law-accrual-of-cause-of-action | statute of limitations | tolling theories | discovery rule | fraudulent
ACCRUAL OF A CAUSE OF ACTION AND RUNNING OF STATUTE OF
Causes of action accrue when claimants are on notice of their injury and have the opportunity to seek a
judicial remedy. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). The claims
have a two-year statute of limitations. Irrespective of whether fraudulent concealment or the discovery rule
tolls any portion of an applicable limitations period, actual knowledge of the injury triggers the accrual of the
cause of action. The limitations period on the royalty owners’ breach of lease and waste claims began to
run September 1990 and ended September 1992, and the limitations period on Emerald’s and the royalty
owners’ negligence and tortious interference claims began to run June 1994 and ended June 1996, when
the royalty owners had actual knowledge of their claims. Thus, Emerald’s claims brought in July 1996 and
the royalty owners’ claims brought in September 1996 are time-barred. See Tex. Civ. Prac. & Rem. Code §
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,)
A defendant moving for summary judgment based on the affirmative defense of limitations must conclusively
prove the elements of the defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). Thus, a defendant
moving for summary judgment based on limitations must prove as a matter of law: (1) the date on which the
limitations period commenced, i.e., when the cause of action accrued, and (2) that the plaintiff filed its
petition outside the applicable limitations period. See Villarreal v. Wells Fargo Brokerage Servs., LLC, 315 S.
W.3d 109, 117 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Pustejovsky v. Rapid-American Corp.,
35 S.W.3d 643, 646 (Tex. 2000)); Pirtle v. Kahn, 177 S.W.3d 567, 571 (Tex. App.—Fort Worth 2005, pet.
denied) (citing KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)).
The determination of the date on which a cause of action accrued is a question of law for the court.
Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 274-75 (Tex. 2004) (citing Provident Life & Acc. Ins.
Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003); Holy Cross Church of God in Christ v. Wolff, 44 S.W.3d
562, 567 (Tex. 2001)). Generally, a cause of action accrues and limitations begin to run when facts come
into existence that authorize a party to seek a judicial remedy. Id. In most cases, this occurs when a legal
injury results from a wrongful act. Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006); Pirtle, 177 S.W.
3d at 571 (citing Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998)). However, a cause of action under
the Declaratory Judgment Act does not accrue until there is an actual controversy between the parties. See
Murphy v. Honeycutt, 199 S.W.2d 298, 299 (Tex. Civ. App.—Texarkana 1946, writ ref’d) (holding
declaratory judgment action brought for purpose of will construction did not accrue until actual controversy
arose between parties); see also, e.g., Dessommes v. Dessommes, 461 S.W.2d 525, 527 (Tex. Civ. App.—
Waco 1970, no writ); Transp. League, Inc. v. Morgan Express, Inc., 436 S.W.2d 378, 387 (Tex. Civ. App.—
Dallas 1969, writ ref’d n.r.e.); Outlaw v. Bowden, 285 S.W.2d 280, 284 (Tex. Civ. App.—Amarillo 1955, writ
DISCOVERY RULE AND TOLLING THEORIES
Typically, a cause of action accrues when a wrongful act causes some legal injury. Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003); S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). In
some types of cases, the discovery rule may defer accrual of a cause of action until the plaintiff knew or, by
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). In order for the discovery rule to apply, the
nature of the injury must be inherently undiscoverable and the injury itself must be objectively verifiable. Id.
 An injury is inherently undiscoverable if it is, by its nature, unlikely to be discovered within the prescribed
limitations period despite due diligence. Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734-35 (Tex.
2001). "The requirement of inherent undiscoverability recognizes that the discovery rule exception should
be permitted only in circumstances where `it is difficult for the injured party to learn of the negligent act or
omission.'" Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996) (quoting Willis v.
Maverick, 760 S.W.2d 642, 645 (Tex. 1988)). The discovery rule is an independent ground of defense.
Barker v. Eckman, 213 S.W.3d 306, 312 (Tex. 2006).
The Texas Supreme Court has sometimes used the phrase "discovery rule" to refer generally to all
instances in which accrual is deferred, including fraud and fraudulent concealment. Williams v. Khalaf, 802
S.W.2d 651, 657 (Tex. 1990) (citing case that "involved the `discovery rule' since there was a claim of
fraudulent concealment"); Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990) (citing fraud case
as one in which discovery rule applied). The Texas Supreme Court has, however, acknowledged the
difference in these theories: "Strictly speaking, the cases in which we have deferred accrual of causes of
action for limitations purposes fall into two categories: those involving fraud and fraudulent concealment,
and all others. The deferral of accrual in the latter cases is properly referred to as the discovery rule." S.V.,
933 S.W.2d at 4.
Even though the discovery rule and the doctrine of fraudulent concealment each delay the accrual of the
cause of action, the reasons justifying each are different. Horwood, 58 S.W.3d at 736. The doctrine of
fraudulent concealment works to estop a defendant from asserting limitations as a defense because "a
person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until
limitations has run." S.V., 933 S.W.2d at 6; Slusser v. Union Bankers Ins. Co., 72 S.W.3d 713, 719 (Tex.
App.-Eastland 2002, no pet.). An alleged misrepresentation may be relevant to the equitable principles
involved in a fraudulent concealment analysis, but does not affect the determination of inherent
undiscoverability in a discovery rule analysis. Horwood, 58 S.W.3d at 736.
Where the discovery rule applies, a cause of action does not accrue—meaning limitations does not begin to
run—until discovery. "Accrual of a cause of action is deferred in two types of cases: (1) those involving
fraud or fraudulent concealment and (2) those where the injury is `inherently undiscoverable' and is
`objectively verifiable.'" In re Estate of Fawcett, 55 S.W.3d 214, 218-19 (Tex. App.-Eastland 2001, pet.
denied). Moreover, in the discovery rule context, a categorical approach is utilized to determine its
applicability. Apex Towing Co. v. Tolin, 41 S.W.3d 118, 122 (Tex. 2001). Using this approach, a court does
not determine when a particular injury was actually discovered in a particular case, but rather whether the
case is the type to which the discovery rule applies. Id. The focus is on whether a type of injury, rather than
a particular injury was discoverable. Horwood, 58 S.W.3d at 736; Tolin, 41 S.W.3d at 122; Via Net v. TIG
Ins. Co., 211 S.W.3d 310, 314 (Tex. 2006). For example, the discovery rule applies to cases involving fraud
or fraudulent concealment. See Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997); Salinas, 31 S.W.3d
at 336. Dike alleged the "inherent undiscoverability" of his injury as well as fraud and fraudulent
concealment. Thus, the concept of delayed accrual of Dike's cause of action—under both theories—was
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