Asserting Fraudulent Concealment to Counter Affirmative Defense of Limitations (SoL)

FRAUDULENT CONCEALMENT AS COUNTER-DEFENSE TO LIMITATIONS DEFENSE A defendant is entitled to summary judgment on the affirmative defense of limitations by conclusively proving all the elements of the defense as a matter of law. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex. 2000). This requires conclusively proving the date the cause of action accrued. See Rubio, 185 S.W.3d at 846. When a defendant conclusively establishes a limitations defense and the plaintiff resists summary judgment by asserting fraudulent concealment, the plaintiff has the burden to present evidence raising a fact issue with respect to its claim. Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994). The elements of fraudulent concealment are 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. Malone v. Sewell, 168 S.W.3d 243, 252 (Tex. App.-Fort Worth 2005, pet. denied). SOURCE: 09-08-00433-CV (8/27/09) (Beaumont Court of Appeals)