Snell v. Sepulveda

OPINION

PAUL W. GREEN, Justice.

This case is about whether the statute of limitations bars a claim of tortious interference with a legal services contract. The action was filed more than two years after the wrongful conduct. The question is whether the discovery rule applies to defer the running of the two-year limitations period when the injured party did not discover the wrongful conduct until after it occurred, and the wrongful conduct was neither fraudulently concealed nor inherently undiscoverable. We hold the discovery rule does not apply in this case. The trial court’s judgment is reversed.

BACKGROUND

Herlinda Acuna, Teresa Gonzales, and Diana Rodriguez (“the clients”) were injured in an automobile accident in August 1995. They sought legal counsel and were referred to attorney Jesse A. Sepulveda by Jaime Rivera, who worked for Sepulveda. On October 20, 1995, the clients signed legal services contracts with Sepulveda to represent them in their claims for damages arising out of the accident (“the claims”). In December 1995, Sepulveda sent a demand letter to the claims adjuster for the insurance company of the other driver in the accident. Several attempts to settle the claims were unsuccessful. When Sepulveda again contacted the adjuster in late January 1996, he was told the claims were settled on January 19,1996 by attorney Paul Snell (“Snell”) through his employee, Rivera. Rivera had begun working for Snell after leaving Sepulveda’s employ in the fall of 1995. Rivera had brought the clients to Snell, who signed them to his own legal services contracts on or about January 8, 1996. Sepulveda did not know until the time of trial that Snell had signed-up the clients on January 8, but he admitted he knew it occurred before the January 19 settlement.

Sepulveda filed suit against Snell on January 20, 1998, alleging tortious interference with contract. Snell answered and asserted limitations as an affirmative defense. Following a non-jury trial, the trial court entered judgment in favor of Se-pulveda in the amount of $6,666.59, plus interest.

Discussion

Snell contends the trial court erred in denying his motion for directed verdict because Sepulveda’s tortious interference claim was barred by limitations. Snell asserts that Sepulveda’s claim accrued at the latest on January 8, 1996 when the clients signed contracts with Snell. Se-pulveda contends the cause of action accrued no earlier than January 19,1996, the date Snell settled the claims. And even though the suit appears to have been filed one day late, Sepulveda says it was timely filed because January 19, 1998 was a legal holiday. See Tex.R.App. P. 4.1.

Generally, a cause of action accrues, and the limitations period begins running, when a wrongful act causes some legal injury, even if the fact of injury is not *144discovered until later. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). All claims are treated in accordance with this “legal injury rule” unless the discovery rule applies. Under the discovery rule, accrual of a cause of action will be deferred if: 1) the cause of action is not discovered as a result of fraud or fraudulent concealment; or 2) the cause of action is one that is “inherently undiscoverable.” Id. at 6. Determining when a cause of action accrues is a question of law. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 567 (Tex. 2001). A two year limitations period applies to tortious interference with contract claims. First Nat’l Bank v. Levine, 721 S.W.2d 287, 288 (Tex.1986).

It is undisputed that Snell signed the clients to contracts in derogation of Sepulveda’s contractual rights on or about January 8, 1996, or at least sometime before the January 19, 1996 settlement. Consequently, Sepulveda’s lawsuit, filed on January 20, 1998, is time-barred unless the discovery rule defers the running of limitations. Generally, the discovery rule must be affirmatively pled for a party to assert it. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517-18 (Tex.1988); Pitman v. Lightfoot, 937 S.W.2d 496, 510 (Tex.App.— San Antonio 1996, writ denied). Sepulve-da failed to plead the discovery rule, and it was not an issue in the trial of the case. Sepulveda made no attempt to show either that Snell fraudulently prevented Sepulve-da from knowing about his actions in contracting with the clients, or that the injury was of a type that is inherently undiscoverable.

The dissent, however, would apply the discovery rule in the absence of pleading, contending the matter was tried by consent. But the only evidence cited to support this contention is that Sepulveda testified without objection that he did not “discover” what Snell had done until the claims adjuster told him in late January 1996 that Snell had settled the clients’ cases.

As previously noted, it is well-settled that a cause of action accrues at the time the legal injury occurs, “even if the fact of injury is not discovered until later.” S.V., 933 S.W.2d at 4. The fact that Sepulveda found out about Snell’s conduct after it had occurred does not defer the running of limitations when the actual date of the tortious conduct was easily discoverable and was not fraudulently concealed.

CONCLÜSION

Snell’s actions gave rise to a legal injury when the clients gave him the contractual right to settle their claims contrary to the authority previously given Sepulveda. This event occurred before January 19, 1996. Sepulveda’s claim is, therefore, time-barred because he failed to plead or prove any basis for deferring the running of limitations. In view of our holding, it is unnecessary to address Snell’s legal insufficiency issue.

The trial court’s judgment is reversed and a take-nothing judgment is rendered in favor of Snell.