law-limitations-summary-judgment-on-time-barred-claim | movant has burden to prove accrual date of claim |
discovery rule as exception to limitations | fraudulent concealment as basis for pursuing otherwise time-
barred claim


To be entitled to summary judgment based on its limitations defense, the movant must conclusively establish
the date the cause of action accrued, negate the applicability of the discovery rule, and prove as a matter of
law that the non-movant's claim is time-barred.  See id.; Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990).  
If the movant establishes that the action is barred by limitations, the non-movant must then put on proof that
raises a fact issue on limitations to avoid summary judgment.  KPMG Peat Marwick, 988 S.W.2d at 748.
Lerner, MD v. First Commerce Bank (Tex.App.- Houston [14th Dist] Sep. 10, 2009)(Yates)
claim based on bank's failure to honor check time-barred, 4-year statute of limitations for breach of contract)
AFFIRMED: Opinion by
Justice Brock Yates   
Before Chief Justice Hedges, Justices Brock Yates and Frost  
14-07-01084-CV   Marvin W. Lerner, MD v. First Commerce Bank   
Appeal from County Court at Law No 3 & Probate Court of Brazoria County


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
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).

Ambulatory Infusion Therapy Specialists, Inc. v. North American Administrators, Inc. (Tex.App.- Houston [1st
Dist.] July 10, 2008)(Keyes) (
medical coverage law, health care coverage, claim denial, ERISA preemption,
breach of contract, promissory estoppel, summary judgment based on limitations, accrual of cause of action)
Justice Keyes  
Before Justices Taft, Keyes and Alcala
01-06-00756-CV Ambulatory Infusion Therapy Specialists, Inc. v. North American Administrators, Inc. d/b/a
North American Health Plans and Osmose, Inc.
Appeal from 125th District Court of Harris County
Trial Court
Judge:  Hon. John Coselli
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.

Martinez v. Donisi (Tex.App.- Houston [14th Dist.] July 30, 2009)(Frost)(inheritance dispute, probate law,
dispute re money alleged to have been held in trust for grandchild, claims of alleged violations of the Texas
Theft Liability Act, conversion of money, breach of fiduciary duty, and fraud) (summary judgment based on
limitations reversed, accrual date not proven)(multiple appeals)(summary judgment based on limitations
reversed, movant did not prove accrual date)
Justice Frost  
Before Justices Frost, Brown and Boyce  
14-08-00166-CV  Jaime Martinez v. Philip Donisi, Independent Executor of the Estate of Jackie Marie
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood