Question and Instruction on Statute of Limitations Existence of Fraudulent DRAFT

Transcription

1 PJC Question and Instruction on Statute of Limitations Existence of Fraudulent Concealment Did Don Davis fraudulently conceal [insert wrong concealed] from Paul Payne? To prove fraudulent concealment, Paul Payne must show that Don Davis actually knew a wrong had occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong. Answer Yes or No. Answer: When to use. PJC is appropriate to submit the plaintiff s affirmative defense of fraudulent concealment as a plea in confession and avoidance to a defense to the defendant s assertion of the statute of limitations. This question should be predicated on a Yes answer to the question regarding the wrong alleged. Source of question and instruction. PJC is derived from Shell Oil Co. v. Ross, 356 S.W.3d 924, 927 (Tex. 2011) (quoting Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001)). 1

2 PJC Question on Statute of Limitations Discovery of Fraudulent Concealment If you answered Yes to Question [312.1], then answer the following question. Otherwise, do not answer the following question. By what date should Paul Payne, in the exercise of reasonable diligence, have discovered the fraudulent concealment? Answer with a date in the blank below. Answer : When to use. PJC is appropriate to use if the jury has found that the defendant engaged in fraudulent concealment. The question is designed to determine the date on which the plaintiff discovered or should have discovered the fraudulent concealment and should be predicated on a Yes answer to PJC Source of question. PJC is derived from Hooks v. Samson Lone Star, L.P., 457 S.W.3d 52, (Tex. 2015); Shell Oil Co. v. Ross, 356 S.W.3d 924, 927 (Tex. 2011) (quoting BP America Production Co. v. Marshall, 342 S.W.3d 59, 67 (Tex. 2011)); and Kerlin v. Sauceda, 263 S.W.3d 920, 925 (Tex. 2008). See also the current edition of State Bar of Texas, Texas Pattern Jury Charges Business, Consumer, Insurance & Employment PJC

3 Distinct damages claims. If the plaintiff has multiple claims involving distinctly different conduct and the limitations defense is raised, the Committee recommends that separate liability, damages, and limitations questions be submitted. 3

4 PJC Question on Statute of Limitations Discovery Rule By what date should Paul Payne, in the exercise of reasonable diligence, have discovered the [event(s) giving rise to the plaintiff s claim]? Answer with a date in the blank below. Answer: When to use. PJC should be used when the discovery rule is submitted to the jury as a plea in confession and avoidance to a statute-of-limitations defense. The events that give rise to the plaintiff s claim may be either the conduct or the injury. See Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 207 (Tex. 2011). If the discovery rule is submitted in terms of the plaintiff s discovery of a wrongfully caused injury, it may be necessary to define injury and wrongful acts ; otherwise, the jury might be impermissibly allowed to speculate on the meanings of those terms. Source of question. PJC is derived from Willis v. Maverick, 760 S.W.2d 642, 647 (Tex. 1988). See also the current edition of State Bar of Texas, Texas Pattern Jury Charges Business, Consumer, Insurance & Employment PJC , Application of the discovery rule. The discovery rule applies only when the nature of the plaintiff s injury is both inherently undiscoverable and objectively verifiable. Shell Oil Co. v. Ross, 356 S.W.3d 924, 930 (Tex. 2011) (quoting Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001)); see also HECI v. Neel, 982 S.W.2d 881, 886 (Tex. 1998). An injury is 4

5 inherently undiscoverable if by its nature, it is unlikely to be discovered within the prescribed limitations period despite due diligence. Ross, 356 S.W.3d at 930 (quoting S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996)). The legal question of whether an injury is inherently undiscoverable is determined on a categorical basis. Ross, 356 S.W.3d at 930. See also Cosgrove v. Cade, No , 2015 WL , at *2 (Tex. June 26, 2015). Distinct damages claims. If the plaintiff has multiple claims involving distinctly different conduct and the limitations defense is raised, the Committee recommends that separate liability, damages, and limitations questions be submitted. 5

6 PJC Question and Instruction on Repudiation Was Larry Lessee s failure, if any, to comply with the oil and gas lease excused? A lessee s failure to comply with the terms of an oil and gas lease may be excused by the lessor s repudiation of the lease. A lessor repudiates an oil and gas lease when the lessor clearly and unequivocally challenges the lessee s title in and to the interest created by the lease. Answer: Yes or No. Answer: When to use. PJC is appropriate to use when a lessee claims its failure to comply with the lease is excused by the lessor s repudiation of the oil and gas lease and should be predicated on a Yes answer to the appropriate question. Repudiation in the context of the oil and gas lease is a defense to either a breach of lease or a lease termination claim. Source of question and instruction. PJC is derived from Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 20 (Tex. 2008); Ridge Oil Co. v. Guinn Investments, Inc., 148 S.W.3d 143, 157 (Tex. 2004); Kothmann v. Boley, 308 S.W.2d 1, 4 (Tex. 1958); and Cheyenne Resources, Inc. v. Criswell, 714 S.W.2d 103, 105 (Tex. App. Eastland 1986, no writ). 6

7 PJC Question and Instruction on Statutory Defense to Withholding of Payments and Prejudgment Interest Was [Don Davis/Polly Payor] s withholding of payment [and/or] prejudgment interest excused? [Don Davis/Polly Payor] is excused if on [date payment due] there was 1. a title dispute that would affect distribution of payment[s]; or 2. a reasonable doubt that [Paul Payne/Perry Payee] a. sold or authorized sale of [Paul Payne/Perry Payee] s share to [purchaser], or b. has clear title to the interest of the proceeds of production; or 3. a title opinion that places at issue title, identity, or whereabouts of [Paul Payne/Perry Payee], and [Don Davis/Polly Payor] made a reasonable request for curative information that has not been satisfied by [Paul Payne/Perry Payee]. Answer Yes or No. Answer: When to use. PJC is appropriate for use in payment disputes under Texas Natural Resources Code sections If there is a dispute regarding whether payment was late, see PJC on untimely payment of royalty under the Texas Natural Resources Code. 7

8 Source of question and instruction. PJC is derived from Tex. Nat. Res. Code (1) (2), (b), (b); Concord Oil Co. v. Pennzoil Exploration and Production Co., 966 S.W.2d 451, 461 (Tex. 1998); and Headington Oil Co., L.P. v. White, 287 S.W.3d 204, (Tex. App. Houston [14th Dist.] 2009, no pet.). 8

9 PJC Question and Instruction on Bona Fide Purchaser Defense Is Don Davis a bona fide purchaser of the real property? A bona fide purchaser is one who purchases real property in good faith for valuable consideration without notice of a third-party claim to the property. [Insert additional instructions regarding notice, if appropriate.] Answer Yes or No. Answer: When to use. PJC is appropriate to use when the defendant asserts the defense of bona fide purchaser. Source of question and instruction. PJC is derived from Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001) (per curiam); Westland Oil Development Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 908 (Tex. 1982); NRG Exploration, Inc. v. Rauch, 671 S.W.2d 649, 653 (Tex. App. Austin 1984, writ ref d n.r.e.); Pierson v. McClintock, 78 S.W. 706, (Tex. Civ. App. Galveston 1904, no writ); and Tex. Prop. Code Notice. Notice of a third party s claim may be actual or constructive: Actual notice literally means express or positive personal information or knowledge directly communicated to the person to be affected. In a more 9

10 comprehensive sense, the term also embraces knowledge of all those facts which reasonable inquiry would have disclosed, the duty of inquiry extending only to matters that are fairly suggested by the facts really known. In other words, whatever fairly puts a person upon inquiry is actual notice of the facts which would have been discovered by reasonable use of the means at hand. Flack v. First National Bank, 226 S.W.2d 628, (Tex. 1950). See also Nguyen v. Chapa, 305 S.W.3d 316, 323 (Tex. App. Houston [14th Dist.] 2009, pet. denied) (citing Madison, 39 S.W.3d at 606). Generally, the question of whether a party has notice is a question of fact; it becomes a question of law only when there is no room for ordinary minds to differ about the proper conclusion to be drawn from the evidence. O Ferral v. Coolidge, 228 S.W.2d 146, 148 (Tex. 1950); Morris v. Reaves, 580 S.W.2d 891, 893 (Tex. Civ. App. Houston [14th Dist.] 1979, no writ). 10