Cass Bingham, et al v. J. C. Lavender, et ux--Appeal from 18th District Court of Johnson County

IN THE

TENTH COURT OF APPEALS

NO. 10-90-149-CV

CASS BINGHAM, ET AL,

Appellants

v.

J. C. LAVENDER, ET UX,

Appellees

From the 18th District Court

Johnson County, Texas

Trial Court # 327-85

OPINION ON REHEARING

In our opinion on the merits, we held that the Binghams waived their limitation defense when they failed to obtain a finding on the discovery rule. They correctly point out in their motion for a rehearing that this misplaced the burden of proof. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988) (holding that the party relying on the discovery rule must plead and obtain a favorable finding of its applicability).

Acknowledging our error in this regard, we nevertheless reiterate our holding that the Binghams waived their limitation defense. They had the initial burden of pleading and conclusively establishing that the tort of breach of good faith and fair dealing was barred by limitation. See id. at 517. This required them to establish, either by conclusive evidence or a fact finding, when the tort accrued to demonstrate the bar of limitation. See Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex. App. Houston [1st Dist.] 1984, writ ref'd n.r.e.). Then and only then would the Lavenders have the burden of pleading, proving, and obtaining a favorable finding on the discovery rule to avoid the limitation defense. See Woods, 769 S.W.2d at 518. They would have nothing to confess and avoid until limitation was conclusively established as a bar. See id. at 517 (holding that the discovery rule is a plea in confession and avoidance).

The jury found that the partnership ceased on April 27, 1983. The Lavenders never asserted or attempted to prove that ending the partnership was the tortious act. Instead, they alleged that the breach of good faith and fair dealing occurred when in the "latter part of 1983" the Binghams refused to settle the partnership's affairs. As we noted in the opinion on the merits, the evidence did not conclusively establish the date the Binghams refused to settle the partnership's affairs, which under the evidence could have been before or after August 8, 1983.

Thus, to establish the two-year statute as a conclusive bar, the Binghams had the initial burden of obtaining a finding that the tort action accrued, if at all, before August 8, 1983. See Woods, 769 S.W.2d at 517; Grady, 683 S.W.2d at 845. They waived limitation as an affirmative defense when they failed to obtain the favorable finding. See Tex. R. Civ. P. 279. Because limitation was not conclusively established, the Lavenders did not have to rely on the discovery rule to avoid limitation as a bar. See Woods, 769 S.W.2d at 518. We overrule points four through six and point eleven for these reasons and deny the motion for a rehearing.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Motion for rehearing denied

Opinion issued and filed February 19, 1992

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