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Elements.  It is not settled whether there is actually a cause of action for aiding and abetting in Texas. In 1996, The Texas Supreme Court considered an “aiding and abetting” case and discussed the probable elements of the claim without actually indicating whether the tort is recognized in Texas. See Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996). In 2017, the Texas Supreme Court again reiterated that it had not recognized this as a cause of action.   See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 224 (Tex. 2017).  In Juhl, the Court indicated the elements for an aiding and abetting claim would be: (1) the primary actor committed a tort; (2) the defendant had knowledge that the primary actor’s conduct constituted a tort; (3) defendant had intent to assist the primary actor; (4) defendant gave the primary actor assistance or encouragement; and (5) defendant’s conduct was a substantial factor in causing the tort. Id.  Other courts since that time have used the Juhl elements when considering such a claim. See e.g., Immobiliere Jeuness Establissement v. Amegy Bank Nat'l Ass'n, 525 S.W.3d 875, 882 (Tex. App. 2017).  Perhaps the Texas Supreme Court will get an oppourtunity to decide the issue in a recent case where the court of appeals refused to recognize this tort of aiding and abetting.  See Hampton v. Equity Tr. Co., 607 S.W.3d 1, 5 (Tex. App.-- Austin 2020, pet. filed).   The federal Fifth Circuit Court of Appeals has held that aiding and abetting does not exist as a cause of action in Texas and has refused to recognize such a claim because federal courts exceed the bounds of its legitimacy in fashioning new causes of action not yet recognized by state courts.  In re DePuy Orthopaedics, Inc., Pinnacle Hip Implant Prod. Liab. Litig., 888 F.3d 753, 782, 781 (5th Cir. 2018) .

Statute of Limitations.  Statute of limitations refers to the time within which a claim must be brought or the claim will be barred as a matter of law. Cadle Co. v. Wilson, 136 S.W.3d 345, 350 (Tex. App.- Austin 2004, no pet.).  Normally the limitations period begins when cause of action accrues. A cause of action accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex. 2011) (op. on reh'g).  There is a two year statute of limitations for abuse of process claims.   Patrick v. Howard, 904 S.W.2d 941, 943–44 (Tex. App. -- Austin 1995, no pet.)(citing Hatch v. Reliance *944 Ins. Co., 758 F.2d 409, 414–15 (9th Cir.1985)(applying Texas law).

Aiding and Abetting

© 2020 Mark Courtois

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