As Donald Rumsfeld teaches, knowledge can be divided into three categories:

• Known knowns; things that we know that we know;
• known unknowns; that is to say, we know there are some things we do not know; and
• unknown unknowns; the ones we don’t know we don’t know.

Another philosopher, Slavoj Zizek, adds a fourth, for parents vis-a-vis the whereabouts of their children after midnight: “The unknown known; that which we intentionally refuse to acknowledge that we know.”

Which category fits the plaintiffs in Tipton v. Brock? You decide, but here is the lesson: If you don’t bother to read your deed, you stand little chance of knowing anything.

In August 1999, Brock and Tipton signed a Farm and Ranch Contract by which Tipton would acquire 519 acres in Montague County. (Lots of Brocks were parties to the contracts and the suit. I refer to them as one for convenience.) All mineral rights were to be retained by Brock. Two months later, the parties executed a Warranty Deed transferring the land,

“LESS, SAVE AND EXCEPT all oil gas and other minerals found in … the above-described tract of land heretofore reserved by predecessors.”

In 2009, Brock sued for reformation of the Warranty Deed based on mutual mistake. Tipton asserted the four-year limitations statute and that the discovery rule did not apply. The jury rendered a verdict for Brock, even though testimony at the trial was that some of them didn’t read the deed, and those who did had what appear (to me, anyway) to be lame reasons why they didn’t understand it for what it was.

The Rules

The Supreme Court of Texas has several things to say on this subject:

• 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.
• The discovery rule is an exception, and defers accrual of a cause of action until the claimant knows or, by exercising reasonable diligence, should know of the facts giving rise to the claim.
• The rule applies when the injury is both inherently undiscoverable and objectively verifiable.
• The injury is inherently undiscoverable if it is a type of injury that is not generally discoverable by the exercise of reasonable diligence.

Fair or Unfair?

Based on the jury verdict, the plaintiffs had a good case that just wasn’t brought timely. Some would call the limitations defense a “loophole”.  But one doesn’t have to be president of the AAPL to conclude that the sellers didn’t exercise diligence when executing the deed.

 For the Lawyers

Jury question No. 7 asked: “By what date did Plaintiff either know or, in exercise of reasonable diligence, should have discovered the original Warranty Deed did not reserve the mineral interests to Plaintiff?” The jury answered “7-8-08”.

The court ruled that Tipton, loser at trial and appellant, was not obligated to lodge an objection or request to that instruction because “inherently undiscoverable” and “objectively verifiable” are legal issues to be decided by the court and not by a jury. Although the jury could have determined when Brock discovered or should have discovered the cause of their injury and whether they exercised due diligence in discovering their cause of injury, it was up to the court, and not the jury, to resolve the question of whether the discovery rule applied.

Why did they wait so long to sue? The opinion gives some clues, but they should have listened to Van Morrison.