Saturday, December 10, 2011

Fraudulent concealment may delay running of statute of limitations, but only so long

Estoppel effect of fraudulent concealment on assertion of limitations as an affirmative defense lasts only until discovery of the wrongdoing by the injured party/plaintiff.
A plaintiff suffers legal injury when facts come into play which would authorize seeking a judicial remedy.  Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001).  Because Texas applies the discovery rule to legal malpractice claims, a cause of action for legal malpractice accrues when the nature of the injury is discovered or should have been discovered in the exercise of reasonable care and diligence.[12]  Willis v. Maverick, 760 S.W.2d 642, 647 (Tex. 1988). 
The discovery rule applies in cases of fraud, fraudulent concealment, and in other cases where the nature of the injury is inherently undiscoverable.  Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997).  The doctrine of fraudulent concealment provides that where a defendant is under a duty to make a disclosure, but fraudulently conceals the existence of a cause of action from the party to whom it belongs, the defendant is estopped from relying on the defense of limitations until the party learns of the right of action or should have learned thereof through the exercise of reasonable diligence.  Trousdale v. Henry, 261 S.W.3d 221, 234 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). 
The estoppel effect of fraudulent concealment ends when a 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.  Id.

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