Advent Trust Co. v. Hyder ( 1999 )

HARDBERGER, Chief Justice,

concurring.

The majority reaches the result it must under the holdings in Kenneco and Murphy. Therefore, I reluctantly join the opinion.

The constraints placed on the application of the discovery rule by these two holdings however cause us to disregard a specific jury finding on a matter that the jury was in the best position to decide. The discovery rule is intended to defer the accrual of a cause of action until the plaintiff knows or in the exercise of reasonable diligence should know of the wrongful act and the resulting injury. In this case, the jury was asked to determine the date on which the Hyder-Rowans discovered or should have discovered the breach of the Joint Operating Agreement. The jury answered with a date that would have avoided the limitations bar. The submission of this issue was proper, and there was evidence to support the jury’s answer.

As the Texas Supreme Court acknowledged in Murphy, the date a particular person becomes charged with knowledge in most discovery rule cases depends on the circumstances. 964 S.W.2d at 271. The determination of knowledge- depends heavily on factual circumstances, and what a reasonable person should know and do based on those circumstances. A jury is more capable than appellate judges in determining the reasonable date for discovery. In this case, the Hyder-Rowans’ position is that discovery of the defendant’s wrongdoing was delayed by the assurances of the defendant that everything had been done properly. That may or may not be so. The validity of this excuse requires a factual determination involving credibility, common sense, and the relationship of the parties to each other. This analysis will vary from case to case, and it should. It is difficult, and likely impossible, to fit all circumstances with a single, non-yielding legal principle.

Appellate judges, of course, are entitled to their own opinion about the validity of the reasons for non-action in any given case. But legal training and experience do not necessarily place the judge in any better position than a juror in evaluating the amount of knowledge a person has, or the reasonableness of a person’s actions in using that knowledge.

The jury should decide these questions. The jury’s determinations are always subject to judicial appellate review under the no evidence or insufficient evidence standards. Both arms of the law are then satisfied: the fact finding and the appellate review. The dispute in this case is not being resolved for lack of evidence, or lack of a finding. The jury verdict is negated because the jury found the “wrong” answer.

The majority opinion in this case properly recognizes that this court is not a free agent in this matter, and that stare decisis demands that this court follow Kenneco and Murphy. I also recognize our obligation under stare decisis. But justice suffers when there is a confusion between the role of judge and the role of the jury. This case is a good example.

I believe that a more just approach would be to hold that a deficiency notice, a denial of coverage, or an allegation in a lawsuit are evidence of a plaintiffs knowledge, but not definitive as a matter of law.