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Terrace v. City of Texarkana6/21/1999
t TWU's argument that it was directed only to the breach of contract claim.
Having determined the scope of the trial court's order on TWU's motion, we now decide whether TWU met its burden of proof at the summary judgment hearing. The standard for reviewing a summary judgment under Texas Rule of Civil Procedure 166a(c) is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that the judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). In conducting this review, an appellate court takes as true all evidence favorable to the non-movant, and it makes all reasonable inferences in the non-movant's favor. Id. The KPMG Peat Marwick case also dealt with application of the discovery rule in the summary judgment context. There, the Texas Supreme Court stated:
"A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. Thus, the defendant must (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered the nature of its injury. 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." Id. (emphasis added); see also Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n.2 (Tex. 1988).
As to the defendant's burden under the first prong above, a cause of action accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). Under the second prong, the defendant must initially show either that the discovery rule does not apply, or that it has not been pled or otherwise raised. In general, the discovery rule applies in those cases where the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable. Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1994). An injury is inherently undiscoverable if it is the type of injury that is not generally discoverable by the exercise of reasonable diligence. See HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998) (citing Computer Assocs. Int'l, Inc., 918 S.W.2d at 455). Thus, if the discovery rule has been pled or otherwise raised, and the defendant has conclusively shown that the nature of the injury is not inherently undiscoverable, or that the evidence of injury is not objectively verifiable, then the discovery rule does not apply and summary judgment is proper. On the other hand, if the discovery rule has been pled or otherwise raised, and the defendant has not conclusively shown that the nature of the injury is not inherently undiscoverable, or that the evidence of injury is not objectively verifiable, then the discovery rule does apply and accrual of the cause of action occurs when the plaintiff knew or should have known of the wrongfully caused injury. See KPMG Peat Marwick, 988 S.W.2d at 748. It is then the defendant's burden to prove as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of its injury. Once the defendant has met its burden under both prongs, the plaintiff may still defeat summary judgment by adducing proof r
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