applicability of the discovery rule in Texas

2010See Bums v. Thomas, 786 S.W.2d 266, 267 (Tex.1990).

2009See id .; Burns v. Thomas , 786 S.W.2d 266, 267 (Tex. 1990).

2016The Texas Supreme Court has noted a common thread in cases finding inherently undiscoverable injuries, which it described as, “when the wrong and injury were unknown to the plaintiff because of their very nature and not because of any fault of the plaintiff . . . .” S.V., 933 S.W.2d at 7 .

2003The trial judge then abated the remaining issues pending the resolution of this appeal. [5] See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 121 (Tex.2001) (attorney malpractice); Little v. Smith, 943 S.W.2d 414 (Tex.1997) (probate); S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996) (child abuse); Bayou Bend, 866 S.W.2d at 743 (construction defects); Buffington v. Lewis, 834 S.W.2d 601 (Tex.App.-Houston [14th Dist.] 1992, no writ); Tenowich, 712 S.W.2d at 190 . [6] Although Marvin contests the applicability of the discovery rule in its brief, Real Homes does not argue the discovery rule is inapplicable.

2010See KPMG Peat Marwick, 988 S.W.2d at 748 ; Lerner, 302 S.W.3d at 17-18 .

2010See KPMG Peat Marwick , 988 S.W.2d at 748 ; Lerner , 2009 WL 3365849, at *1 .

2016Evaluating the applicability of the discovery rule, we thus determine whether the trustees’ injury is “the 13 type of injury that generally is discoverable by the exercise of reasonable diligence.” Wagner & Brown, 58 S.W.3d at 735 (quoting HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998)).

2016Evaluating the applicability of the discovery rule, we thus determine whether the trustees’ injury is “the type of injury that generally is discoverable by the exercise of reasonable diligence.” Wagner & Brown, 58 S.W.3d at 735 (quoting HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998)).

2014Co., 211 S.W.3d 310, 314 (Tex. 2006) (noting that determination of the applicability of the discovery rule is a legal question); Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990) (same); Baleares Link Express, S.L., 335 S.W.3d at 837 (same).

2014Co., 211 S.W.3d 310, 314 (Tex.2006) (noting that determination of the applicability of the discovery rule is a legal question); Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex.1990) (same); Baleares Link Express, S.L., 335 S.W.3d at 837 (same).

2015Cobb v. TDCJ, 965 S.W.2d 59, 61 (Tex.App.―Houston 1st Dist.] 1998, no writ); Matter of Estate of Matejek, 928 S.W.2d 742 (Tex.App.―Corpus Christi, 1996) writ denied per curiam; In re Estate of Herring, 970 S.W.2d 583, at 586 (Tex.App.—Corpus Christi 1998, no pet.) (“Specifically, a defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and, when applicable, must negate the discovery rule by proving as a matter of law that there no genuine 24 SUPP RR: Vol. 4 of 6 at 43:23 [Tab U, Bud Wade Trial Testimony]. 10 issue of fact about when the plain

2012In re Estate of Herring, 970 S.W.2d 583, 586 (Tex. App.—Corpus Christi 1998, no pet.); Seibert v. General Motors Corp., 853 S.W.2d 773, 775 (Tex. App.— Houston [14th Dist.] 1993, no writ).

2014Co., 211 S.W.3d 310, 314 (Tex. 2006) (noting that determination of the applicability of the discovery rule is a legal question); Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990) (same); Baleares Link Express, S.L., 335 S.W.3d at 837 (same).

2014Co., 211 S.W.3d 310, 314 (Tex.2006) (noting that determination of the applicability of the discovery rule is a legal question); Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex.1990) (same); Baleares Link Express, S.L., 335 S.W.3d at 837 (same).

2014Co., 211 S.W.3d 310, 314 (Tex. 2006) (noting that determination of the applicability of the discovery rule is a legal question); Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex. 1990) (same); Baleares Link Express, S.L., 335 S.W.3d at 837 (same).

2014Co., 211 S.W.3d 310, 314 (Tex.2006) (noting that determination of the applicability of the discovery rule is a legal question); Williams v. Khalaf, 802 S.W.2d 651, 658 (Tex.1990) (same); Baleares Link Express, S.L., 335 S.W.3d at 837 (same).

2012In re Estate of Herring, 970 S.W.2d 583, 586 (Tex. App.—Corpus Christi 1998, no pet.); Seibert v. General Motors Corp., 853 S.W.2d 773, 775 (Tex. App.— Houston [14th Dist.] 1993, no writ).

2004Clear Creek Basin Auth., 598 S.W.2d at 678; Seibert v. General Motors Corp. , 853 S.W.2d 773, 775 (Tex. App. C Houston [14th Dist.] 1993, no writ).

2010See 988 S.W.2d at 748 ; Proctor v. White , 172 S.W.3d 649, 651-652 (Tex. App.-Eastland 2005, no pet.).

2010See 988 S.W.2d at 748 ; Proctor v. White, 172 S.W.3d 649, 651-652 (Tex. App.–Eastland 2005, no pet.). 20 At oral argument, Bonilla's counsel conceded that if the burden did not shift and Bonilla retained the burden to negate the discovery rule, he did not do so.

2005See Russell , 841 S.W.2d at 344 n.3.

2005See Russell, 841 S.W.2d at 344 n.3.

1999See Weaver v. Witt, 552 S.W.2d 565, 567 (Tex.Civ.App.—Houston [14th Dist.]), rev’d on other grounds, 561 S.W.2d 792 (Tex.1977). 10 .

1999See Weaver v. Witt , 552 S.W.2d 565, 567 (Tex. Civ.

1988See Smith v. Knight, 608 S.W.2d 165 (Tex.1980).

1981The supreme court, in refusing a writ of error, no reversible error, expressly reserved its ruling on the applicability of the discovery rule. 608 S.W.2d 165 (Tex.1980).

2015Cobb v. TDCJ, 965 S.W.2d 59, 61 (Tex.App.―Houston 1st Dist.] 1998, no writ); Matter of Estate of Matejek, 928 S.W.2d 742 (Tex.App.―Corpus Christi, 1996) writ denied per curiam; In re Estate of Herring, 970 S.W.2d 583, at 586 (Tex.App.—Corpus Christi 1998, no pet.) (“Specifically, a defendant seeking summary judgment on the basis of limitations must prove when the cause of action accrued and, when applicable, must negate the discovery rule by proving as a matter of law that there no genuine 24 SUPP RR: Vol. 4 of 6 at 43:23 [Tab U, Bud Wade Trial Testimony]. 10 issue of fact about when the plain

2015As a defendant seeking summary judgment on the affirmative defense of limitations, First Bank had the burden to establish as a matter of law that Ventures’s negligence claims accrued more than two years before September 30, 2013, and that Ventures’s breach of contract claim accrued more than four years before September 30, 2013. 15 And, once the discovery rule was put at issue in the trial court, First Bank also had the burden of negating the applicability of the discovery rule. 16 The limitation period starts running when a claimant learns of a wrongful injury, even if the claimant does not y

2015As a defendant seeking summary judgment on the affirmative defense of limitations, First Bank had the burden to establish as a matter of law that Ventures’s negligence claims accrued more than two years before September 30, 2013, and that Ventures’s breach of contract claim accrued more than four years before September 30, 2013. 15 And, once the discovery rule was put at issue in the trial court, First Bank also had the burden of negating the applicability of the discovery rule. 16 The limitation period starts running when a claimant learns of a wrongful injury, even if the claimant does not y

2015Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex. 1997). 19 S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996). 7 completed on time, it had to pay more in interest than it should have had to, the home lost value, and it suffered loss of the use of the home.

2015DMAC relies principally on Brisbane Lodging, L.P. v. Webcor Builders, Inc., 216 Cal. App. 4th 1249, 1260 (Cal. Ct. App. 2013), for the proposition that paragraph 13.7.1.2 of the Ccontract abrogates, as a matter of law, the applicability of the discovery rule.

2014Alternatively, Appellees argue that jury question number seven was properly submitted to the jury because Lesley v. Veterans Land Board, 352 S.W.3d 479, 484-86 (Tex.2011), “reaffirms the application of the knew or should have known discovery rule standard in reformation cases.” However, Appellees also recognize that in HECI the supreme court held that the applicability of the discovery rule is determined categorically and has instructed all courts to make a threshold determination as to the applicability of the discovery rule.

2003The trial judge then abated the remaining issues pending the resolution of this appeal. [5] See Apex Towing Co. v. Tolin, 41 S.W.3d 118, 121 (Tex.2001) (attorney malpractice); Little v. Smith, 943 S.W.2d 414 (Tex.1997) (probate); S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996) (child abuse); Bayou Bend, 866 S.W.2d at 743 (construction defects); Buffington v. Lewis, 834 S.W.2d 601 (Tex.App.-Houston [14th Dist.] 1992, no writ); Tenowich, 712 S.W.2d at 190 . [6] Although Marvin contests the applicability of the discovery rule in its brief, Real Homes does not argue the discovery rule is inapplicable.