Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Friday, March 29, 2013

DTPA claim has 2-year SoL, tolling of limitations and fraudulement concealment exceptions for such claims are specified by statute


DTPA HAS TWO-YEAR LIMITATIONS PERIOD; STATUTE ALSO CODIFIES THE DISCOVERY RULE AND FRAUDULENT CONCEALMENT EXCEPTIONS. BUT THE LATTER IS LESS GENEROUS THAN THE COMMON-LAW DOCTRINE WHICH IT RENDERS UNAVAILABLE FOR DTPA CLAIMS  

The DTPA provides that suits under the chapter “must be commenced within two years after the date on which the false, misleading, or deceptive act or practice occurred or within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice.” TEX. BUS. & COM. CODE § 17.565.

In essence, the Legislature codified the discovery rule for DTPA claims. See KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999). We have explained that, “[o]nce a claimant learns of a wrongful injury, the statute of limitations begins to run even if the claimant does not yet know ‘the specific cause of the injury; the party responsible for it; the full extent of it; or the chances of avoiding it.’” Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207 (Tex. 2011) (quoting PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79, 93 (Tex. 2004)); see also KPMG, 988 S.W.2d at 749 (holding that “accrual occurs when the plaintiff knew or should have known of the wrongfully caused injury,” not when the plaintiff knows “the specific nature of each wrongful act that may have caused the injury”).

Absent the application of an equitable tolling doctrine, the evidence conclusively established that [Consumer-Plaintiff]’s DTPA claims are time barred because she brought them more than two years after discovering her injury. See KPMG, 988 S.W.2d at 750; TEX. BUS. & COM. CODE § 17.565.

SOURCE: TEXAS SUPREME COURT – No. 11-0311 - 3/29/2013  (Gonzales v. Olshan)

[Consumer-Plaintiff] contends that Olshan engaged in fraudulent concealment, making her claim timely. We disagree. The doctrine of fraudulent concealment tolls limitations “because a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run.” S.V. v. R.V., 933 S.W.2d 1, 6 (Tex. 1996). The DTPA establishes a 180-day limit on tolling for fraudulent concealment. TEX. BUS. & COM. CODE § 17.565 (providing that limitations “may be extended for a period of 180 days if the plaintiff proves that failure timely to commence the action was caused by the defendant’s knowingly engaging in conduct solely calculated to induce the plaintiff to refrain from or postpone the commencement of the action”). Even if limitations were tolled for 180 days on [Consumer-Plaintiff]’s DTPA claims, they would still have been filed at least two months late.

[Consumer-Plaintiff] also argues that the common-law doctrine of fraudulent concealment tolls limitations for DTPA claims and is not limited to 180 days as required by the DTPA limitations statute. We have previously rejected a similar argument. In Underkofler v. Vanasek, the plaintiff brought common-law and DTPA claims for legal malpractice against his law firm. 53 S.W.3d 343, 345 (Tex. 2001). We held that the common-law rule tolling limitations for legal malpractice claims until the underlying litigation concluded does not apply to DTPA claims. Id. at 346. We pronounced that the Legislature crafted only two exceptions to the rule that DTPA limitations begin to run when the injury occurs: the discovery rule and the fraudulent concealment rule (both specified in section 17.565 of the Business and Commerce Code). Id. at 346. Just as section 17.565 forecloses the application of the common-law tolling rule to legal malpractice claims under the DTPA, it forecloses the application of the common-law doctrine of fraudulent concealment to DTPA claims. 
  
The Legislature could have incorporated the common-law doctrine of fraudulent concealment into the DTPA’s limitations provision. Instead, it only incorporated the discovery rule and a version of the fraudulent concealment doctrine limited to 180 days, and “we will not rewrite the statute to add . . . a third” exception. Id. The common-law doctrine of fraudulent concealment does not apply to [Consumer-Plaintiff]’s DTPA claim, and it is time barred.
  
SOURCE: TEXAS SUPREME COURT – No. 11-0311- 3/29/2013 (Gonzales v. Olshan)

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