law-limitations | statute of limitations | tolling of limitations | equitable tolling | due diligence in serving defendant |
law-accrual-of-cause-of-action | statute of limitations | tolling theories | discovery rule | fraudulent concealment
AFFIRMATIVE DEFENSE OF LIMITATIONS -
RECENT DECISIONS OF THE TEXAS SUPREME COURT
Ashley v. Hawkins, No. 07-0572 (Tex. Jun. 26, 2009)(Green)(statute of limitations, no tolling when car wreck
defendant is out of state, but subject to being served there) (due diligence in securing promt service of citation
GAIL ASHLEY v. DORIS D. HAWKINS; from Montgomery County; 9th district (09-06-00359-CV, ___ SW3d ___,
[opinion in the Beaumont court of appeals] 06-07-07)
The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.
Justice Green delivered the opinion of the Court. [pdf 10 pgs.]
View Electronic Briefs in ASHLEY v. HAWKINS (Tex. 2009)
Exxon Corp. v. Miesch, No. 05-1076 (Tex. Mar. 27, 2009)(Wainwright)(plugging of oil well to prejudice future
production subsequent to dispute over royalties, false statement to Railroad Commission, fraud, statute of
limitations, oil and gas law,)
Kerlin v. Sauceda, No. 05-0653, 263 S.W.3d 920 (Tex. 2008)(Tex. Oct. 10, 2008)(subst op. by O'Neill)
(oil and gas law, statute of limitations not tolled)
Kerlin v. Sauceda, No. 05-0653 (Tex. Aug. 29, 2008)(O'Neill) (oil and gas royalties, claims time-barred)
GILBERT KERLIN, INDIVIDUALLY, GILBERT KERLIN, TRUSTEE, WINDWARD OIL & GAS CORP., AND PI
CORP. v. CONCEPCION SAUCEDA, ET AL.; from Cameron County; 13th district
(13-01-00062-CV, 164 SW3d 892, 06-09-05)
petitioners' motion to consolidate dismissed as moot
The Court reverses the court of appeals' judgment and renders judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice
Medina, Justice Green, and Justice Johnson joined.
Justice Brister delivered a concurring opinion, in which Justice Hecht, Justice Medina, and Justice Willett joined.
Unifund CCR Partners v. Weaver, No. 07-0682 (Tex. Aug. 29,2008)(per curiam)
(credit card suit, deemed admissions, objections to discovery requests, limitations defense not properly
UNIFUND CCR PARTNERS v. KENNETH F. WEAVER; from McLennan County; 10th district
(10-06-00207-CV, 231 SW3d 441, 07-11-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and renders judgment.
A limitations defense is an affirmative defense, which is in the nature of a confession and avoidance.
Tex. R. App. P. 94. As such, it must be asserted in a pleading. Tex. R. Civ. P. 45; see also In re L.A.M.
& Assocs., 975 S.W.2d 80, 84 (Tex. App.—San Antonio 1998, orig. proceeding).
O’Neil v. Ector ISD, No. 07-0084 (Tex. Mar. 28, 2008)(per curiam) (public employment, teachers,
teacher contract dispute, exhaustion of administrative remedies, limitations)
HELEN O'NEAL v. ECTOR COUNTY INDEPENDENT SCHOOL DISTRICT; from Travis County; 11th district (11-
06-00013-CV, 221 S.W.3d 286, 11-09-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court affirms the court of appeals' judgment.
COURTS OF APPEALS CASES (pet. denied)
BIELA'S GLASS AND ALUMINUM PRODUCTS, INC. AND ALERT LOCK AND KEY v. SONIA VALVERDE; from
Bexar County; 4th district (04-08-00587-CV & 04-08-00857-CV, ___ SW3d ___, 06-10-09, pet denied Oct
2009) (designation of responsible third party, timelines, limitations, res judicata)
Affirmative Defense of Limitations Waived by Failure to Plead It
Rule 94 of the Texas Rules of Civil Procedure provides, “In pleading to a preceding pleading, a party shall set
forth affirmatively . . . statute of limitations . . . and any other matter constituting an avoidance or affirmative
defense.” Tex. R. Civ. P. 94. Limitations is an affirmative defense that is waived if not pleaded. G.R.A.V.I.T.Y.
Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 544 (Tex. App.-Dallas 2005, no pet.).
09-0680 WILLIAM D. BEARD v. COMMISSION FOR LAWYER DISCIPLINE; from Dallas County; 5th district (05-
07-00428-CV, ___ SW3d ___, 03-17-09, pet denied Oct 2009)(disbarment affirmed, affirmative defense of
limitations waived by failure to plead it,
trial amendment denied as prejudicial)
Appellant argues that the mandatory nature of the language in rule 15.06, “No attorney . . . may be disciplined
for Professional Misconduct occurring more than four years before . . . the allegation . . . is brought to the
attention of the Office of Chief Disciplinary Counsel, “ makes it an absolute bar to discipline for conduct outside
the limitations period. However, courts have held other statutes of limitations containing mandatory language
could be waived. Tex. Fam. Code Ann. § 160.607(a) (Vernon 2008) (“a proceeding . . . to adjudicate the
parentage of a child . . . shall be commenced not later than the fourth anniversary of the date of the birth of the
child”); Miles v. Peacock, 229 S.W.3d 384, 387-88 (Tex. App.-Houston [1st Dist.] 2007, no pet.) (family code §
160.607(a) waived by failure to plead limitations); see also Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3)
(Vernon 2002) (“A person must bring suit on the following actions not later than four years after the day the
cause of action accrues: . . . (3) debt . . . .”); Frazier v. Havens, 102 S.W.3d 406, 411-12 (Tex. App.-Houston
[14th Dist.] 2003, no pet.) (four-year statute of limitations waived by failure to plead it). Thus, the mandatory
nature of the language does not preclude waiver.
A statute of limitations begins to run when the cause of action accrues. Tectonic Realty Inv. Co. v. CNA Lloyd's
of Tex. Ins. Co., 812 S.W.2d 647, 652 (Tex. App.- Dallas 1991, writ denied). A cause of action accrues when
facts come into existence that authorize a claimant to seek a judicial remedy. Celtic Life Ins. Co. v. Coats, 885
S.W.2d 96, 100 (Tex. 1994). A bad faith cause of action involving an insurance claim accrues on the date the
insurer denies coverage. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). This same
rule is applicable to insurance code and DTPA claims. Stevens v. State Farm Fire & Cas. Co., 929 S.W.2d
665, 671 (Tex. App.- Texarkana 1996, writ denied). Intentional infliction of emotional distress is also governed
by the two year statute of limitations. Bhalli v. Methodist Hosp., 896 S.W.2d 207, 211 (Tex. App.- Houston [1st
Dist.] 1995, writ denied). Hence, all of Childers' claims are governed by a two-year statute of limitations, and all
stem from the bad faith allegations. See generally Tex. Ins. Code Ann. 21.21 ' 16(d) (Vernon 2005), repealed
by Act of May 23, 2003, 78th Leg., R.S., ch. 1274, ' 26(a)(1), 2003 Tex. Gen. Laws 3611, 4138; Tex. Ins. Code
' 541.162 (Vernon Supp 2008); Tex. Bus. & Com. Code Ann. ' 17.565 (Vernon Supp. 2008); Tex. Civ. Prac. &
Rem. Code ' 16.003(a) (Vernon Supp. 2008).
ALLEN WALKER v. TRB BANCORP, INC.; from Collin County; 5th district (05-07-00901-CV, ___ SW3d ___, 07-
15-08, pet. denied Oct 2008)(breach of contract, limitations, fraudulent inducement)
The statute of limitations for breach of contract is four years. Tex. Civ. Prac. & Rem. Code Ann. § 16.004
(Vernon 2002); Jones v. Blume, 196 S.W.3d 440, 445 (Tex. App.-Dallas 2006, pet. denied). To win summary
judgment based on limitations, a defendant must prove as a matter of law the date the cause of action accrued.
Jones, 196 S.W.3d at 445. Thus, the question presented is whether TRB established as a matter of law that
Walker's cause of action accrued more than four years before he filed suit on August 29, 2005. Generally, a
cause of action accrues for limitations purposes when the facts come into existence that authorize the claimant
to seek a judicial remedy. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc. 962 S.W.2d 507, 514 (Tex.
1998). More specifically, a claim for breach of contract accrues when the contract is breached. Stine v. Stewart,
80 S.W.3d 586, 592 (Tex. 2002); Jones, 196 S.W.3d at 446. When the contractual obligation in question is the
duty to pay money, limitations begins to run when the payment is due. See Edlund v. Bounds, 842 S.W.2d 719,
726 (Tex. App.-Dallas 1992, writ denied) (“When a note is payable at a definite time, limitations begins to run at
the maturity of the note.”).
THE W.L. PICKENS GRANDCHILDREN'S JOINT VENTURE v. DOH OIL COMPANY, DAVID HILL AND ORVEL
HILL; from Loving County; 8th district (08‑06‑00314‑CV, ___ SW3d ___, 08‑07‑08, pet. denied Nov. 2008)(tax
sale, deed, statute of limitations, discovery rule))
WAYNE DUDDLESTEN, LTD., SUCCESSOR TO WAYNE DUDDLESTEN, INC. AND TBJ PROPERTIES, INC. v.
CYPRESS NORTHWEST ASSOCIATES, LTD.; from Harris County; 1st district (01-05-00827-CV, ___ SW3d
___, 02-21-08, pet denied Aug. 2008) (breach of contract claim, statue of limitations, breach of restrictive
covenant, summary judgment reversed)
MICHAEL A. FRENCH AND WIFE, MISTI MICHELLE FRENCH v. BRIAN JAMES GILL AND GIUSEPPE V. RICCIO
D/B/A TIGERS TRUCKING CO.; from Wood County; 6th district (06-07-00076-CV, 252 SW3d 748, 04-16-08,
pet denied Aug 2008)(limitations, no tolling)
ROBERT LEE HOOD v. WAL-MART STORES, INC., ET AL.; from Dallas County; 5th district
(05-05-01049-CV, ___ S.W.3d ___, 01-31-08, pet. denied)
appellant's request for leave of the Court to supplement all documents dismissed as moot
(limitations, previous suits that were dismissed without prejudice does not toll the running of limitation)
Appellant's brief does not contain a concise statement of the issues or points presented for review as required
by rule of appellate procedure 38.1(e). See Tex. R. App. P. 38.1(e). However, it appears from appellant's
argument that his complaint is the trial court erred in granting appellees' motion for summary judgment on
limitations. The limitations period for appellant's causes of action is two years. See Tex. Civ. Prac. & Rem. Code
Ann. § 16.003 (Vernon Supp. 2007). Accordingly, appellant had to file this suit by May 3, 2003.
Appellant first argues limitations does not bar his suit because he was diligent in serving appellees. Diligence in
service is a consideration when suit is filed before expiration of limitations but the defendant is served after the
limitations period. See Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex. 1990) (per curiam); Taylor v. Thompson, 4
S.W.3d 63, 65 (Tex. App.-Houston [1st Dist.] 1999, pet. denied). Appellant's suit, however was outside the
limitations periods when he filed this suit on October 20, 2004. Accordingly, whether appellant acted with due
diligence in serving appellees is not relevant.
Appellant also asserts the trial court erred in granting summary judgment because appellees sought a no-
evidence summary judgment on an affirmative defense. Appellant is incorrect. Appellees motion for summary
judgment “moves for summary judgment pursuant to Texas Rule of Civil Procedure 166a on all of Plaintiff's
claims.” The motion contains no allegation of no evidence.
Appellant also argues discovery was tolled by the discovery rule. The discovery rule operates to toll the running
of the period of limitations until the time a plaintiff discovers, or through the exercise of diligence should have
discovered, the nature of his injury. In this case, there is no dispute that appellant knew or should have known
the nature of his injuries at the time of the incident, May 3, 2001. Accordingly the discovery rule did not toll
Appellant asserts he timely filed suit on April 24, 2003 and that suit was dismissed without prejudice. The record
contains no evidence of these assertions. See Footnote 1 Moreover, a timely filed suit subsequently
dismissed does not generally toll limitations. See Bailey v. Gardner, 154 S.W.3d 917, 918 (Tex. App.-Dallas
2005, no pet.) (voluntary nonsuit does not toll limitations); Cronen v. City of Pasadena, 835 S.W.2d 206, 210
(Tex. App.-Houston [1st Dist.] 1992, no writ) (dismissal for want of prosecution does not toll limitations),
disapproved on other grounds by Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994). The fact that appellant
may have filed previous suits that were dismissed without prejudice does not toll the running of limitations.
We hold the trial court did not err in granting appellees' motion for summary judgment.
We affirm the trial court's judgment.
JOAN CAROL ELLIS ROBERTS v. DR. MILAS ELDON DAVIS, JR.; from Titus County; 6th district
(06-07-00024-CV, ___ SW3d ___, 11-01-07) (defamation, libel, limitations)
Joan Carol Ellis Roberts appeals from a trial in which a jury determined that her underlying claim of libel against
Dr. Milas Eldon Davis, Jr., was barred by limitations. In this case, Roberts alleged that Davis libeled her in a
letter dated April 9, 2001, this letter having been written by Davis to Roberts' immediate supervisor, George
Burns, in which he complained about Davis' job behavior and performance. Roberts alleged that Davis' letter
was much more widely published and that it contained untrue and defamatory statements about her personal
and professional behavior at the hospital.
Paradigm also argues this suit is barred by limitations. However, limitations is an affirmative defense that is
waived if not pleaded. Tex. R. Civ. P. 94; Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517
Texas Causes of Action | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
Texas Caselaw Topics Pages | Texas Opinions homepage |