law-discovery-rule | STATUTES OF LIMITATIONS | CONTRACTUAL SHORTENING OF LIMITATIONS PERIOD | DISCOVERY
DISPUTES | PRE-SUIT DISCOVERY | CHALLENGING DISCOVERY ORDERS BY MANDAMUS | DISCOVERY SANCTIONS |
THE DISCOVERY RULE |
THE DISCOVERY RULE
---> TOLLING OF RUNNING OF STATUTE OF LIMITATIONS, DEFERRAL OF ACCRUAL DATE
The discovery rule is a very narrow exception to the statute of limitations that tolls limitations when an injury
is both inherently undiscoverable and objectively verifiable. See Schneider, 147 S.W.3d at 279. The
discovery rule tolls limitations only when discovery of an injury is impossible, not when, as here, some injury
is known but the full extent of injury and cause are unknown. See id.; Mitchell Energy Corp. v. Bartlett, 958 S.
W.2d 430, 435-36 (Tex. App.-Fort Worth 1997, pet. denied); Bayou Bend Towers Council of Co-Owners v.
Manhattan Constr. Co., 866 S.W.2d 740, 743 (Tex.App.-Houston [14th Dist.] 1993, writ denied).
Generally, a cause of action accrues when a wrongful act causes an injury, regardless of when the plaintiff
learns of the injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998). This is true even if the 650*650
fact of injury is not discovered until later and even if all resulting damages have not yet occurred. S.V. v. R.
V., 933 S.W.2d 1, 4 (Tex.1996). In certain, limited circumstances, Texas courts apply the discovery rule as
an exception to the general accrual rule. Computer Assoc. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.
1994). To apply, the discovery rule requires that the injury be inherently undiscoverable and objectively
verifiable. Id. When applied, the discovery rule tolls the running of limitations until the plaintiff discovers the
injury, or acquires knowledge of facts which, in the exercise of reasonable care and diligence, would lead to
the discovery of the wrongful act and resulting injury. Li v. University of Texas Health Science Ctr. at
Houston, 984 S.W.2d 647, 652 (Tex.App.-Houston [14th Dist.] 1998, pet. denied) (citing S.V., 933 S.W.2d at
4). In cases where the discovery rule applies, accrual occurs, and limitations begin to run, when the plaintiff
knew or should have known of the wrongfully caused injury, not when the plaintiff knew of the specific nature
of each wrongful act that may have caused injury. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp.,
988 S.W.2d 746, 749 (Tex.1999). Once a plaintiff knows, or in the exercise of reasonable diligence should
have known of the injury, "the limitations clock is running, 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."
PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 93-94 (Tex.2004).
NOT IN PROBATE CASES
Generally, Texas courts have refused to apply the discovery rule to claims arising out of probate
proceedings, even in cases involving allegations of fraud. See Little v. Smith, 943 S.W.2d 414, 420 (Tex.
1997). “A person is charged with constructive notice of the actual knowledge that could have been
acquired by examining public records.” Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex. 1981). Constructive
notice creates an irrebuttable presumption of actual notice. Id. “Persons interested in an estate admitted to
probate are charged with notice of the contents of the probate records.” Id.; Little, 943 S.W.2d at 420
(“Such claims [arising out of probate proceedings] are barred by limitations because the claimant has
constructive notice of the probate proceedings.”); In re Estate of McGarr, 10 S.W.3d 373, 377 (Tex. App.—
Corpus Christi 1999, pet. denied) (“Even in probate cases involving allegations of fraud, Texas courts have
refused to apply the discovery rule because of the doctrine of constructive notice and the strong public
interest in according finality to probate proceedings.”). Thus, at the time a will is admitted to probate, a
potential contestant has constructive knowledge of the date the testator executed the will, the fact that the
contestant was not mentioned in the will, and the fact that a previously unknown will exists. See Mooney,
622 S.W.2d at 85. In this case, the statute of limitations begins to run on the date the will was admitted to
Trousdale v. Henry (Tex.App.- Houston [14th Dist.] June 24, 2008)(Fowler)
(legal malpractice, claim splitting, fractioning, applicable statute of limitations for negligence and breach of
fiduciary duty, tolling, discovery rule)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler
Before Justices Brock Yates, Fowler and Guzman
14-06-00848-CV Lenieta Wylene Trousdale v. Annette M. Henry, R. Christopher Bell and Bell & Henry, L.L.
Appeal from 129th District Court of Harris County
Trial Court Judge: Samuel Grant Dorfman
Concurring and Dissenting Opinion by Justice Guzman (legal malpractice claims should not be splintered
into different causes of action).
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