Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Wednesday, September 9, 2009

Fraudulent Concealment as SoL Tolling Theory

Pleading and Proving Fraudulent Concealment to Avoid Limitations Although similar in effect to the discovery rule, the fraudulent-concealment doctrine is an affirmative defense to limitations that resembles equitable estoppel. Trousdale v. Henry, 261 S.W.3d 221, 235 (Tex. App.- Houston [14th Dist.] 2008, rule 53.7(f) motion granted); Autry v. Dearman, 933 S.W.2d 182, 192 (Tex. App.- Houston [14th Dist.] 1996, writ denied). This doctrine estops a defendant from relying on the defense of limitations if the defendant was under a duty to make a disclosure but fraudulently concealed the existence of a cause of action from the party to whom it belongs. Ponder v. Brice & Mankoff, 889 S.W.2d 637, 645 (Tex. App.- Houston [14th Dist.] 1994, writ denied). To prove fraudulent concealment, the plaintiff must demonstrate that the defendant had (1) actual knowledge that a wrong occurred, (2) a duty to disclose the wrong, and (3) a fixed purpose to conceal the wrong. McMahan v. Greenwood, 108 S.W.3d 467, 493 (Tex. App.- Houston [14th Dist.] 2003, pet. denied). The estoppel effect of fraudulent concealment ends when a party learns of facts, conditions, or circumstances that would cause a reasonably prudent person to make inquiry which, if pursued, would lead to the discovery of the concealed cause of action. Ponder, 889 S.W.2d at 645. This is the same standard that applies to the discovery rule. Trousdale, 261 S.W.3d at 235. SOURCE: Seureau v. Exxon Mobil Corp (Tex.App.- Houston [14th Dist.] Oct. 16, 2008) SEE ALSO: the discovery rule as a counterdefense to limitations, equitable tolling theories

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