United States Court of Appeals,

Fifth Circuit.

No. 92-1890

Summary Calendar.

COLONIAL PENN INSURANCE COMPANY, Plaintiff-Appellee,

v.

MARKET PLANNERS INSURANCE AGENCY, INC. and Jimmy Whited, DefendantsAppellants.

Sept. 14, 1993.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.

PER CURIAM:

I. FACTS AND PROCEDURAL HISTORY

In 1985, the plaint iff, Colonial Penn Insurance Company (Colonial Penn), through its

administering agent, American Owners and Operators (AOO), contracted with the defendants,

Market Planners Insurance Agency and its corporate representative Jimmy Whited (here inafter

collectively referred to as Market Planners), for it to sell Colo nial Penn's insurance policies. The

parties agreement provided that Market Planners would s ell the insurance policies and collect the

premium payments and then remit the collected premiums to AOO, which in turn would remit them

to Colonial Penn. Commencing in 1986, Colonial Penn and AOO's relationship deteriorated, and

ultimately so did the relationship between Colonial Penn and Market Planners.

Colonial Penn sued Market Planners in October 1991 alleging that Market Planners collected

premium payments totalling approximately $150,000, but did not remit them. In response, Market

Planners asserted that the affirmative defense of statute of limitations barred Colonial Penn's claim

in that Colonial Penn knew or should have known of the facts giving rise to its claim i n 1986.

Colonial Penn countered that it did not know of Market Planners' alleged fraud until November 1989

or later, because Market Planners refused to account for the premium payments that it had collected.

In a bench trial, the district court concluded that there was an agency relationship between1 Willis v. Maverick, 760 S.W.2d 642, (Tex.1988), cited by the district court as the basis of its

conclusion of law as to the statute of limitations, notes that "breach of the duty to disclose is

tantamount to concealment," Id. at 645, (citing McClung v. Johnson, 620 S.W.2d 644

(Tex.Civ.App.—Dallas 1981, writ ref'd n.r.e.)). Market Planners and its principal, Colonial Penn; and that such relationship imposed a fiduciary duty

on Market Planners to disclose to Colonial Penn facts material to the transactions between the parties,

which Market Planners failed to do. The district court then held that the statute of limitations did not

bar Co lo nial Penn from bringing its cause of action and awarded it $158,067.81 in damages and

prejudgment interest.

II. DISCUSSION

1. Colonial Penn Met its Pleading Burden

The district court held that the statute of limitations did not bar Colonial Penn's suit because

Market Planners fraudulently concealed facts which were material to the cause of acti on, and that

under Texas law a fiduciary's failure to disclose facts material to the relationship tolls the statute of

limitations. 1 On appeal, Market Planners takes issue with this ruling because, it contends Colonial

Penn pleaded neither the "discovery rule" nor fraudulent concealment in avoidance of the statute of

limitations defense asserted by Market Planners. Next, Market Planners co nt ends that the district

court ignored evidence that Colonial Penn knew or should have known of its cause of action in 1986.

We hold that Colonial Penn met its pleading burden in countering Ma rket Planners'

affirmative defense of statute of limitations. We begin by noting that, "[w]hile Texas law does supply

the applicable statute of limitations in this diver sit y case, "federal law governs the pleading

requirements of a case in federal court.' " W ellborn v. Sears, Roebuck & Co., 970 F.2d 1420, 1425

(5th Cir.1992) ( quoting Simpson v. James, 903 F.2d 372, 375 (5th Cir.1990)). As to Colonial Penn's

failure to plead the discovery rule, the law is clear that, while the discovery rule must be specifically

pleaded in Texas State Court to avoid the statute of limitations, it need not be specifically pleaded

in federal court. W

ellborn, 970 F.2d at 1425. Rather, "[u]nder Rule 8 of the Federal Rules of Civil

Procedur e, it is eno ugh that the plaintiff plead sufficient facts to put the defense on notice of the

theories on which the complaint is based." Simpson, 903 F.2d at 375.2 In paragraph 89 of its complaint, for example, Colonial Penn alleges that Market Planners

breached its duty as an agent and a fiduciary, by "failing to disclose all material information with

respect to the sale of Colonial Penn Policies and the premium arising from those sales, and by

failing to account for money received by Market Planners on behalf of plaintiff...."

3 We review a district court's findings of fact for clear error and its conclusions of law de novo.

Chandler v. City of Dallas, 958 F.2d 85 (5th Cir.1992). In the present case, the district court found that Colonial Penn alleged facts sufficient to give

notice of its reliance on the discovery rule, namely, that it did not discover its cause of action sooner

because Market Planners concealed information and refused to account for premiums payable to

Colonial Penn. 2 After reviewing the pleadings, we see no reason to disturb t he district court's

conclusion that Colonial Penn's pleadings notified Marke t Planners of its intended reliance on the

discovery rule. For the same reason, we hold that Market Planners was notified of Colonial Penn's

intent to rely on fraudulent concealment.

2. Findings of Fact and Conclusions of Law

As for its second theory, Market Planners argues that the trial court i gnored evidence that

Colonial Penn knew or should have known of its potential cause of action against Market Planners

five years before it filed suit. Because the district court made inconsistent statements of the law, we

are unable to determine whether the district court properly applied it, and therefore we remand on

this issue. 3

Market Planners presented evidence at trial that Colonial Penn knew or should have known

of the facts surrounding its cause of action in 1986, and therefore, under t he "discovery rule" in

Texas, the statute of limitations barred Colonial Penn's suit, which was not filed until October 1991.

In response to t his argument, the district court in its oral findings of facts and conclusions of law

stated:

[a]s I indicated at the beginning of my remarks, there is some plausibilit y to that position, and

I think that a reasonable judge could accept that argument [that Colonial Penn knew or should

have known of the fact s est ablishing its cause of action in 1986], but from the cases that I

have already cited as well as others that I have not, it seems to me that that is not the law in

Texas when one is dealing with a fiduciary relationship....

The district court apparently concluded instead that, under Texas law, the statute of limitations on

an action by a principal against a fiduciary is tolled until the fiduciary discloses to the principal thematerial facts establishing its cause of action, regardless of the principal's knowledge.

Later, the district court stated "we have an apparent failure on the part of the agent to make

the kinds of full and complete disclosure that are contemplated by a fiduciary relat i onship or

confidential relationship and therefore limitations do[es] not begin to run until that disclosure is made

or until the client or in this instance the principal otherwise actually knows that there is something to

sue for."

The district court cited the Texas Supreme Court case of Willis v. Maverick, 760 S.W.2d 642

(Tex.1988) as support for its conclusion that limitations had not run. Apparently, the district court

understood Willis to h o ld t hat the limitations period does not begin to run until the fiduciary fully

discloses the facts that it had a duty to disclose, and that would have alerted the principal to its cause

of action, regardless of the principal's knowledge. Accordingly, the trial court presumably believed

it was not relevant whethe r Co lonial Penn knew or should have known of facts alerting it to its

potential cause of action against Market Planners in 1986.

If that was the distri ct court 's understanding of Texas law based on W illis, we hold it

misinterpreted the holding in Willis. In W illis, the Texas Supreme Court he l d that the statute of

limitations does not begin to run in an attorney malpractice suit until the claimant discovers or should

have discovered through the exercise of reasonable care and diligence the facts forming his cause of

action. W illis, 760 S.W.2d at 646. It also stated in dicta that fraudulent concealment tolls the statute

of limitations until the tortious conduct is discovered, but that the plaint iff waived the issue by not

alleging it in the trial court. In our view, all the court in W il lis did is merely restate the

long-established "discovery rule" for tolling limitations, and apply it in the attorney malpractice

context based on the fiduciary nature of the attorney-client relationship.

Other Texas cases make clear that fraudulent concealment does not trump the discovery rule,

but is merely a factor to consider in determining when a plaintiff in a fiduciary relationship knew or

should have known of the facts giving rise to its cause of action. As succinctly stated by the Texas

Supreme Court, "[t]he estoppel effect of fraudulent concealment ends when a party learns of facts,

conditions, or circumstances which would cause a reasonably prudent person to make inquiry, which,if pursued, would lead to discovery of the concealed cause of action. K now ledge of such facts is in

law equivalent to know ledge of t he cause of action. " B orderlon v. Peck, 661 S.W.2d 907

(Tex.1983) (emphasis added); S ee also Seibert v. General Moto rs Corp., 853 S.W.2d 773

(Tex.App.—Houston [14th Dist] 1993) ("[E]ven where the [fraudulent concealment] doctrine is

invoked, a defendant is estopped from relying on the limitations defense only until such time that the

party either learns of the right of action, or should have learned of the right by exercising reasonable

diligence."); A llen v. American Petrofina, Inc., 837 S.W.2d 415, 419 (Tex.App.—Beaumont 1992,

error gran t ed (Tex.1993)) (Limitations "is tolled until the party ... learns of the right of action or

should have learned of the right of action through the exercise of reasonable diligence—provided that

fraudulent concealment is involved.").

In the present case, the district court admitted that it was at least plausible that Colonial Penn

knew of the facts giving rise to its claim against Market Planners in 1986. Our reading of Texas law

regarding the "discovery rule" and the estoppel effect of fraudulent concealment by the fiduciary leads

us to the inescapable conclusion that Texas law does not allow a principal to ignore its knowledge

of a possible cause of action against a fiduciary until the fiduciary itself provides information which

would reveal the principal's claim.

III. CONCLUSION

The touchstone of our analysis under Fed.R.Civ.P. 52(a) is "[w]hether we, as an appellate

court, can obtain a "full understanding of the issues on appeal.' " C handler v. City of Dallas, 958

F.2d 85, 90 (5th Cir.1992 ). To conduct a just and orderly review of those issues, "[w]e must

understand not only the factual, but also the legal reasoning of the district court...." I d. at 89. In the

present case, the district court, in its findings of fact and c o nclusions of law, made inconsistent

statements as to the applicable law; and, therefore, it is possible that it misinterpreted Texas law and

ignored the significance of the contention that Colonial Penn had outside knowledge of its cause of

action against Market Planners in 1986. Because Texas law holds that such knowledge is sufficient

to begin the limitations period even in the case of fraudulent concealment, we VACATE the judgment

of the district court and REMAND to the district court for a factual finding as to whether and whenColonial Penn learned "of facts, conditions, or circumstances which would cause a reasonably prudent

person to make inquiry, which, if pursued, would lead to discovery of the concealed cause of action."

Borderlon 661 S.W.2d at 907; and for a redetermination of the statute of limitations defense in light

thereof.