concurring and dissenting.
I concur with the court’s disposition of this cause as to Glacier General Assurance Company. However, I respectfully dissent as to the court’s rendition of judgment against Peggy Woods.
As the court recognizes, it is basic law that a defendant urging a limitations defense has in addition to a pleading obligation the burden of proving the defense. The court correctly states that limitations, unless tolled, commence running as of the date of misrepresentation. However, this would be so only if there were but one misrepresentation. Continuing misrepresentations would suspend for their duration the date from which the statute of limitations would commence running. I disagree with the court that Mercer established its limitations defense as a matter of law. There was a factual dispute as to the date of the last fraudulent act by Mercer. Because there was a factual dispute, it was Mercer’s burden to obtain findings that would establish its limitations defense. Tex.R.Civ.P. 279. Mercer failed to do this. Accordingly, this court should never reach the issue of the discovery rule, as Mercer has failed to obtain findings to support its defense.
However, because the court does base its holding on the discovery rule, I feel compelled to comment. I agree that as a general principle the burden of submitting and securing favorable findings is on the party seeking to benefit from the discovery rule. I likewise agree that the discovery rule is a plea of confession and avoidance, and should not be called an affirmative defense.
However, I cannot join with Justice Mau-zy in his dissent as to the court’s affirming Mercer’s take nothing judgment against Woods. Mercer had no duty to object to the absence of an issue that served as a basis of Woods’ recovery (assuming Mercer had satisified its burden of proving its limitations defense). Further, the discovery rule is not a part of a cluster of issues. No deemed finding is permissible.
In conclusion, I respectfully submit that because of Mercer’s failure to obtain findings in support of a disputed fact issue on limitations, it has waived that defense. Thus, I would reverse the judgment of the court of appeals as to both Mercer and Glacier.