.
The running of limitations may also be deferred under a theory of fraudulent concealment, which is a form of equitable estoppel. The doctrine prevents the defendant from relying on limitations as a defense. Computer Associates International, Inc. v. Altai, Inc., 918 S.W.2d 453, 455-56 (Tex. 1996); Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983). Unlike the discovery rule, which actually delays the accrual of a cause of action, fraudulent concealment tolls, or suspends, the running of the limitations period. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). Whether the doctrine applies to a particular case is question of law. Patrick v. Howard, 904 S.W.2d 941, 945 (Tex. App. Austin 1995, no writ).
A. Active Concealment.
In order to rely on fraudulent concealment, a
plaintiff must show: (1) the existence of the underlying tort; (2) the defendant's knowledge of the tort;
(3) the defendant's use of deception to conceal the
tort; and (4) the plaintiff's reasonable reliance on the
deception. Sunwest Bank v. Basil Smith Engineering
Co., 939 S.W.2d 671, 675 (Tex. App. El Paso
1996, writ denied). "The essence of fraudulent
concealment is first, actual knowledge that a wrong
has occurred, and second, a fixed purpose to conceal
the facts necessary for the plaintiff to know that he
has a cause of action that has accrued." Arabian
Shield Development Co. v. Hunt, 808 S.W.2d 577,
584 (Tex. App. Dallas 1991, writ denied). Affirmative concealment is required; absent a duty of
disclosure, mere silence on the part of the defendant
does not constitute fraudulent concealment.
B. Failure to Disclose Despite Duty to
The fraudulent concealment doctrine may also
apply when the defendant is under an affirmative
duty of disclosure, but fails to disclose the relevant
facts to the plaintiff. S.V. v. R.V., 933 S.W.2d at 4.
Because there is no general duty to disclose one's
wrongdoing, the cases to which the doctrine applies
are rare, such as those involving doctor-patient or
other fiduciary relationships. Savage v. Psychiatric
Institute, Inc., 965 S.W.2d 745, 753 (Tex. App.
Fort Worth 1998, pet. denied).
To establish a fraudulent concealment defense
based upon a duty to disclose, as opposed to active
concealment, the plaintiff must provide evidence of
specific facts demonstrating: (1) the defendant's
actual knowledge of a wrong; (2) the duty to disclose the wrong; and (3) a fixed purpose to conceal
the wrong. Mellon Serv. Co. v. Touche Ross & Co.,
17 S.W.3d 432, 436 (Tex. App. Houston [1st
Dist.] 2000, no pet.). Casey v. Methodist Hospital,
907 S.W.2d 898, 901 (Tex. App. Houston [1st
Dist.] 1995, no writ).
Unless the defendant knows of the material
facts giving rise to a cause of action, the mere failure
to disclose is insufficient. See Wilson v. Rudd, 814
S.W.2d 818, 823 (Tex. App. Houston [14th Dist.]
1991, writ denied) (no fact issue on fraudulent
concealment when plaintiff merely alleged that
doctor did not tell him of negligence and there was
no evidence that doctor believed that he was negligent); Sanchez v. Memorial Medical Center Hospital, 769 S.W.2d 656, 659 (Tex. App. Corpus
Christi 1989, no writ) (fraudulent concealment
affidavit, which stated only that hospital knew of
wrong but never told family, too conclusory regarding hospital's knowledge); Winkle v. Tullos, 917
S.W.2d 304, 312 (Tex. App. Houston [14th Dist.]
1995, writ denied) (no evidence of fraudulent
concealment where plaintiff said only that doctor did
not tell him of negligence). The mere failure to
admit a contested wrong, without affirmative evidence indicating awareness of the wrong, does not
justify the estoppel effect being employed against
the potential defendant.
Instead, the law requires extremely specific
facts showing awareness of tortious conduct in order
to prevail on fraudulent concealment. Desiga v.
Scheffey, 874 S.W.2d 244, 253 (Tex. App. Houston [14th Dist.] 1994, writ denied). A good example
of this principle is Hay v. Shell Oil Co., 986 S.W.2d
772 (Tex. App. Corpus Christi 1999, pet. denied).
In Hay, the plaintiffs alleged that Shell had fraudulently concealed from them its pooling of their
property with non-productive property. At best, the
summary judgment record contained conflicting
expert affidavits expressing opinions as to whether
Shell might have known or should have known
about the productivity of the land when it was
pooled in 1977. The record contained absolutely no
evidence as to what Shell actually knew. The court
reversed the summary judgment, holding that "[o]ne
cannot fraudulently conceal facts of which one has
no actual knowledge." 986 S.W.2d at 778 (citing
DiGrazia v. Old, 900 S.W.2d 499, 502 (Tex. App.
Texarkana 1995, no writ)).
C. Cessation of the Duty to Disclose.
The estoppel effect of fraudulent concealment
does not toll limitations indefinitely until the defendant discloses the wrongdoing. The tolling of
limitations instead ceases when the duty to disclose,
upon which the doctrine is based, also ceases. By
way of example, Texas courts have held that although a doctor-patient relationship may give rise to
a claim of fraudulent concealment based upon a duty
to disclose, the duty ends once the relationship
ceases. Savage v. Psychiatric Institute, Inc., 965
S.W.2d 745, 754 (Tex. App. Fort Worth 1998, pet.
denied) (claim of fraudulent concealment could not
toll limitations after patient was discharged);
Thames v. Dennison, 821 S.W.2d 380, 384 (Tex.
App. Austin 1991, writ denied) (claim of fraudulent concealment could not toll limitations after
patient stopped seeing doctor).
D. Actual or Constructive Discovery
of the Injury.
Limitations is tolled due to fraudulent concealment only until the party learns of "facts, conditions,
or circumstances which would cause a reasonably
prudent person to make inquiry, which, if pursued,
would lead to discovery of the concealed cause of
action." Borderlon v. Peck, 661 S.W.2d 907, 909
(Tex. 1983); see also Earle v. Ratliff, 998 S.W.2d
882, 888 (Tex. 1999).
V. TOLLING DUE TO MISNOMER AND
Aside from a possible malpractice claim, what
happens when one sues the wrong party? In some
cases, the result may be different depending on
whether the mistake is one of misnomer or misidentification.
Under a doctrine sometimes referred to as the
Hilland exception, limitations is tolled in instances
where the correct party is sued, but under an incorrect name. Continental Southern Lines, Inc. v.
Hilland, 528 S.W.2d 828 (Tex. 1975); see also
Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.
1990). In such situations, limitations is equitably
tolled because the potential defendant has notice of
the claim, and is not prejudiced by being sued after
expiration of the limitations period. Esquivel v.
Murray Guard, Inc., 992 S.W.2d 536, 541 (Tex.
App. Houston [14th Dist.] 1999, pet. denied).
Under this misnomer doctrine, a subsequent
petition naming the correct party will relate back to
the filing of the timely original petition. Enserch
Corp., 794 S.W.2d at 5. Of course, in order for the
plaintiff to take advantage of this doctrine, the
proper party must be added prior to judgment.
Bailey v. Vanscot Concrete Co., 894 S.W.2d 757
(Tex. 1995), rev'd in part on other grounds, Chilkewitz v. Hyson, 22 S.W.2d 825, 830 (Tex. 2000). In
Bailey, the plaintiff sued the wrong corporate entity,
never adding the proper party to the lawsuit. The
court refused to consider the equitable misnomer
doctrine, noting that no limitations issue was presented in the case. All parties agreed that the party
sued was the incorrect party; no other defendant had
been substituted for which limitations might have
been applicable. The court "declined to correct
Bailey's error by retroactively substituting the
correct party on his behalf." Bailey, 894 S.W.2d at
In contrast to a misnomer, a misidentification
occurs when a litigant sues an existing legal entity
which is the wrong party. Enserch v. Parker, 794
S.W.2d 2, 5 (Tex. 1990). In misidentification cases,
there generally are two viable companies which are
both operating businesses at the same time of the
alleged incident. Id. In most situations, a misidentification does not toll the running of limitations.
However, if the misidentified party is related to the
intended defendant such that the correct party is
cognizant of the suit, the defendant has not been
disadvantaged by the delay in bringing suit, and
limitations will be tolled so that the proper party
may be added. Id.; Toro v. First City Bank
Westheimer Plaza, N.A., 821 S.W.2d 633, 636 (Tex.
App. Houston [1st Dist.] 1991, no pet.). Even if
the named party and the correct party are not related,
limitations may be tolled if the correct party timely
learns of the suit. Hernandez v. Furr's Supermarkets, Inc., 924 S.W.2d 193, 198 (Tex. App. El Paso
1996, writ denied). Thus, the critical issue is
"whether the party claimed to be responsible was in
fact put on notice as to the claim being made against
it in the pending suit." Barnett v. Houston Natural
Gas Co., 617 S.W.2d 305, 306-07 (Tex. App. El
Paso 1981, writ ref'd n.r.e.).
Although focusing on estoppel, Palais Royal,
Inc. v. Gunnels, 976 S.W.2d 837 (Tex. App.
Houston [1st Dist.] 1998, pet. dism'd by agr.),
illustrates an appropriate tolling of limitations for a
misidentification. Gunnels, a construction manager,
injured himself in a fall from a ladder at a Palais
Royal retail store. In order to save money, Palais
Royal had acted as its own construction manager.
Confused by the corporate structure, Gunnels sued
Specialty Retailers, Inc. d/b/a Palais Royal, Inc., for
his injuries. Gunnels asked via interrogatories
whether Specialty Retailers had been correctly
named as a party. Palais Royal waited until two
years after the accident and amended its interrogatory answer, stating for the first time that it had been
misidentified. While there was a Specialty Retailers,
Inc., entity, it was the parent corporation of Palais
Royal, and Palais Royal was not its assumed name.
On appeal, Palais Royal argued that this misidentification did not toll limitations. Noting the deceptive
interrogatory answers, the court held that Palais
Royal was not prejudiced by the misidentification,
and that its conduct estopped it from raising limitations.
While not a tolling provision, Tex. R. Civ. P.
28 may effectively operate as one, because it allows
a plaintiff to bring suit against an individual and
thereby toll limitations against a business organization so long as there is evidence that the business
organization is doing business as the individual.
Chilkewitz v. Hyson, 22 S.W.3d 825 (Tex. 1999).
The same is true for individuals doing business as
business organizations. The correct legal name of
the actual defendant must be added before judgment.
Id. As Rule 28 is not a tolling provision, however,
it does not run afoul of Section 10.01 of Article
4590i, and consequently, operates normally in
medical malpractice cases because "[t]he proper
party is sued when that party is sued in its assumed
or common name." 22 S.W.3d at 830.
VI. STATUTORY TOLLING THEORIES.
A. Legal Disability.
In cases where the plaintiff is under a legal
disability, limitations is tolled for the period of the
disability. Tex. Civ. Prac. & Rem. Code § 16.001.
Only two types of legal disabilities are recognized in
Texas: minority (under 18 years of age) and unsound
mind. Imprisonment is no longer considered a legal
disability under Texas law. White v. Cole, 880
S.W.2d 292, 295 (Tex. App. Beaumont 1994, writ
The application of § 16.001 is restricted to
causes of action which accrue while the plaintiff is
under a legal disability. The statute expressly
excludes tolling for disabilities which arise after the
cause of action has accrued. Tex. Rev. Civ. Prac. &
Rem. Code § 16.001(d). Moreover, the statute
prohibits the tacking of successive disabilities. For
example, the tolling provision would not extend the
limitations period beyond majority for a plaintiff
who was a minor when a cause of action accrued but
later became mentally disabled.
Cases premised on derivative claims, such as
loss of parental consortium, are dependent on the
viability of the underlying cause of action; thus,
legal disability will not save a child's cause of action
if the parent's personal injury claim is barred by
limitations. Nash v. Selinko, 14 S.W.3d 315, 317
(Tex. App. Houston [14th Dist.] 1999, pet. denied); Howard v. Fiesta Texas Show Park, 980
S.W.2d 716, 719 (Tex. App. San Antonio 1998, no
pet.); but see Browning-Ferris Industries, Inc. v.
Lieck, 845 S.W.2d 926, 949 (Tex. App. Corpus
Christi 1992), rev'd on other grounds, 881 S.W.2d
288 (Tex. 1993). (Query, however, whether the
Corpus Christi court doesn't have it right: the
parental consortium claim is derivative, but accrues
in the child's favor at the moment the parent is
injured and arguably is not affected by subsequent
circumstances which defease the parent's cause of
action. Thus, as a statutory matter, limitations are
tolled during the child's minority, and as a constitutional matter, this common-law cause of action
cannot be cut off during the child's minority.)
Moreover, legal disability ends at death, so if a
child's claim has been tolled for some period prior
to that time, limitations runs from the death of the
child. Gross v. Kahanek, 3 S.W.3d 518, 521 (Tex.
B. Death of a Party.
Under Tex. Civ. Prac. & Rem. Code § 16.062,
the running of limitations is tolled for twelve months
following the death of a party who may have a cause
of action or against whom a cause of action may be
pled. If the party's estate is probated, limitations is
tolled only until an executor or administrator qualifies, but not in excess of twelve months.
The statute only suspends the running of
limitations; it should not be confused with the survival statute, codified at Tex. Civ. Prac. & Rem.
Code § 71.021. If the decedent's claims were already barred at death, they, and any derivative
claims owned by the estate, do not survive. Russell
v. Ingersoll-Rand Co. 841 S.W.2d 343, 344, 348-49
(Tex. 1992); Upton County, Texas v. Brown, 960
S.W.2d 808 (Tex. App. Dallas 1997, no writ).
Moreover, the tolling provision is not applicable to claims for medical malpractice cases under the
Medical Liability Act. Campos v. Ysleta General
Hospital, Inc., 879 S.W.2d 67 (Tex. App. El Paso
1994, writ denied); Rascoe v. Anabtawi, 730 S.W.2d
460, 461 (Tex. App. Beaumont 1987, no writ).
C. Temporary Absence from the
Tex. Civ. Prac. & Rem. Code § 16.063 suspends limitations due to a person's absence from the
state, for the entire period of the absence. The
statute was originally designed to protect domestic
creditors from individuals who enter Texas, contract
debt, depart from the state and subsequently default
on their obligations. Howard v. Fiesta Texas Show
Park, Inc., 980 S.W.2d 716 (Tex. App. San Antonio 1998, pet. denied); Wyatt v. Lowrance, 900
S.W.2d 360 (Tex. App. Houston [14th Dist.] 1995,
writ denied). Except where a nonresident enters into
a contract in Texas, the tolling provision for temporary absences does not apply to nonresidents.
Howard, 980 S.W.2d at 722; Guardia v. Kontos, 961
S.W.2d 580 (Tex. App. San Antonio 1997, no
D. The Savings Statute.
Under Texas law, the pendency of a prior suit
may in certain limited cases toll the running of the
statute of limitations. In general, the Texas savings
statute, codified at Tex. Civ. Prac. & Rem. Code
§ 16.064, tolls limitations due to a previously filed
claim when that claim is dismissed for want of
jurisdiction and the plaintiff refiles in Texas within
60 days of the dismissal. Section 16.064(a) specifically provides:
The period between the date of filing of
action in a trial court and the date of the
second filing of the same action in a different court suspends the running of the
applicable statute of limitations for the
(1) because of lack of jurisdiction in the
trial court where the action was first
filed, the action is dismissed or the
judgment is set aside or annulled in a
direct proceeding; and
(2) not later than the 60th day after the
date the dismissal or other disposition becomes final, the action is commenced in a court of proper jurisdiction.
Consistent with its express language, Texas
courts have held that the statute applies only if the
original action is dismissed for lack of jurisdiction.
Accordingly, the savings statute does not apply to
actions initially filed in one proper jurisdiction
simply because they are later filed in another.
Reeves v. Texas Department of Criminal Justice,
07-97-0027-CV, 1999 Tex. App. LEXIS 2924 (Tex.
App. Amarillo 1999, pet. denied). Where the
court's dismissal order does not dismiss the first
action for lack of jurisdiction, the savings statute has
no application. See Oram v. General American Oil
Co., 503 S.W.2d 607, 609-10 (Tex. Civ. App.
Eastland 1973, writ ref'd n.r.e.), cert. denied, 421
U.S. 981 (1975); Watson v. General Motors Corp.,
479 S.W.2d 104, 106 (Tex. Civ. App. Houston [1st
Dist.] 1972, writ ref'd n.r.e.).
In particular, the savings statute does not toll
limitations based on voluntary dismissals. See
Buerger v. Southwestern Bell Telephone Co., 982 F.
Supp. 1253, 1256 (E.D. Tex. 1997); Dalo v.
Laughlin, 636 S.W.2d 585, 589-590 (Tex. App.
San Antonio 1982, no writ). Nor does the savings
statute apply to a dismissal based on forum non conveniens, Hotvedt v. Schlumberger, Ltd. (N.V.), 942
F.2d 294 (5th Cir. 1991), or a plea in abatement,
Oram, 503 S.W.2d at 610. Essentially, if the court
had jurisdiction over the suit at the time of the
dismissal, the savings statute will not operate to toll
E. Written Acknowledgment of
Although couched as an evidentiary restriction, Tex. Civ. Prac. & Rem. Code § 16.065 provides a means to toll the running of limitations on a debt where the obligee, in writing, acknowledges the debt and makes an express promise to pay. Bright & Co. v. Holbein Family Mineral Trust, 995 S.W.2d 742, 746 (Tex. App. San Antonio 1999, pet. denied). The act of acknowledgment effectively estops the debtor from raising limitations because the promise to pay may have been meant to forestall the creditor's filing suit on the breach.
F. Relation Back of Amended or Supplemental Pleadings.
Under Tex. Civ. Prac. & Rem. Code § 16.068,
a claim or cause of action may avoid limitations by
relating back to a previously filed pleading, provided
that: (1) the previous pleading was not barred by
limitations; and (2) the amendment or
supplementation is not based on a new, distinct or
different transaction or occurrence. In effect, the
filing of a pleading tolls limitations as to other
related claims or causes of actions which may be
subsequently filed. Almazan v. United Services
Automobile Association, 840 S.W.2d 776 (Tex.
App. San Antonio 1992, writ denied). If limitations would have barred the cause of action when the
original pleading was filed, the amended cause of
action may not "relate back" to the original pleading,
even if it contained other causes of action which
survived limitations. Id. In addition, except for
cases of misnomer or misidentification, the relation-back doctrine does not apply to newly added parties
defendant. Pierson v. SMS Financial II, L.L.C., 959
S.W.2d 343 (Tex. App. Amarillo 1998, no pet.).
G. Reopening of the Limitations Period for Counterclaims.
Tex. Civ. Prac. & Rem. Code § 16.069 represents the most overlooked tolling provision for
limitations. In effect, § 16.069 revives a barred
cause of action when an opposing party raises a
claim to which the barred claim is related. MBank
Fort Worth, N.A. v. Trans Meridian, Inc., 820 F.2d
716 (5th Cir. 1987). For example, where a bank
sues over a default occurring in the twentieth year of
a promissory note, an obligor may file a counterclaim for usury or fraud related to the formation of
the contract over nineteen years earlier. However,
the window of opportunity is small; all such "revived" claims must be filed within thirty days after
the filing of the related cause of action.
VII. THE OPEN COURTS DOCTRINE.
Article 1, § 13, of the Texas Constitution, commonly known as the open courts provision, guarantees that all persons bringing well-recognized common law causes of action will not unreasonably be denied access to the courts. Trinity River Authority v. URS Consultants, Inc., 889 S.W.2d 259, 261 (Tex. 1994). To establish applicability of the open courts provision, a litigant must show that he has a cognizable common law cause of action, and that restriction of the claim is unreasonable or arbitrary when balanced against the state's purpose in barring the suit. Diaz v. Westphal, 941 S.W.2d 96, 100 (Tex. 1997).
Application of limitations violates the open
courts provision when it cuts off a cause of action
before the litigant knew or should have known the
nature of the injury or the facts giving rise to the
cause of action. Hellman v. Mateo, 772 S.W.2d 64,
66 (Tex. 1989).
A. No Reasonable Opportunity to Sue Within the Limitations Period.
In order to take advantage of the open courts
provision, the plaintiff must not have had an opportunity to discover the wrong and bring suit within
the limitations period. Voegtlin v. Perryman, 977
S.W.2d 806, 812 (Tex. App. Fort Worth 1998, no
pet.). Of course, application of this requirement
becomes problematic only when the plaintiff discovers the wrong prior to the running of the normal
limitations period. The question then becomes
whether enough time remained for the plaintiff
reasonably to investigate, prepare, and file suit after
discovery of the injury. Neagle v. Nelson, 685
S.W.2d 11, 14 (Tex. 1985); Gagnier v. Wichelhaus,
17 S.W.3d 739 (Tex. App. Houston [1st Dist.]
2000, pet. denied). Various courts have held that
discovery within "several months" of the expiration
of the applicable limitations period constitutes a
reasonable time, so as to preclude application of the
open courts doctrine. LaGesse v. PrimaCare, Inc.,
899 S.W.2d 43, 46-47 (Tex. App. Eastland 1995,
writ denied) (discovery "several months" before
expiration was sufficient time to bring suit).
B. Due Diligence Following Discovery of Injury.
Even if the plaintiff did not have a reasonable
opportunity to sue within the applicable limitations
period, the open courts provision does not toll
limitations so as to provide a full limitations period
in which to sue. Rather, being a constitutional
exception to the general rule of limitations, the open
courts doctrine provides only a "reasonable period"
after discovery in which to sue. Voegtlin v.
Perryman, 977 S.W.2d 806, 812 (Tex. App. Fort
Worth 1998, no pet.). Thus, the plaintiff must
exercise due diligence in bringing suit. Id.
While a "reasonable period" is by no means the
provision of any concrete period, some courts have
generally applied a strict one-year cut-off after
discovery. See Fiore v. HCA Health Services, Inc.,
915 S.W.2d 233, 238 (Tex. App. Fort Worth 1996,
writ denied) (delay in suit for one year not reasonable period as a matter of law); LaGesse v.
PrimaCare, Inc., 899 S.W.2d 43 (Tex. App.
Eastland 1995, writ denied) (one year delay unreasonable as a matter of law); see also Hall v. Dow
Corning Corp., 114 F.3d 73 (5th Cir. 1997) (fifteen-month delay unreasonable); Work v. Duval, 809
S.W.2d 351, 354 (Tex. App. Houston [14th Dist.]
1991, no writ) (twenty-one-month delay unreasonable).
One clear exception to this general rule is
Weiner v. Wasson, 900 S.W.2d 316, 319 (Tex.
1995). There, after finding that the strict two-year
limitations provision of the Medical Liability Act
violated the open courts provision as to a minor's
common law claims for malpractice, the Court held
that the full two-year limitations period would be
available following the plaintiff's majority.
VIII. CHOICE OF LAW.
Typically, ordinary limitations periods are
considered procedural rather than substantive law.
Accordingly, in Texas, Texas' limitations generally
apply. California v. Copus, 309 S.W.2d 227, 230
(Tex. 1958), cert. denied, 356 U.S. 967 (1958). An
exception exists, however, where an out-of-state
statute both creates the right of action and prescribes
a limitations period; in such case, the limitations
period is part of the substantive right and the statute
controls. 309 S.W.2d at 230-31; Intevep, S.A.
Research & Tech. Support Est. v. Sena, 41 S.W.3d
391, 394 (Tex. App. Dallas 2001, no pet.).
That general rule, however, has been modified by statute in some situations. For example, under Tex. Civ. Prac. & Rem. Code § 71.031(a)(3) the borrowing statute a plaintiff who is a resident of a foreign state may file suit in Texas for damages for death or personal injury caused by some act that took place outside of Texas only if they comply not only with Texas' limitations but with the limitations of the foreign statue where the act took place as well. The Supreme Court of Texas has ruled that § 71.031(a)(3) complies with both the Texas and Federal Constitutions. Owens Corning v. Carter, 997 S.W.2d 560, 571-76 (Tex.), cert. denied, 528 U.S. 1005 (1999).
Malicious Prosecution Tex. Civ. Prac. & Rem. Code § 16.002(a).
Libel Tex. Civ. Prac. & Rem. Code § 16.002(a).
Slander Tex. Civ. Prac. & Rem. Code § 16.002(a).
Trespass Tex. Civ. Prac. & Rem. Code § 16.003(a); Waddy v. City of Houston,
834 S.W.2d 97 (Tex. App. Houston [1st Dist.] 1992, writ denied).
Conversion Tex. Civ. Prac. & Rem. Code § 16.003(b); Styers v. Harris County,
838 S.W.2d 955 (Tex. App. Houston [14th Dist.] 1992, writ ref'd).
Personal Injury Tex. Civ. Prac. & Rem. Code § 16.003(a).
Wrongful Death Tex. Civ. Prac. & Rem. Code § 16.003(b); Moreno v. Sterling Drug,
Inc., 787 S.W.2d 348, 350 (Tex. 1990).
Negligent Misrepresentation Texas American Corp. v. Woodbridge Joint Venture, 809 S.W.2d
299, 302 (Tex. App. Fort Worth 1991, writ denied).
Medical Malpractice Tex. Rev. Civ. Stat. art. 4590i, § 10.01.
Deceptive Trade Practices Tex. Bus. & Com. Code § 17.565; KPMG Peat Marwick v. Harrison
Cty. Housing Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999).
Legal Malpractice Tex. Civ. Prac. & Rem. Code § 16.003(a); Apex Towing v. Tolin, 41
S.W.3d 118, 120 (Tex. 2001).
Accounting Malpractice Murphy v. Campbell, 964 S.W.2d 265 (Tex. 1997).
Civil Rights Violations Piotrowski v. City of Houston, 237 F.3d 567 (5th Cir. 2001); Li v.
University of Texas Health Science Center, 984 S.W.2d 647 (Tex.
App. Houston [14th Dist.] 1998, pet. denied).
Tortious Interference First National Bank v. Levine, 721 S.W.2d 287, 289 (Tex. 1986).
Breach of Duty of Good Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 827 (Tex.
Faith and Fair Dealing 1990).
False Imprisonment White v. Cole, 880 S.W.2d 292 (Tex. App. Beaumont 1994, writ
Civil Conspiracy Mays v. Stewart, 11 S.W.3d 440, 453 (Tex. App. Houston [14th
Dist.] 2000, pet. denied).
Intentional Infliction of
Emotional Distress Bhalli v. Methodist Hospital, 896 S.W.2d 207, 211 (Tex. App. Houston [1st Dist.] 1995, writ denied).
Insurance Code Claims Johnson & Higgins, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507
Claims Subject to a Three-Year Limitations Period
Misappropriation of Trade
Secrets Tex. Civ. Prac. & Rem. Code § 16.010(a).
Claims Subject to a Four-Year Limitations Period
Fraud (non-personal injury) Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990).
Action on Debt Tex. Civ. Prac. & Rem. Code § 16.004.
Breach of Contract for Sale
of Real Property Tex. Civ. Prac. & Rem. Code § 16.004.
Breach of Contract Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
Breach of Fiduciary Duty Tex. Civ. Prac. & Rem. Code § 16.004(a)(5); Rampart Capital Corp.
v. Egmont Corp., 18 S.W.3d 318, 321 (Tex. App. Beaumont 2000,
Indemnity Ocean Transport, Inc. v. Greycas, Inc., 878 S.W.2d 256 (Tex. App.
Corpus Christi 1994, writ denied).
Personal Injury Based
on Sexual Assault Tex. Civ. Prac. & Rem. Code § 16.0045.