Opinion
No. 10-05-00135-CV
Opinion Delivered and Filed November 16, 2005.
Appeal from the 19th District Court, McLennan County, Texas, Trial Court No. 2004-4291-4.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
In August 2004, Appellant Sue Walston sued Appellees James H. Stewart and Jim Stewart, Realtors, Inc. (collectively "Stewart") for conspiracy, alleging that Stewart conspired with others to defraud Walston in the allegedly illegal sale of the home of Walston and her ex-husband, Larry Walston. In a partition suit, the trial court had appointed Mr. Stewart as receiver in August 1994. The sale occurred in February 1995, and that same month the trial court discharged Mr. Stewart as receiver. Walston acknowledges in her brief that she discovered Stewart's role in the alleged conspiracy in 1999.
Stewart filed traditional and no-evidence motions for summary judgment. In the traditional motion, Stewart moved for summary judgment on the affirmative defenses of limitations and derived judicial immunity. The trial court granted Stewart summary judgment on these two grounds. Walston appeals. We will affirm.
The statute of limitations for a conspiracy claim is two years. Allen v. City of Midlothian, 927 S.W.2d 316, 322 (Tex.App.-Waco 1996, no writ). Walston asserts, however, that because Stewart was part of a conspiracy that continued to injure her (by the actions of conspirators other than Stewart) within two years of her filing suit against Stewart, her conspiracy claim against Stewart is not barred by limitations. Generally, a cause of action accrues when a wrongful act causes injury. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). An exception is a continuing tort where wrongful conduct is repeated over a period of time, and each wrongful act can create a separate cause of action that does not accrue until the misconduct ends. Dickson Constr., Inc. v. Fidelity Deposit Co., 960 S.W.2d 845, 851 (Tex.App.-Texarkana 1997, no pet.); Upjohn Co. v. Freeman, 885 S.W.2d 538, 542 (Tex.App.-Dallas 1994, writ denied).
But if the alleged continuing tort causes a single, distinct injury — rather than a continuing injury — the continuing-tort doctrine and its tolling rule do not apply. Dickson, 960 S.W.2d at 851; Upjohn, 885 S.W.2d at 543. Stewart's alleged conspiratorial role in the alleged fraudulent and illegal home sale would have caused Walston a single, distinct injury, and the statute of limitations on that claim and injury began to run when the injury was sustained. See Dickson, 960 S.W.2d at 851. Therefore, Walston's conspiracy claim against Stewart is not a continuing tort that avails her of a tolling exception. Furthermore, the continuing-tort rule does not apply to Walston's conspiracy claim against Stewart because she discovered it more than two years before suing Stewart. The limitations exception in the continuing-tort doctrine is rooted in a plaintiff's inability to know that the ongoing conduct is causing her injury; thus, when the plaintiff discovers her injury, the rationale for extending the accrual date no longer applies, and limitations begins to run upon discovery. See Upjohn, 885 S.W.2d at 544.
Because Stewart conclusively established his limitations affirmative defense and no exception applies, the trial court correctly granted Stewart summary judgment on Walston's conspiracy claim. We overrule Walston's first issue, and we need not address her other two issues.
We affirm the trial court's judgment.