1 JOINDER OF THIRD PARTIES: ENTITIES AND/OR INDIVIDUALS Moderator: BRIAN L. WEBB, Dallas Webb & Associates, P.C. Panelists: KATIE PEARSON KLEIN, McAllen Dale & Klein, L.L.P. JOHN F. NICHOLS, SR., Houston Nichols Law, P.L.L.C. THOMAS L. AUSLEY, Austin Ausley, Algert, Robertson & Flores, LLP Author: JOHN F. NICHOLS, SR., Houston Nichols Law, P.L.L.C. State Bar of Texas 35 TH ANNUAL ADVANCED FAMILY LAW COURSE August 3-6, 2009 Dallas CHAPTER 72
3 BRIAN L. WEBB Webb & Associates, P.C. Dallas, Texas Brian Webb has practiced family law for more than 30 years and has been Board Certified since A popular lecturer and author, his published works cover a wide variety of family law topics. Brian has presided over Texas three largest statewide family law organizations (the Family Law Section of the State Bar of Texas, the Texas Academy of Family Law specialists, and the Texas Chapter of the American Academy of Matrimonial Lawyers) and has served on the boards of national and international family law organizations. Brian is currently an officer in the Texas Family Law Foundation, which spearheads the legislative effort for Texas family lawyers and is President-elect of the American Academy of Matrimonial Lawyers Foundation which provides financial assistance to organizations benefiting the children of divorce as well as other worth causes. Brian is a past recipient of the Judge Sam Emison Award and has been chosen to be in TexasSuperLawyers.com every year since its inception, including multiple selections as one of the Top 100 Super Lawyers in Texas and multiple selections as one of the Top 100 Super Lawyers in the Dallas/Fort Worth area. He has been listed in Best Lawyers in America every year since 1989.
5 BIOGRAPHICAL INFORMATION ON JOHN NICHOLS, SR. 1 EDUCATION B.S., Rice University 1964 LL.B., University of Houston 1967 PROFESSIONAL ACTIVITIES Board Certified: Family Law, Personal Injury Law and Civil Trial Law Past Chairperson: Litigation Section, State Bar of Texas Diplomate: American Board of Trial Advocates Fellow: International Society of Barristers Fellow: American College of Family Trial Lawyers Fellow: American Academy of Matrimonial Lawyers Fellow: International Academy of Matrimonial Lawyers LAW RELATED PUBLICATIONS HONORS Author of articles on family law, personal injury law and civil trial law. State Bar of Texas Gene Cavin Award (2008) Rice University Athletic Hall of Fame (Football) Texas Center for the Judiciary Outstanding Article Award (2007) Appreciation John Nichols extends his grateful appreciation to the following people who worked on this article: Tina Gibson, and summer intern Victor Brooks of Rice University. John Nichols extends his special appreciation to Susan Myres for her grant of authority to use her article on Third Party Actions in this presentation. 1 See also
7 KATIE PEARSON KLEIN Dale & Klein, L.L.P. McAllen, Texas Katie Pearson Klein is board certified in Family Law (87) and Civil Trial Law (89) and has practiced for 33 years. She is a past Director of the Family Law Section, Past course director of Marriage Dissolution and serves on the Pattern Jury Charges Committee. She has been a frequent author and speaker at seminars sponsored by the State Bar of Texas.
9 THOMAS L. AUSLEY AUSLEY, ALGERT, ROBERTSON & FLORES, L.L.P Northland Drive, Suite 420 Austin, Texas (512) (512) Facsimile EDUCATION Texas Tech University, B.B.A. in Finance, 1965 University of Texas School of Law, J.D., 1968 PROFESSIONAL ASSOCIATIONS Member, State Bar of Texas since 1968 Board Certified by Texas Board of Legal Specialization Family Law, 1980 (re-certified 2005) Fellow, American Academy of Matrimonial Lawyers Officer of the Texas Chapter: Treasurer, Secretary, President-Elect, President, Member, Board of Governors of American Academy of Matrimonial Lawyers National Chapter Member, International Academy of Matrimonial Lawyers Member, American Bar Association - Family Law Section Associate, American Board of Trial Advocates Member, Board of Trustees for the Collaborative Institute of Texas ( ) Charter Member, Texas Family Law Foundation Member, Board of Trustees ( ) Member, College of the State Bar of Texas Member, Family Law Section Council, State Bar of Texas ( ) Secretary, , Treasurer, Fellow, Texas Bar Foundation Fellow, American Bar Foundation, Life Fellow, State Bar of Texas Life Fellow, American Academy of Matrimonial Lawyers Foundation Listed in the Martindale-Hubbell Bar Registry of Preeminent Lawyers Member, Texas Academy of Family Law Specialists President, Travis County Family Law Advocates ( ) President, Political Action Committee ( ) Member, State Bar Task Force on Reorganization of the Office of General Counsel (1994) Member, Austin Bar Association Member, Williamson County Bar Association
10 LEGAL PROFILE & HONORS Forty-one years= experience in the practice of law in Austin, Texas Practice includes primarily family law, including collaborative divorce, civil litigation, mediation and arbitration. Listed in The Best Lawyers in America, Family Law Section, 1987-present Named by Texas Monthly Magazine as: ATexas Super Lawyers_"( present), one of the ATop 50 Central/West Texas (2004 and 2007), and one of the ATop 100 Lawyers in (2007). Named ALawyer of the Year in Central by Best Lawyers_, 2009 Listed in Austin Monthly, The Best Lawyers in Austin - Family Law, 2002 Received the Outstanding Fundraiser Award given by the Association of Fundraising Professionals, Austin Chapter, 2008 Received President and Chair=s Courage and Integrity Award given by Planned Parenthood Federation of America, 2004 Received Good Guys and Gals Award given by the National Women=s Political Caucus, Texas Chapter, 2004 rating, Martindale-Hubbell Legal Directory Finalist, 1 st annual AEthics in Business Individual (Samaritan Counseling Center and St. Edwards University) LEGAL SEMINARS AND WRITINGS Author and speaker, 1995 Advanced Family Law Drafting Course Author and speaker, 1997 Advanced Family Law Course Author and speaker, 1998 Advanced Family Law Courses (August and December) Author, 1999 Advanced Family Law Course Author and speaker, 2000 Ultimate Trial Notebook for Family Law Planning Committee, 2003 Family Law on the Front Lines Author and speaker, 2003 Advanced Family Law Course - Characterization and Tracing Author and speaker, 2004 Advanced Family Law Course Professionalism in Family Law Speaker, st Annual Collaborative Law Seminar Author and speaker, 2004 Ultimate Trial Notebook - Pretrial and Scheduling Orders Speaker, 2004 University of Texas Family Law on the Front Lines - Collaborative Law Author and speaker, 2005 University of Texas Family Law on the Front Lines - Impaired Clients: Ethical Issues and Advocacy Author and speaker, 2005 Associate Judge=s Training - The Hague Convention Author and speaker, 2005 State Bar of Texas= Advanced Family Law Course - Ethics & the Enhancement of the Attorney-Client Relationship Speaker, 2006 Paralegal Association of the Permian Basin - Ethics Speaker, Texas Academy of Family Law Specialists= Trial Institute, 2006 (Reno, Nevada) Moderator, Judges= Panel for 2006 Marriage Dissolution Institute Course Director - Family Law, State Bar of Texas 2006 Annual Meeting (Austin) Course Director - Ultimate Trial Notebook, 2006 (New Orleans, Louisiana) Speaker/Panelist, 2007 State Bar of Texas= Family Law on the Front Lines, Representing the Difficult Client (Galveston) Workshop Moderator, 2007 State Bar of Texas= Advanced Family Law Course, Advanced Collaborative Law (San Antonio) Speaker, 2007 State Bar of Texas= Advanced Family Law Course, The Not So Easy To Identify Executive Employment Benefits (San Antonio)
11 Author and speaker, 2008 State Bar of Texas= Advanced Family Law Course - The Professional Practice: Yourself, Your Office, and Your Relationships with Others Speaker, 2008 State Bar of Texas= Advanced Family Law Course - Collaborative Family Law Track Speaker, 2009 Collaborative Law Institute of Texas Boot Camp Speaker, 2009 International Academy of Matrimonial Lawyers Annual Meeting, USA and Canadian Chapters, The Path to Yearning for Zion/FLDS Speaker, 2009 University of Texas School of Law and Texas Family Law Foundation=s 10 th Biennial Family Law Legislative Update Various seminars for the Paralegal Division of the State Bar of Texas, State Bar of Texas, Travis County Bar Association, and Volunteer Legal Services of Central Texas ALTERNATIVE DISPUTE RESOLUTION & COLLABORATIVE TRAINING & EXPERIENCE LBJ School of Public Affairs Advanced Mediation Training (1997) Advanced Family Law Mediation Training (1997) Dispute Resolution Center of Austin Mediation Training: Basic 40-hour course, 2004 Family Law course, 2004 Travis County Bar Association Settlement Week Mediator Training Appointed by Travis County District Judges as court-appointed mediator Volunteer mediator, Travis County Settlement Weeks ( ) Volunteer mediator, Williamson County Settlement Week ( present) Collaborative Divorce Training: Basic: 2000, 2002, 2003 Intermediate: 2000 Advanced: 2004 Multi-Disciplinary: 2006 American Academy of Matrimony Lawyers Arbitration Training (2000)
13 The Texas Perspective on Joinder of Additional Parties and Cause of Action to the Divorce Additional Parties Before a case is called for trial, additional parties, necessary or proper parties to the suit, may be brought in, either by the plaintiff or the defendant, upon such terms as the court may prescribe; but not at a time nor in a manner to unreasonably delay the trial of the case. Tex.R.Civ. P. 37 (1941). Additional Causes of Action Joinder of tort claims with the divorce, when feasible, is encouraged. Resolving both the tort and divorce actions in the same proceeding avoids two trials based at least in part on the same facts and settles in one suit all matters existing between the parties. Twyman v. Twyman, 855 S.W.2d 619, 625 (Tex. 1993), citing Mogford v. Mogford, 616 S.W.2d 936 (Tex.Civ.App. San Antonio 1981, writ ref d n.r.e.).
15 TABLE OF CONTENTS I. INTRODUCTION II. INTENTIONAL AND UNINTENTIONAL TORTS... 1 A. Elements Intentional Torts... 1 B. Elements Unintentional Torts C. Redressing Wrongs D. Res Judicata and Collateral Estoppel Distinction E. Procedural Bars And Defenses To Bringing Actions And Limiting Damages Divorce Cases Non-Divorce Cases Limitations of Actions Defense to Limitations The Relation Back Doctrine Defense to Limitations Aggravation of Pre-Existing Conditions Defense to Limitations Discovery Rule Defense to Limitations Continuing Tort... 4 G. Schlueter, Before and After Introduction Reference Material Schlueter v. Schlueter - Briefed III. JOINDER OF ADDITIONAL PARTIES AND ACTIONS... 7 A. Definition and Scope... 7 B. Interpleader - Tex. it Civ. P Introduction Filing the Interpleader Petition Requirements for Interpleader Filing a Response Hearing on the Interpleader Order Family Law Case Application C. Impleader (Joinder) - Tex.R.Civ.P. 37, 38, 39 and Introduction Filing the Third-party Petition by Original Respondent - Tex. R. Civ. P. 38(a) Filing the Third-party Petition by Original Petitioner Effect of Dismissal of Original Petition for Petitioner Motion to Strike, Sever, Separate Risks Involving Impleader Trial Court Considerations Involving Impleader Family Law Case Application D. Plea In Intervention - Tex. R. Civ. P. 60 and Introduction Filing the Plea Notice of the Plea Requirements Motion to Strike and Hearing Order on Motion to Strike Family Law Case Application E. Consolidation - Tex. R. Civ. P. 174(a) Introduction Motion Response Order i
16 5. Family Law Case Application F. Conclusion IV. RECOGNIZED TORTS IN TEXAS A. Statutory Torts Texas Deceptive Trade Practices Consumer Protection Act. Tex. Bus. & Com. Code, ; Tex. Pattern Jury Charges - Business/ Consumer, Chapter 102 (2006) Texas Fraud in Real Estate and Stock Transactions Act. Tex. Bus. & Com. Code, (Vernon 2002, and Supp. 2007) Texas Uniform Fraudulent Transfer Act. Tex. Bus. & Com. Code, (Vernon 2002 and Supp. 2007) Texas Family Code - Transfer and Debts Pending Decree. Tex. Fam. Code. Ann., Texas Kidnapping Act. Tex. Fam. Code Ann., Texas Theft Liability Act. Tex. Civ. Prac. & Rem. Code, Texas Civil Wiretap Act. Tex. Civ. Prac. & Rem. Code, Texas Principal and Income Act. Tex. Prop. Code, Texas Prudent Investor Act. Tex. Prop. Code, B. Statutory and Common Law Torts Covered in this Article Abuse of Process Assault False Imprisonment Intentional Infliction of Emotional Distress Intentional or Negligent Transmission of Venereal Disease Invasion of Privacy-Intrusion on Seclusion and Solitude Invasion of Privacy-Public Disclosure of Private Facts Defamation - Slander Interception of Wire, Aural and Electronic Communications Conversion Economic Duress Forgery Fraudulent Transfer of Community Property Accounting Actual Fraud on the Person and Property Breach of Fiduciary Duty Under the Trust Fund Doctrine Breach of Fiduciary Relationship - Business and Personal Constructive Fraud on the Person and Property Identifying Information Misapplication of Fiduciary Property Breach of Contract and Money Had and Received Rescission Promissory Estoppel Usurpation of Community Opportunity Waste of Assets Alter-Ego Corporations Joint Venture/Partnership Alter-Ego Trusts Civil Conspiracy Wrongful Interference with Existing Contract Tortious Interference with Prospective or Business Relations Oral Gift of Land Estoppel Trespass to Chattels/Replevin Agency Bailment Fraudulent Conveyance ii
17 38. Malicious Prosecution Property Held or Controlled Fraudulent Destruction, Removal, or Concealment of Writing Securing Execution of Documentation through Deception Damages V. TORTS NOT RECOGNIZED IN TEXAS VI. PROVIDING CIVIL REMEDIES FOR CIVIL AND CRIMINAL WRONGS APPENDIX 1 THIRD PARTY ACTION FORMS APPENDIX 2 NICHOLS LAW, P.L.L.C. S PLEADINGS FOR CAUSES OF ACTION APPENDIX 3 CHARGE OF THE COURT FOR CAUSES OF ACTION APPENDIX 4 FIDUCIARY LITIGATION: CONFLICTS AND OVERLAPS iii
19 JOINDER OF THIRD PARTIES: ENTITIES AND/OR INDIVIDUALS I. INTRODUCTION. New or developing causes of action in the twenty first century in Texas law and family law, including fiduciary litigation, generally track or follow developing technology and themes. This article covers new or emerging torts as well as the application existing torts and contractual or quasi - contractual actions to family law cases, primarily in personal and property torts, fiduciary and third party litigation. References to outstanding articles on this topic are: (1) Drafting Third Party Actions Three s A Crowd Drafting Third Party Actions by Susan Myres and Tara Luedke Mora Myres, Dale and Associates, 2002 State Bar of Texas Advanced Family Law Drafting Course, Chapter 14; (2) Taking Divorce To A Toxic Level by Bobby K. Newman, 2002 Advanced Family Law Drafting Course, Chapter 19; (3) Tips For Drafting Like A Pro: From Basic Clams To Exotic Causes of Action by Wendy S. Burgower and Carlotta H. Ramirez, 2003 Advanced Family Law Drafting and Advocacy: Art and Form, Chapter 3; (4) Dead on Arrival: Advising When They Don t Have A Cause of Action, by Dan Pozza, 2005 State Bar College Summer School, Chapter 12; (5) Creative And Innovative Marital Causes of Action, by Cheryl L. Wilson, James E. Farris, Pamela E. George, and Robert J. Piro, 2005 New Frontiers In Marital Property Law, Chapter 2; and (6) Economic And Physical Torts [What s Left After Schlueter?] by John Nichols, Sr., 2001 Advanced Family Law Course, Chapter 23. This paper is basically composed of four appendices: Appendix 1 Covers appendices from Susan Myres and Tara Luedke-Mora s outstanding paper on Drafting Third Party Actions - Three s A Crowd - Drafting Third Party Actions presented at the 2002 State Bar of Texas Advanced Family Law Drafting Course. 1 Appendix 2 - covers the pleadings for causes of action not normally found in the Texas Family Law Practice Manual-2008 Edition that are used by Nichols Law, P.L.L.C. The pleadings also contain citations to supporting authority. Appendix 3 - covers the charge of the court on the causes of action with authority supporting the submission. It is recommended that the charge of the court also be used in non-jury cases, with citation to the supporting authority, since the legal issues are the same, whether the finder-of-fact is a judge or a jury. Appendix 4 - covers fiduciary litigation, including a discussion of the conflicts and overlaps in fiduciary duties and obligations that can and do occur when a spouse wears several fiduciary hats at the same time. II. INTENTIONAL AND UNINTENTIONAL TORTS. In distinguishing between intentional and unintentional torts, the Supreme Court of Texas in Reed Tool Co. v. Copelin, 686 S.W.2d 404 (Tex. 1985) stated at p. 404, [T]he fundamental difference between negligent injury or even grossly negligent injury, and intentional injury, is the specific intent to inflict injury. The Restatement (Second) of Torts defines intent to mean that the actor desires to have caused consequences of his act or that he believes that the consequences are substantially certain to result from it. Sec. 8A (1965). A. Elements Intentional Torts. The elements of intentional torts are: (1) intentional conduct that breaches a recognized duty; and (2) actual damages. Practice note - foreseeability is not required in determining damages for an intentional or knowing tort if recovery is sought for the immediate and direct consequences of the tort. Thompson v. Hodges, 237 S.W.2d 757, 759 (Tex. Civ. App. San Antonio 1951, writ ref d n.r.e.). B. Elements Unintentional Torts. The elements of unintentional torts are: (1) unintentional conduct that breaches a recognized duty; (2) foreseeability [proximate or producing cause]; and (3) actual damages.
20 C. Redressing Wrongs. All torts discussed herein necessarily include the above stated elements, depending on whether they are intentional or unintentional torts. An injury without a wrong does not create a cause of action, but to give a right or redress there must not only be an injury but it must have been occasioned by a commission of a legal wrong or violation of a legal right and breach of a legal duty. State v. Brewer, 169 S.W.2d 468 (Tex. 1943). A tort is a wrongful act [generally] not involved in a breach of contract for which a civil action may be maintained. Smith v. International Printing Pressman and Assistants Union of North America, 190 S.W.2d 769 (Tex. Civ. App. Dallas, 1946), reversed 198 S.W.2d 729 (Tex. 1946). A tort may be based on misfeasance or omission to act, as well as an act of commission. Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508 (Tex. 1947). D. Res Judicata and Collateral Estoppel Distinction. Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984). "Res judicata is frequently characterized as claim preclusion because it bars litigation of all issues connected with a cause of action or defense which, with the use of diligence, might have been tried in a prior suit. [citing case] When a prior judgment is offered in a subsequent suit in which there is identity of parties, issues and subject matter, such judgment is treated as an absolute bar to retrial of claims pertaining to the same cause of action on the theory that they have merged into the judgment. [citing cases].... Collateral estoppel is narrower than res judicata. It is frequently characterized as issue preclusion because it bars re-litigation of any ultimate issue of fact actually litigated and essential to the judgment in a prior suit, regardless of whether the second suit is based upon the same cause of action.... A party suing to invoke the doctrine of collateral estoppel must establish (1) the facts sought to be litigated were fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and, (3) the parties were cast as adversaries in the first action." "Res judicata, or merger and bar, precludes re-litigation of the same claim [cause of action] while collateral estoppel precludes re-litigation of the same issue." McCoy v. Cook, 419 N.W.2d 44, 46 (Mich. App. 1988). Therefore, res judicata = claim preclusion, and collateral estoppel = issue preclusion. In K. F. v. Faour, 762 S.W.2d 361 (Tex. App. Houston [1st Dist.] 1989) a sexual abuse claim was not precluded because neither the pleadings nor the terms of the divorce decree showed that the issue was asserted and determined in the divorce court. See, contra, Brinkman v. Brinkman, 966 S.W.2d 780 (Tex. App. San Antonio 1998, pet. denied) and criticism of Brinkman in Brinkman v. Brinkman: Where Res 2 Judicata has gone too far, 13 BYU J. Pub. L. 379, 390 (1999) E. Procedural Bars And Defenses To Bringing Actions And Limiting Damages. 1. Divorce Cases. Tex. Fam. Code Ann provides for a court ordered equitable [ just and right ] division of marital property having due regard for the rights of each party and any children of the marriage. This standard for equitable distribution has existed in Texas since 1841, when Texas was still a Republic, and which gives the court wide discretion in dividing the estate of the parties, correctable only when an abuse of discretion has been shown. Murff v. Murff, 615 S.W.2d 696 (Tex. 1981); Hedtke v. Hedtke, 112 Tex. 404, 248 S.W.2d (1923). As such, the trial court may consider any number of factors, including the economic, financial and social histories of the parties. If a two, four or even ten year statute of limitations applied to the equitable division of property, inequitable results would occur. Since there is no statute of limitations for bringing an action for divorce of a formal or informal marriage, a good faith argument can be made that no statute of limitations should be applied to the equitable division of property by the trial court at the time of divorce. No cases have been found where a statute of limitations was applied in the context of a division of property under Tex. Fam. Code Ann , or any of its predecessors statutes. However, in post-divorce divisions of undisclosed or undivided property, Tex. Fam. Code Ann provides for a two year statute of limitations and states: (a) a suit under this subchapter must be filed before the second anniversary of the date a former spouse unequivocally repudiates the existence of the ownership interest of the other former spouse and communicates that repudiation to the other former spouse; and, (b) the two-year limitations period is tolled for the period that a court of this state does not have jurisdiction over the former spouses or over the property. 2. Non-Divorce Cases. Several appellate courts in non-divorce cases have held that an independent action for breach of fiduciary duty is controlled by the two year statute of limitations. Clade v. Larsen, 838 S.W.2d 277, 281 (Tex. App. Dallas 1992, writ denied); El Paso Associates, Ltd. v. J.R. Thurman & Co., 786 S.W.2d 17, 20 (Tex. App. El Paso 1990, no writ); Redman Industries Inc. v. Couch, 613 S.W.2d 787 (Tex. App. Houston [14th Dist.] 1981, writ ref d n.r.e.). However, one court held that since a claim for fraud or misrepresentation ordinarily is a claim for a debt and is governed by a four year statute of limitations, a breach of fiduciary duty claim subsumes a claim of constructive fraud.
21 Therefore, the Corpus Christi Court of Appeals held a breach of fiduciary duty claim is also governed by a four year statute of limitations. In re Estate of Herring, 970 S.W.2d 583 (Tex. App. Corpus Christi 1998, no writ). But see Maxon v. Travis County Rent Account, 21 S.W. 3d 311 (Tex. App. - Austin 1999, pet. dism d by argmt) where the Austin Court of Appeals declined to follow Herring s four year statue of limitations ruling in breach of fiduciary duty cases and applied the two year statute of limitations in breach of fiduciary duty cases under Tex. Civ. Prac. & Rem. Code, This issue has not been settled by the Texas Supreme Court. In Little v. Smith, 943 S.W.2d 414 (Tex. 1997) the Court addressed a case in which the issue of the statute of limitations was applicable. Unfortunately the period of time was well beyond the four year statute of limitations and the asserting party probably cared little as to whether the two or four year statute applied. The Court did not address this issue. 3. Limitations of Actions. A primary concern is whether marriage tolls the bringing of an interspousal tort action. Whitley v. Whitley, 436 S.W.2d 607 (Tex. Civ. App. Houston 1968) [alienations action - fact that plaintiff was married did not toll statute of limitations after cause of action arose]. It can be argued in "fiduciary torts" that as long as a fiduciary relationship exists between spouses, the statute of limitations is tolled until discovery of the tort [conversion, etc.], much the way it is in other fiduciary relationships, such as attorney and client or stockbroker and client. Pace v. McEwen, 574 S.W.2d 792 (Tex. Civ. App. El Paso 1978, writ ref'd n.r.e.)[stockbroker]. See Little v. Smith, supra and Belt v. Oppenheimer, Blend, Harrison, and Tate, Inc., 192 S.W. 3d 780 (Tex. 2006). However, these tort suits are generally based on deceptive, fraudulent conduct. Practice Note: Since the disability of coverture in domestic tranquility arguments does not prevent the running of limitations in interspousal property and contract actions [Dyer v. Dyer, 616 S.W.2d 663, 665 (Tex. Civ. App. Corpus Christi 1981, no writ)], it is difficult to see how suits based in tort would have the effect of destroying domestic tranquility. The disability of coverture argument was rejected in Whitley v. Whitley, 436 S.W.2d 60 (Tex. Civ. App. Houston 1968, no writ) [alienation action]. The general rule is that a cause of action sounding in tort accrues when the tort is completed, that is, the act is committed and damage is suffered. Atkins v. Crosland, 417 S.W.2d 150 (Tex. 1967). This rule is supported by the public policy expressed in 12 statutes of limitations, which favor repose and discourages the assertion of stale demands. McClung v. Johnson, 620 S.W.2d 644 (Tex. Civ. App. Dallas 1981, writ ref'd n.r.e.) Defense to Limitations The Relation Back Doctrine. The doctrine of "relation back" has been codified in Texas and states: "If a filed pleading relates to a cause of action, cross action, counterclaim, or defense that is not subject to a plea of limitation when the pleading is filed, a subsequent amendment or supplement to the pleading that changes the facts or grounds of liability or defense is not subject to a plea of limitation unless the amendment or supplement is wholly based on a new, distinct, or different transaction or occurrence." Tex. Prac. & Rem. Code This is effective for pleading additional causes of action after discovery is completed. See Peek v. De Barry, 871 S.W.2d 520 (Tex. App. San Antonio 1994, writ denied) and Cain v. State, 882 S.W.2d 515 (Tex. App. Austin 994, no writ). 5. Defense to Limitations- Aggravation of Pre- Existing Conditions. Most domestic torts will not be of the "continuing" variety; for example, an assault and battery has a beginning and end; beginning when the act or event occurs and the ending when damage is suffered. Most often domestic torts of this variety will go through periods of quiescence followed by a period of new assaults. Flashbacks from prior assaults generally occur and make worse the effects of new assaults. In Texas, the tortfeasor takes his victim as he finds him. Padget v. Gray, 727 S.W.2d 706, 711 (Tex. App. Amarillo 1987, no writ). As the court stated in Thompson v. Quarles, 297 S.W.2d 321, 329 (Tex. Civ. App. Galveston 1956, writ ref'd n.r.e.), when quoting from 15 Am. Jur., Damages, Sec. 81, page 490: "The general rule seems to be that where the result of the accident is to bring into activity a dormant or incipient disease, or one to which the injured person is predisposed, the defendant is liable for the entire damages which ensue, for it cannot be said that the development of the disease as a result of the injury was not the consequence which might naturally or ordinarily follow as a result of the injury, and therefore, the negligent person may be held liable therefor. In other words, if a latent condition itself does not cause pain, suffering, etc., but that condition plus an injury caused such pain, the injury, and not the latent condition, is the proximate cause." [emphasis added]
22 Practice Note: This reasoning would also apply to intentional torts. 6. Defense to Limitations Discovery Rule. Fraud, be it actual or constructive, can be inherently undiscoverable. A breach of fiduciary duty claim is subject to the discovery rule. Little v. Smith, 943 S.W.2d 414, 420 (Tex. 1997). Where there has been a breach of fiduciary duty, the statute of limitations does not begin to run until the claimant knew, or should have known, of the facts in existence or facts that in the exercise of reasonable diligence would have led to discovery of the wrongful act. See also Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 394 (1945); Belt v. Oppenheimer, 192 S.W. 3d 780 (Texas 2006) 7. Defense to Limitations Continuing Tort. Conceptually, a continuing tort is a tolling provision allowing the avoidance of a limitation defense. Twyman v. Twyman, 790 S.W.2d 819, 820 (Tex. App. Austin 1990), reversed on other grounds, 855 S.W.2d 619 (Tex. 1993). A matter in avoidance of the statute of limitations, not raised affirmatively by the pleadings is deemed waived. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988) (stating this principle in the context of a case dealing with the discovery rule). A continuing tort involves both continuing wrongful conduct and continuing injury. Upjohn Co. v. Freeman, 885 S.W.2d 542 (Tex. App. Dallas 1994, writ denied). False imprisonment, for example is a continuing tort for which a cause of action accrues when the detention ceases. Adler v. Beverly Hills Hospital, 594 S.W.2d 153, 156 (Tex. Civ. App. Dallas 1980, no writ). Traditionally, continuing tort theories apply to such causes fo action as nuisance, trespass and false imprisonment, Jim Arnold Corp. v. Bishop, 928 S.W.2d 761, (Tex. App. Beaumont 1996, no writ) and intentional infliction of emotional distress. Newton v. Newton, 895 S.W.2d 503, 506 (Tex. App. Fort Worth 1995, no writ) (verbal abuse). A continuing tort involves wrongful conduct inflicted over a period of time that is repeated until desisted, and each day creates a separate cause of action. See Two Pesos, Inc. v. Gulf Ins. Co., 901 S.W.2d 495, 500 (Tex. App. San Antonio 1983, writ ref d n.r.e.) A cause of action for continuing tort does not accrue until the defendant s tortious act ceases. See Tectonic Realty Ins. Co. v. CNA Lloyd s of Texas Ins. Co., 812 S.W.2d 647, 654 (Tex. App. Dallas 1991, writ denied). Because continuing tort causes of action are grounded in the idea of a continuing injury to the Plaintiff, tort claimants may sue for acts that occurred beyond the two-year statute of limitations, as long as the cause of action accrued within the applicable statute of limitations. Twyman v. 4 Twyman, 790 S.W.2d 819, 821 (Tex. App. Austin 1990), reversed on other grounds, 855 S.W.2d 619 (Tex. 1993). G. Schlueter, Before and After. 1. Introduction. This section discusses the impact of Schlueter v. Schlueter, 975 S.W.2d 584 (Tex. 1998) on Texas family law practice. 2. Reference Material. The author has found the following reference material by other authors to be of excellent quality and has borrowed liberally from these comments and papers. The author wishes to express appreciation to these legal writers for their contributions to this paper and especially to the late Ted Terry, Kristin Proctor, and James LaRue for gracious and generous permission to use excerpts from their paper: Ted Terry, Kristin Proctor, and James LaRue, Breach of Fiduciary Duty and Non-Physical Tort Claims, 24th Annual Advanced Family Law Course, (1998), Tab VV.; Bradley L. Adams, The Doctrine of Fraud on the Community, 49 BAYLOR L. REV 445, (1997); Barbara Anne Kazen, Division of Property at the Time of Divorce, 49 BAYLOR L. REV 417, (1997); and Tom Oldham, Special Property Problems, 23rd Annual Advanced Family Law Course, (1997). 3. Schlueter v. Schlueter - Briefed. a. Question Answered. Schlueter answered the question of what remedies are available to a spouse alleging fraud on the community committed by the other spouse. b. Facts. The husband transferred various community assets to his father shortly before he filed for divorce. The wife brought independent tort claims against her husband and father-in-law, seeking damages for fraud, breach of fiduciary duty and conspiracy in her counterclaim for divorce. Based on favorable jury findings the trial court ordered a disproportionate division of the community estate in favor of the wife, and rendered judgment for the wife against the husband and his father for actual and exemplary damages. Holding that a tort cause of action for fraud on the community exists independent of a divorce proceeding, the Austin Court of Appeals affirmed, 929 S.W.2d 994. The Texas Supreme Court (hereinafter referred to as the Court ) granted petition for review to resolve the conflict among the Courts of Appeals on this question.