law-limitations | SoL | limitations-tolling of SoL | discovery rule | fraudulent concealment | date claim accrued | SoL law | statute of
limitations time-barred suits | summary judgment based on limitations | tolling theories | discovery rule |
A limitations defense is an affirmative defense, which is in the nature of a confession and avoidance.
TEX.R. CIV. 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). Unifund CCR Partners
v. Weaver, 262 SW 3d 796 (Tex. 2008).
Plaintiffs must bring a suit for personal injuries within two years from the time the claim accrued.
See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003. “The mere filing of a suit will not interrupt or toll
the statute of limitations: a plaintiff must exercise reasonable diligence in procuring the issuance and
service of citation in order to interrupt the statute.” Butler v. Ross, 836 S.W.2d 833, 835 (Tex. App.—
Houston [1st Dist.] 1992, no pet). Once the defendant pleads limitations and the defendant shows that
service was effected after limitations, the burden shifts to the plaintiff to explain the delay. Murray v.
San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990). If the plaintiff demonstrates that he or she
exercised due diligence in effecting service of process, the date of service relates back to the date of
the filing of the suit. Gant v DeLeon, 786 S.W.2d 259, 260 (Tex. 1990); Zale Corp. v. Rosenbaum, 520
S.W.2d 889, 890 (Tex. 1975).
SJ Based on Affirmative Defense of Limitations
(claim time-barred under applicable statute of limitations)
A party moving for summary judgment on a statute of limitations affirmative defense must prove conclusively
that defense's elements. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). If the movant establishes that the
statute of limitations bars the action, the non-movant must then adduce summary judgment proof raising a fact
issue in avoidance of the statute of limitations. Diversicare Gen. Partners, Inc. v. Rubio, 185 S.W.3d 842, 846
(Tex. 2005). Financial Freedom Senior Funding Corp. v. Horrocks (Tex.App.- Houston [1st Dist.] Jul. 21, 2009)
(Anderson) (real estate litigation, probate law, suit to quiet title, declaratory judgment, demand note, life estate,
reverse mortgages, statute of limitations for foreclosure of lien in real property, deed of trust)
AFFIRMED: Opinion by Justice Anderson
Before Chief Justice Hedges, Justices Anderson and Seymore
14-08-00109-CV Financial Freedom Senior Funding Corp v. Michael L. Horrocks, Administrator of Estate of
Mary Edythe Mullane, Deceased
Appeal from Probate Court No 4 of Harris County
Trial Court Judge: WM CAMERON MCCULLOCH
No Tolling of SoL Base on Defendant's Short Absences from State
Zavadil v. Safeco Ins. Co. of Illinois (Tex.App.- Houston [14th Dist.] Feb. 23, 2010)(Mirabal)
(tolling of limitations based on defendant's absence from state, no SoL tolling based on brief absences)
REVERSED AND RENDERED: Opinion by Senior Justice Mirabal
Before Chief Justice Hedges, Justices Anderson and Mirabal
14-09-00568-CV Jessica Zavadil v. Safeco Insurance Company of Ilinois
Appeal from County Civil Court at Law No 1 of Harris County
Trial Court Judge: R. Jack Cagle
Breach of Contract
The statute of limitations for breach-of-contract actions is four years from the date of accrual. See Tex. Civ.
Prac. & Rem. Code Ann. §16.051 (Vernon 2008); Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). It is well-
settled that an action for breach of contract accrues immediately upon breach. Barker v. Eckman, 213 S.W.3d
306, 311 (Tex. 2006); Stine, 80 S.W.3d at 592. A breach of contract occurs when a party fails or refuses to do
something he has promised to do. Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. App.- Houston [14th Dist.] 2006,
pet. denied); Townewest Homeowners Ass'n, Inc. v. Warner Commc'n Inc., 826 S.W.2d 638, 640 (Tex. App.-
Houston [14th Dist.] 1992, no writ).
Seureau v. Exxon Mobil Corp (Tex.App.- Houston [14th Dist.] Oct. 16, 2008)(Brown)
Accrual
A defendant who seeks summary judgment on the basis of limitations must conclusively prove when the
plaintiff's cause of action accrued. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d
746, 748 (Tex. 1999). “Accrual” refers to the date when a limitations period begins to run. See XCO Prod. Co.
v. Jamison, 194 S.W.3d 622, 634 (Tex. App.- Houston [14th Dist.] 2006, pet. denied). The date that an action
accrues is a question of law. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990).
Seureau v. Exxon Mobil Corp (Tex.App.- Houston [14th Dist.] Oct. 16, 2008)(Brown)
Because no statute defines the accrual date for the Seureaus' breach-of-contract and fraud claims, we look to
the legal-injury rule to determine the accrual date. See KPMG, 988 S.W.2d at 750; S.V. v. R.V., 933 S.W.2d 1,
4 (Tex. 1996). Under the legal-injury rule, a cause of action generally accrues when a wrongful act causes
some legal injury, regardless of when the plaintiff learns of the injury, and even if all resulting damages have not
yet occurred. S.V., 933 S.W.2d at 4. A legal injury consists of any invasion to the claimant's legally protected
interest. Goggin v. Grimes, 969 S.W.2d 135, 137 (Tex. App.-Houston [14th Dist.] 1998, no pet.). Stated
differently, a cause of action generally accrues when facts come into existence which authorize a claimant to
seek a judicial remedy. Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625, 631 (Tex. App.- Houston [14th
Dist.] 1997, pet. denied). When the defendant's conduct produces a legal injury, however slight, the cause of
action accrues and the statute of limitations begins to run. See Childs v. Haussecker, 974 S.W.2d 31, 41 n.7
(Tex. 1998); Goggin, 969 S.W.2d at 137.
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.P.
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).
Fraud
Seureau v. Exxon Mobil Corp (Tex.App.- Houston [14th Dist.] Oct. 16, 2008)(Opinion by Justice Brown)
Texas law prescribes a four-year statute of limitations for fraud actions, including claims for fraudulent
concealment. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a) (Vernon 2002); Williams v. Khalaf, 802 S.W.
2d 651, 658 (Tex. 1990); Teco-Westinghouse Motor Co. v. Gonzalez, 54 S.W.3d 910, 912 n.2 (Tex. App.-
Corpus Christi 2001, no pet.). A cause of action for fraud accrues on the date that the defendant makes the
allegedly false representations. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988); Hoover v.
Gregory, 835 S.W.2d 668, 676 (Tex. App.- Dallas 1992, writ denied).
Statute of Limitations for BoC and promissory estoppel: 4 years | accrual date | notice of claim denial
A defendant moving for summary judgment on the affirmative defense of limitations must conclusively prove
when the cause of action accrued. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746,
748 (Tex. 1999). The statute of limitations for a breach-of-contract cause of action is four years. Tex. Civ. Prac.
& Rem. Code Ann. § 16.004(a)(3) (Vernon 2002). Likewise, the statute of limitations for promissory estoppel is
four years. Id. § 16.051 (Vernon 1997); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 680 (Tex. App.—
Houston [1st Dist.] 1996, no writ). A breach of contract claim accrues when the contract is breached. Stine v.
Stewart, 80 S.W.3d 586, 592 (Tex. 2002). The contract is not breached until a wrongful act occurs. See
Anderson v. Cocheu, 176 S.W.3d 685, 690 (Tex. App.—Dallas 2005, pet. denied). “A cause of action generally
accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to
seek a judicial remedy.” Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex.
1998). In most cases, a cause of action accrues when a wrongful act causes a legal injury, regardless of when
the plaintiff learns of that injury or if all resulting damages have yet to occur. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.
1996).
Source: Ambulatory Infusion Therapy Specialists, Inc. v. North American Administrators, Inc. (Tex.App.-
Houston [1st Dist.] July 10, 2008)(Opinion by Justice Keyes) (health care coverage law, breach of contract,
ERISA preemption, summary judgment based on limitations)
Here, the June 26, 2001 explanation of benefits letter showed that NAHP was paying only $3,500 of AITS’s
$31,089.20 invoice, thus denying reimbursement for $27,589.20. Upon receipt of the June 26, 2001 letter, AITS
had knowledge of an injury—the denial of benefits in the amount of $27,589.20—and, therefore, had sufficient
facts to seek a judicial remedy. Footnote See Pace v. Travelers Lloyds of Tex. Ins. Co., 162 S.W.3d 632, 634–
35 (Tex. App.—Houston [14th Dist.] 2005, mand. motion denied); Thompson v. Great Am. Life Ins. Co., 2005
WL 1072706, at *3 (W.D. Tex. May 5, 2005) (holding that “the fact that Defendant would ‘reconsider’ its decision
indicates to a reasonable recipient that a decision to deny coverage had already been made and communicated
to Plaintiff. Thus . . . Plaintiff possessed sufficient information to allow him to go to court to seek a judicial
remedy, and his cause of action accrued on that date.”). Although AITS did not know the full extent of its injury,
it nonetheless knew that an injury—denial of benefits—had occurred. See S.V., 933 S.W.2d at 4 (stating “a
cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered
until later, and even if all resulting damages have not yet occurred”). We thus conclude that the statute of
limitations commenced on June 26, 2001, the date in which AITS learned that NAHP denied payment. AITS did
not timely file suit within the statute of limitations, and, therefore, its state law claims, if not preempted, would be
time-barred.
Choice Personnel No. Four, Inc. v. 1715 Johanna Square Ltd. (Tex.App. - Houston [1st Dist.] Apr. 13, 2007)
(Alcala) (third appeal, real estate law, foreclosure, title, limitations, res judicata)
AFFIRM TC JUDGMENT: Opinion by Justice Alcala
Before Justices Taft, Alcala and Hanks
01-05-00830-CV Choice Personnel No. Four, Inc., and Choice Acquisitions No. Three, Inc. v. 1715 Johanna
Square Ltd., J&B Richmore Management, L.L.C., J&B Gilmore Management L.L.C.
Appeal from 125th District Court of Harris County (Judge John Coselli)
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