Res judicata as affirmative defense and bar to re-litigation of claims

THE CONCEPT OF RES JUDICATA AND THE LEGAL EFFECT WHEN IT APPLIES "Res judicata precludes relitigation of claims that have been finally adjudicated, or that arise out of the same subject matter and that could have been litigated in the prior action." Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). HOW TO ESTABLISH THE AFFIRMATIVE DEFENSE OF RES JUDICATA To prove res judicata, a party must establish: (1) a prior final judgment on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a subsequent action based on the same claims as were raised or could have been raised in the first action. Id. PARTY STATUS OR IN PRIVITY WITH A PARTY IN THE PRIOR SUIT As a general rule, people are not bound by a judgment in a suit to which they were not parties. Id. Josephina does not contend that Jesus and Norma were parties to the prior divorce suit but rather that they were in privity with Juan and, therefore, are bound by the trial court's judgment in the prior suit. WHEN DOES PRIVITY APPLY? The Texas Supreme Court has said that people can be in privity in three ways: (1) by controlling the action even if they are not parties to it; (2) by having their interests represented by a party to the action; or (3) by acting as "successors in interest, deriving their claims through a party to the prior action." Id. at 653. PRIVITY DEFINED "Privity connotes those who are in law so connected with a party to a judgment as to have such an identity of interest that the party to the judgment represented the same legal right." Maxson v. Travis Co. Rent Account, 21 S.W.3d 311, 316 (Tex. App.--Austin 1999, pet. dism'd). SOURCE: 04-08-00394-CV (7/29/09) (San Antonio Court of Appeals)

Breach of Fiduciary Duty: The Damages Element

Establishing Breach of Fiduciary Duty

Generally, to recover for the breach of a fiduciary duty, a plaintiff must show: 1) the existence of a fiduciary duty, 2) a breach of the duty, 3) causation, and 4) damages. See Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503, 508 (Tex. App.-Houston [1st Dist.] 2003, no pet.). When, however, the plaintiff seeks fee restitution or benefit disgorgement, he need not prove actual damages. Burrow v. Arce, 997 S.W.2d 229, 240 (Tex. 1999); Alavi v. MCI Worldcom Network Services, Inc., 2007 WL 274565, at *3 (Tex. App.-Beaumont, Feb. 1, 2007, pet. denied). Because Richard's claim for breach of fiduciary duty sought damages as his remedy, he was required to prove them. See Alavi, 2007 WL 274565, at *3; Lee v. Lee, 47 S.W.3d 767, 780-81 (Tex. App.-Houston [14th Dist.] 2001, pet. denied); Longaker v. Evans, 32 S.W.3d 725, 733 n.2 (Tex. App.-San Antonio 2000, pet. withdrawn).

ABSENCE OF EVIDENCE ON DAMAGES PROVED FATAL TO CLAIM

Cynthia's no-evidence motion asserted there was no evidence that: 1) she owed a fiduciary duty to Richard, or 2) that damages resulted from the alleged breach. Richard's response contended that a DTA creates a fiduciary relationship by its "very nature," that such beneficiaries typically are unaware of delinquencies until foreclosure proceedings have begun, that beneficiaries often (as in his case) do not have adequate funds to bring the note current, and that the unavoidable foreclosure results in a "major hit" on the beneficiary's credit. Richard further argued that he did not have to prove damages to recover on his breach of fiduciary claim. On appeal, Richard maintains this Court should determine whether a DTA creates a fiduciary duty. We need not reach the issue concerning whether Cynthia owed Richard a duty. Even if we assumed that Cynthia owed Richard a fiduciary duty, which she disputes, Richard is required to have presented evidence raising a genuine fact issue on his damages. See Grant, 73 S.W.3d 215. Because Richard failed to present any evidence proving that he had been damaged, the trial court did not err in granting summary judgment to Cynthia on Richard's breach-of-fiduciary-duty claim. We overrule issue two. Having overruled both of Richard's issues, we affirm the trial court's judgment.

SOURCE: 07-08-08833 CV (7/16/09)

The Discovery Rule: When does it apply?

THE DISCOVERY RULE: WHEN CAN IT BE INVOKED TO GOOD EFFECT TO AVOID LIMITATIONS BAR ?

"The discovery rule has been applied in limited categories of cases to defer accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to a cause of action." HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998). The application of the discovery rule is generally limited to those cases where the nature of the injury is inherently undiscoverable and the evidence of the injury is objectively verifiable. Id. The applicability of the discovery rule is determined categorically, i.e., not based on whether the particular injury in the case at hand may not have been discovered but whether the injury is of a type that generally is discoverable by the exercise of reasonable diligence. Id.

INHERENTLY UNDISCOVERABLE INJURY & EXISTENCE OF FIDUCIARY DUTY 

A variation to the inherently undiscoverable element arises when applying the discovery rule to a fiduciary relationship. Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996); see also S.V. v. R.V. , 933 S.W.2d 1, 8 (Tex. 1996). In the fiduciary context, "a person to whom a fiduciary duty is owed is either unable to inquire into the fiduciary's actions or unaware of the need to do so." S V., 933 S.W.2d at 8. When a trustee breaches its duty to a beneficiary, the nature of the injury is considered inherently undiscoverable because of the fiduciary nature of the relationship. See id. However, the person owed a fiduciary relationship still must exercise reasonable diligence "when the fact of misconduct becomes [so] apparent it can no longer be ignored." (1) Id.; see also Computer Assocs. Int'l, 918 S.W.2d at 456; Slay v. Burnett Trust, 187 S.W.2d 377, 394 (Tex. 1945); G. Prop. Mgmt., Ltd. v. Multivest Fin. Servs. of Tex., Inc., 219 S.W.3d 37, 48-49 (Tex. App.--San Antonio 2006, no pet.).

FIDUCIARY DUTY CONTEXT

Because Jones owed fiduciary responsibilities to Polk Mechanical, the inherently undiscoverable requirement for applying the discovery rule is satisfied. See S V., 933 S.W.2d at 8. Moreover, the injury in this case is objectively verifiable as it can be objectively established through bank records and cancelled checks. See HECI Exploration Co., 982 S.W.2d at 886. Accordingly, we hold the discovery rule applied to Polk Mechanical's claim against Jones, and Jones was required to conclusively negate its application to be entitled to summary judgment. See Pustejovsky, 35 S.W.3d at 646.

NEGATING THE DISCOVERY RULE 

To conclusively negate the discovery rule, Jones was required to prove as a matter of law that there was no genuine issue of fact about when Polk Mechanical discovered or should have discovered the nature of the injury. See Potter, 137 S.W.3d at 704. Inquiries involving the discovery rule usually entail questions for the trier of fact because when a plaintiff knew or should have known of an injury is generally a fact question. Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998); Cadle Co. v. Wilson, 136 S.W.3d 345, 352 (Tex. App.--Austin 2004, no pet.). However, if reasonable minds could not differ about the conclusion to be drawn from the facts in the record, the start of the limitations period may be determined as a matter of law. Childs, 974 S.W.2d at 44; Cadle Co., 136 S.W.3d at 352; Zacharie v. U.S. Nat. Resources, Inc., 94 S.W.3d 748, 753 (Tex. App.--San Antonio 2002, no pet.).

 SOURCE: 04-08-00509-CV (7/1/09) (San Antonio Court of Appeals)

Lawsuit involving a trust: Statute of Limitations and Accrual

Civil Actions involving Trusts: Statute of Limitations and the Discovery Rule

A suit involving a trust is governed by the four-year statute of limitations. Hicks v. Hoover, 422 S.W.2d 613, 614 (Tex. Civ. App.--Waco 1967, writ ref'd n.r.e.). The statute of limitations begins to run when the all assets have been distributed. See In re Estate of McGarr, 10 S.W.3d 373, 376 (Tex. App.--Corpus Christi 1999, pet. denied). The discovery rule, however, tolls the running of the statute of limitations until the plaintiff discovers or should have discovered the nature of the injury. Houston Endowment, Inc. v. Atlantic Richfield Co., 972 S.W.2d 156, 159 (Tex. App.--Houston [14th Dist.] 1998, no pet.). In order for the discovery rule to apply, the injury must be inherently undiscoverable and objectively verifiable. Id.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-08-00601-CV (7/8/09)

Successful Bill of Review entails retrial of claim(s) on which underlying judgment was based

   
BILL OF REVIEW DEFINED - PROCEDURE EXPLAINED

“A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment, which is no longer appealable or subject to motion for new trial.” Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979). The judgment may be set aside “for sufficient cause.” Tex. R. Civ. P. 329b(f); Baker, 582 S.W.2d at 406. The complainant files a petition “to invoke the equitable powers of the court.” Baker, 582 S.W.2d at 408; In re K.M.S., 68 S.W.3d 61, 66 (Tex. App.—Dallas 2001), pet. denied, 91 S.W.3d 331 (Tex. 2002) (per curiam).

ELEMENTS OF PROOF FOR BILL OF REVIEW TO VACATE PRIOR JUDGMENT

Generally, the bill of review complainant must prove “‘(1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own.’” Baker, 582 S.W.2d at 406–07 (quoting Alexander v. Hagedorn, 148 Tex. 565, 568–69, 226 S.W.2d 996, 998 (1950)).

EFFECT OF TRIAL COURT'S GRANT OF THE RELIEF SOUGHT IN A BILL-OF- REVIEW PROCEEDING 
 
If the complainant establishes prima facie proof of a meritorious defense, the court conducts a trial at which the merits of the underlying issue are effectively relitigated. Caldwell v. Barnes, 154 S.W.3d 93, 98 (Tex. 2004); Baker, 582 S.W.2d at 409. During the bill of review trial, “the parties . . . revert to their original status as plaintiff and defendant with the burden on the original plaintiff to prove his or her case.” Caldwell, 154 S.W.3d at 98; accord Baker, 582 S.W.2d at 407–08. The bill of review defendant—the original plaintiff—must prove, and may offer evidence to support, “his original cause of action.” Meece v. Moerbe, 631 S.W.2d 729, 729 (Tex. 1982) (citing Baker, 582 S.W.2d at 409). At the end of the proceeding, if the fact-finder decides the complainant (the original defendant) has proved his case to set aside the judgment, the trial court may vacate the prior judgment. See Baker, 582 S.W.2d at 409. And if the bill of review defendant (the plaintiff in the original proceeding) proves his original case, the trial court may “substitute a new judgment which properly adjudicates the entire controversy.” In re J.B.A., 127 S.W.3d 850, 851 (Tex. App.—Fort Worth 2004, no pet.); cf. Jordan v. Jordan, 907 S.W.2d 471, 472 (Tex. 1995) (per curiam) (citing Tesoro Petrol. v. Smith, 796 S.W.2d 705, 705 (Tex. 1990) (per curiam)).

SOURCE: 04-09-00040-CV (8/31/09) (San Antonio Court of Appeals)

EQUITABLE RELIEF: What is a Bill of Review in Texas Courts?

  
A Bill of Review is not exactly a substantive cause of action, but nevertheless a means by which a court may grant EQUITABLE RELIEF (setting aside a default judgment that is no longer appealable). The Bill of Review, and its elements, thus fit within the scope of this blawg. 

THE NATURE OF A BILL OF REVIEW AND REQUIREMENTS FOR A SUCCESSFUL PETITION IN A BILL-OF-REVIEW SUIT: 
 
A bill of review is an independent equitable proceeding brought by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to a challenge by a motion for new trial. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam).
 
ELEMENTS OF BILL OF REVIEW

To prevail, a bill of review plaintiff must prove: (1) a meritorious defense to the cause of action upon which the judgment is based, (2) which he or she was prevented from making by the fraud, accident, or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on his or her own part. Caldwell, 154 S.W.3d at 96; Baker v. Goldsmith, 582 S.W.2d 404, 406-07 (Tex. 1979).
 
Additionally, bill of review relief is available only if a party has exercised due diligence in pursuing all adequate legal remedies. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999). This due diligence requirement is distinct from the three bill of review elements and must be established before a complainant is entitled to seek bill of review relief. Narvaez, 127 S.W.3d at 321. “The inquiry traditionally used to determine whether a party has been diligent is whether the litigant and his counsel used such care as that which prudent and careful men would ordinarily use in their own cases of equal importance.” In the Interest of A.L.H.C., 49 S.W.3d 911, 916 (Tex. App.—Dallas 2001, pet. denied). 
 
SOURCE: 04-09-00198-CV (9/23/09) (San Antonio Court of Appeals) (trial court's order granting bill of review reversed because petitioner did not exercise available remedies, i.e., direct appeal).

Default on Installment Payment Plan: SoL and accrual of claim for breach of a contract that requires payments at regular intervals

    
ACCRUAL OF DEBT CLAIM WHEN CONTRACT REQUIRES PERIODIC PAYMENTS: EACH MISSED PAYMENT DATE TRIGGERS RUNNING OF LIMITATIONS SEPARATELY
 
A four-year statute of limitations applies to contract actions. Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (Vernon 2002). A breach of contract claim accrues at the time of breach. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). When recovery is sought on an obligation payable in installments, the statute of limitations runs against each installment from the time it becomes due. Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex.App.-Houston [1st Dist.] 1984, writ ref'd n.r.e.). Thus, a suit for the breach of a contract requiring payment in periodic installments may include all payments due within the four-year statute of limitations period, even if the initial breach was beyond the limitations period. Recovery of any payment more than four years overdue is barred. Hollander v. Capon, 853 S.W.2d 723, 726-27 (Tex.App.-Houston [1st Dist.] 1993, writ denied).

RELATED TERMS: Retail Installment Contract, financing, closed-ended consumer loan requiring monthly payments in equal amounts, monthly payment-due dates, missing monthly loan repayment, payment schedule 

SOURCE: 05-08-00458-CV (9/18/09) (Dallas Court of Appeals)

Fraud Cause of Action under Texas Law

  
WHAT ARE THE ELEMENTS OF FRAUD?

"The elements of fraud are a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of the truth, which was intended to be acted upon, which was relied upon, and which caused injury." DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990).
  
HOW DOES FRAUD DIFFER FROM FAILURE TO PERFORM CONTRACTUAL 
OBLIGATION?
 
A promise to do an act in the future is actionable fraud when made with the intention, design and purpose of deceiving, and with no intention of performing the act. See Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986).

SOURCE: 09-08-00296-CV (8/27/09)

The essential elements of his claim of fraud against the [defendants] were: (1) the [defendants] made a false representation to [plaintiff]; (2) the representation was material; (3) when the [defendants] made the representation, they knew the representation was false; (4) the [defendants] made the representation with the intent that [plaintiff] act on it; (5) [Plaintiff] relied on the representation; and (6) the representation caused [plaintiff] injury. Ernst & Young v. Pacific Mut. Life. Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).

SOURCE: 07-08-0213-CV (9/11/09)

Proving a conversion claim in Texas (as to personal property)

HOW DO YOU ESTABLISH THE ELEMENTS OF TEXAS COMMON-LAW CONVERSION CLAIM?

 "To prove a claim for personal property-conversion, a plaintiff must show that: (1) the plaintiff owned or legally possessed the property or was entitled to its possession; (2) the defendant unlawfully and without authorization assumed and exercised dominion and control over the property to the exclusion of, or inconsistent with, the plaintiff's ownership rights; (3) the plaintiff demanded the property's return; and (4) the defendant refused to return it." Small v. Small, 216 S.W.3d 872, 877 (Tex. App.-Beaumont 2007, pet. denied). ). SOURCE: 09-08-00433-CV (8/27/09) (Beaumont Court of Appeals)

RELATED CAUSE OF ACTION: STATUTORY CAUSES OF ACTION FOR CIVIL THEFT: TEXAS THEFT LIABILITY ACT

Illegal Contract Defense

ILLEGALITY AS AFFIRMATIVE DEFENSE TO BREACH-OF-CONTRACT CLAIM The validity of a contract is generally a question of law. Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 678 (Tex. App.--Houston [1st Dist.] 1996, no writ). ILLEGAL CONTRACT DEFINED - VOID CONTRACTS An illegal contract is one in which the parties undertake what the law forbids. Franklin v. Jackson, 847 S.W.2d 306, 309 (Tex.App.--El Paso 1992, writ denied). A contract to do a thing which cannot be performed without a violation of the law is void. Id. Because the contract violates the law, it imposes no legal obligation on the parties. Miller v. Long-Bell Lumber Co., 148 Tex. 160, 222 S.W.2d 244, 246 (Tex. 1949); Franklin, 847 S.W.2d at 309. However, a contract which could have been performed in a legal manner will not be declared void simply because it may have been performed in an illegal manner. Franklin, 847 S.W.2d at 309, citing Lewis v. Davis, 145 Tex. 468, 199 S.W.2d 146, 148-49 (1947); Wade v. Jones, 526 S.W.2d 160, 162-63 (Tex.Civ.App.--Dallas 1975, no writ). PRESUMPTION OF LEGALITY - BURDEN OF PROOF TO SHOW ILLEGALITY The law presumes that contracts are legal, and the burden to prove illegality is on the party asserting it, in this case, Appellants. See Franklin, 847 S.W.2d at 310. Unless the face of the contract shows it is illegal, the party asserting illegality must present evidence demonstrating the illegality before a court may declare the contract void. See Lewis, 199 S.W.2d at 149; Franklin, 847 S.W.2d at 310. SOURCE: 08-07-00071-CV (7/29/09)

What is required to win a breach of contract case?

PROVING AND COLLECTING DAMAGES FOR BREACH OF CONTRACT To prevail on his breach of contract claim, [Plaintiff] was required to prove: (1) the existence of a valid contract; (2) performance or tendered performance by [Plaintiff]; (3) breach of contract by the [Defendants]; and (4) damages sustained as a result of the breach. Paragon General Contractors, Inc. v. Larco Const., Inc., 227 S.W.3d 876, 882 (Tex.App.–Dallas 2007, no pet.); Valero Marketing & Supply Co. v. Kalama Int’l, 51 S.W.3d 345, 351 (Tex.App.–Houston [14th Dist.] 2006, pet. denied). Conner’s response does not point to evidence of any of these elements. SOURCE: 07-08-0213-CV (9/11/09)

The Parol Evidence Rule: Not just a rule about admissibility of testimony, extraneous evidence

THE NATURE OF THE PAROL (NOT PAROLE) EVIDENCE RULE The parol evidence rule is a rule of substantive contract law, not evidence. Hubacek v. Ennis State Bank, 159 Tex. 166, 317 S.W.2d 30, 31 (1958); DeClaire v. G & B McIntosh Family Limited Partnership, 260 S.W.3d 34, 45 (Tex.App.--Houston [1st Dist.] 2008, no pet. h.). STANDARD OF REVIEW ON APPEAL We review parol evidence questions de novo, as questions of law. DeClaire, 260 S.W.3d at 45. PAROL EVIDENCE AND INTERGRATION OR MERGER CLAUSE IN CONTRACT When the parties have concluded a valid, integrated agreement, the parol evidence rule precludes enforcement of a prior or contemporaneous inconsistent agreement. Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 796 (Tex.App.--Houston [1st Dist.] 2008, pet. filed); ISG State Operations, Inc. v. National Heritage Insurance Company, 234 S.W.3d 711, 719 (Tex.App.--Eastland 2007, pet. denied). The execution of a written contract presumes that all prior negotiations and agreements relating to the transaction have been merged into the written contract. Edascio, 264 S.W.3d at 796; ISG State Operations, 234 S.W.3d at 719. Consequently, the agreement will be enforced as written and cannot be added to, varied, or contradicted by parol evidence. Edascio, 264 S.W.3d at 796; ISG State Operations, 234 S.W.3d at 719. The parol evidence rule is particularly applicable when the written contract contains a recital that it contains the entire agreement between the parties or a similarly-worded merger provision. Edascio, 264 S.W.3d at 796. Evidence that violates the rule is incompetent and without probative force, and cannot properly be given legal effect. Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 859 (Tex.App.--Dallas 2008, no pet.). Parol evidence may be admissible to show collateral, contemporaneous agreements that are consistent with the underlying agreement. Gary E. Patterson & Associates, P.C. v. Holub, 264 S.W.3d 180, 197 (Tex.App.--Houston [1st Dist.] 2008, pet. denied); DeClaire, 260 S.W.3d at 45. But this exception does not permit parol evidence that varies or contradicts either the express terms or the implied terms of the written agreement. Gary E. Patterson, 264 S.W.3d at 197; DeClaire, 260 S.W.3d at 45. A collateral agreement is one the parties might naturally make separately, i.e., one not ordinarily expected to be embodied in, or integrated with the written agreement and not so clearly connected with the principal transaction as to be part and parcel of it. Garner, 244 S.W.3d at 859. An agreement is integrated if the parties intended a writing to be a final and complete expression of agreed terms. Morgan Buildings and Spas, Inc. v. Humane Society of Southeast Texas, 249 S.W.3d 480, 486 (Tex.App.--Beaumont 2008, no pet.). The inclusion of a merger or integration clause does not conclusively establish that the written contract is fully integrated. Id. A fully integrated written agreement is a final and complete expression of all the terms agreed upon by the parties. Id. A partially integrated agreement is a final and complete expression of all the terms addressed in that written agreement, but is not a final and complete expression of all the terms the parties have agreed upon. Id. A court considers the surrounding circumstances in determining whether, and to what degree, an agreement is integrated. Id. SOURCE OF ALL SNIPPETS: 08-07-00071-CV (7/29/09)

The Discovery Rule as a limitations tolling tool for breach of fiduciary duty claim in Texas

  
SOL FOR BREACH OF FIDUCIARY DUTY & DISCOVERY RULE

The statute of limitations for a claim for breach of fiduciary duty is four years from the day the cause of action accrued. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(5) (Vernon 2002). The discovery rule defers the accrual of a cause of action until the plaintiff knows, or by exercising reasonable diligence, should know of the facts giving rise to the claim. Barker v. Eckman, 213 S.W.3d 306, 311-12 (Tex. 2006).
 
WHEN CAN THE DISCOVERY RULE BE INVOKED? 
 
For the discovery rule to apply, the injury must be inherently undiscoverable and objectively verifiable. Id. at 312; Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006). Injuries that arise from a breach of fiduciary duty are generally considered inherently undiscoverable. S.V. v. R.V., 933 S.W.2d 1, 8 (Tex. 1996); Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996). However, once the fiduciary's misconduct becomes apparent, the claimant cannot ignore it, regardless of the fiduciary nature of the relationship. S.V., 933 S.W.2d at 8; see also Computer Assocs., 918 S.W.2d at 456.
 
SOURCE: 09-08-00398-CV (7/16/09) (Beaumont Court of Appeals)
 

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)