NO. 07-04-0384-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

FEBRUARY 23, 2006

______________________________

JERRY AYERS, APPELLANT

V.

JEFF LEE ERICKSON AND CLAYTON HOLCOMB CANTER, APPELLEES

_________________________________

FROM THE 2ND DISTRICT COURT OF CHEROKEE COUNTY;

NO. 2000-04-314; HONORABLE JOE CLAYTON, JUDGE

_______________________________

Before REAVIS and CAMPBELL and HANCOCK, JJ.

MEMORANDUM OPINION

Appellant Jerry Ayers brings this appeal from a summary judgment finding his suit

against appellees Jeff Erickson and Clayton Canter barred by limitations. We will affirm.

The facts relevant to this appeal are undisputed. In August 1997 a collection of

firearms owned by Ayers was taken from his home in a burglary. Ayers promptly reported

the theft to police but had no information on who had taken them. After learning a person

named John Byron Cook had possessed some of the guns after the theft, Ayers filed suit

against Cook in April 2000. During his deposition in November 2000, Cook implicated
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 Cook is not a party to this appeal and his answer does not appear in the record.

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appellees Erickson and Canter in the theft. In 2001, Ayers amended his petition to add

Erickson and Canter as defendants. 

Erickson and Canter filed answers asserting the affirmative defense of limitations.1

They contended Ayers’ claims were barred by the two-year period of limitations set out in

Section 16.003 of the Civil Practice and Remedies Code. Erickson and Canter filed a

motion for summary judgment on their limitations defense. After denying the defendants’

first motion for summary judgment, the trial court granted a supplemental motion reurging

the same ground. The order also severed the claims against Cook, making the summary

judgment final and appealable.

Ayers perfected appeal and now presents three issues for our review. His issues

ask us to determine whether the trial court erred in granting judgment for Erickson and

Canter on the basis of limitations. 

A defendant moving for summary judgment on the basis of an affirmative defense

such as limitations has the burden to prove conclusively all the elements of the affirmative

defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748

(Tex. 1999). If the movant establishes that the statute of limitations bars the action, the

nonmovant must then produce summary judgment proof raising a fact issue on limitations.

Id. In reviewing a summary judgment, we take as true all evidence favorable to the

nonmovant and make all reasonable inferences in the nonmovant's favor. Id. Because
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the propriety of a summary judgment is a question of law, we review the trial court's

decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).

Ayers does not question that section 16.003 of the Civil Practice and Remedies

Code, which requires a plaintiff to commence suit within two years after the cause of action

accrues, applies to claims for conversion and civil conspiracy. His response to the

limitations defense is that the discovery rule and the doctrine of equitable estoppel apply

to toll limitations until he learned the identity of the defendants. In most cases, a cause

of action accrues when a wrongful act causes an injury, even if the fact of injury is not

discovered until later and even if all resulting damages have yet to occur. Childs v.

Haussecker, 974 S.W.2d 31, 36 (Tex. 1998); S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996).

In cases when the nature of the injury incurred is inherently undiscoverable and the

evidence of injury is objectively verifiable, courts have applied the discovery rule as an

“exception to the general rule of accrual.” Childs, 974 S.W.2d at 36-37; accord, S.V., 933

S.W.2d at 4;Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996).

There is no question that Ayers was aware of the theft and resulting injury in August

1997. He offers public policy arguments why accrual of his claims should be tolled until he

has a reasonable opportunity to discover the identity of the tortfeasors. Texas courts have

addressed the question whether a plaintiff’s inability to learn the identity of a potential

defendant tolls limitations. Those courts have consistently held it does not. In Childs, the

Texas Supreme Court held that even under the discovery rule once a person “discovers

or in the exercise of reasonable diligence should have discovered the injury and that it was
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likely caused by the wrongful acts of another,” a cause of action accrues, “even if the

plaintiff does not know the exact identity of the wrongdoer.” 974 S.W.2d at 40. See also

Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344 n.3 (Tex. 1992). That rule was applied

to a claim for conversion in Steinhagen v. Ehl, 126 S.W.3d 623, 626 (Tex.App.–Beaumont

2004, pet. denied).

Some authority exists supporting Ayers’ argument he could not have brought suit

before identifying the proper defendants. See Riston v. Doe, 161 S.W.3d 525 (Tex.App.–

Houston [14th Dist.] 2004, pet. denied) (holding suit against John Doe defendants did not

toll limitations). Ayers contends this result denies him equal protection and due process

of law. We may not consider this contention for two reasons. First, it was not presented

to the trial court. We may not consider as grounds for reversal of a summary judgment

issues not expressly presented to the trial court by written motion, answer or other

response. TEX. R. CIV. P. 166a(c); Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989).

Additionally, Ayers presents no citation to authority or argument applying the wellestablished standards for analyzing claimed deprivations of equal protection and due

process. Tex. R. App. P. 38.1(h); Moser v. Davis, 79 S.W.3d 162, 170 (Tex.App.–Amarillo

2002, no pet.).

Ayers next argues the accrual of his claims was tolled by the defendants’ fraudulent

concealment. When applicable, the equitable doctrine of fraudulent concealment estops

a defendant from relying on limitations as a defense. Cadle Co. v. Wilson, 136 S.W.3d

345, 354 (Tex.App.–Austin 2004, no pet.). The doctrine is limited to those situations in
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 See, e.g., Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983).

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which the defendant has a duty of disclosure, such as a physician to a patient2

 or attorney

to client, or a fiduciary relationship exists. Id. Neither Erickson or Canter had a duty of

disclosure to Ayers and the doctrine of fraudulent concealment is inapplicable. We

overrule Ayers’ first two issues.

By his third issue, Ayers contends that his amended pleadings asserted a claim for

fraud governed by the four-year limitations period of section 16.004 of the Civil Practice

and Remedies Code. We are similarly unable to find in the summary judgment record that

such a contention was presented to the trial court. Neither Ayers’ pleadings nor his

response to the motions for summary judgment advised the trial court that he contended

section 16.004 applied to any of his claims. All of the discussion in the summary judgment

record concerns the two-year statute under section 16.003. His third point presents

nothing for our review, Casso, 776 S.W.2d at 553, and is overruled.

Having overruled each of Ayers’ issues, we affirm the judgment of the trial court. 

James T. Campbell

 Justice