Feb 19, 2015
Can I pursue a lawsuit for a wrongful act even though the limitations period has expired?
Generally, no. In certain limited circumstances however, Texas courts apply the “discovery rule” as an exception to the statutory limitations period.
The discovery rule delays the accrual of a cause of action until the plaintiff knows, or by the exercise of reasonable diligence, should have known of the facts giving rise to his cause of action. See Baker v. Eckman, 213 S.W.3d 306, 311-312 (Tex. 2006). In order for the discovery rule to apply, the nature of the injury must be inherently undiscoverable and objectively verifiable. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998). When applied, the discovery rule tolls the running of limitations until the plaintiff (1) discovers the wrongful act that causes an injury or (2) acquires knowledge of facts that would lead to the discovery of the wrongful act. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). Similarly, a defendant cannot avoid liability for his actions by purposefully concealing the wrongdoing until the statute of limitations has run. Id. at 6.
A party trying to rely upon the discovery rule must both plead and prove that the rule applies. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988).