Brown v. Arenson

571 S.W.3d 324
CourtCourt of Appeals of Texas
DecidedDecember 20, 2018
DocketNO. 01-17-00515-CV
StatusPublished
Cited by5 cases

This text of 571 S.W.3d 324 (Brown v. Arenson) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Arenson, 571 S.W.3d 324 (Tex. Ct. App. 2018).

Opinion

Michael Massengale, Justice

This is an appeal from a case dismissed based on a limitations defense. The appellants are the adult children of Ernal Lewis, Sr., who died in 1982. The appellants were minors at the time of their father's death. In 2014, they sued Walker Arenson, who was the independent administrator of their father's estate, seeking an accounting and alleging causes of action for fraud by nondisclosure, negligent misrepresentation, breach of fiduciary duty, professional negligence, and violation of the Deceptive Trade Practices Act. The trial court granted Arenson's motion for summary judgment *328on the affirmative defense of limitations.

On appeal, the appellants contend that the court erred by granting summary judgment in Arenson's favor. They raise various challenges to the summary-judgment evidence, including an argument that the court should not have considered Arenson's affidavit because it contradicted his earlier deposition testimony. In asserting that genuine issues of material fact precluded summary judgment, they argue their claims did not accrue when they received their inheritance checks because Arenson breached his fiduciary duties by failing to make a full disclosure of all material facts. Thus they contend that the discovery rule and the doctrine of fraudulent concealment deferred accrual of their causes of action.

The summary-judgment evidence showed that with the exception of a petition for an accounting, the appellants' claims were first filed and served on November 29, 2014. But because they were on inquiry notice by the early 1990s, more than four years before asserting their claims against Arenson, the relevant claims were barred by limitations. Accordingly, we affirm.

Background

Ernal Lewis, Sr. died in a car accident in April 1982. At the time of his death, he was 70 years old and married to his wife, Gertrude. He also was survived by three children he had with his ex-wife, Zella Mae Brown, all of whom were still minors at the time of his death-Mary (age 13), Lenthan (age 9), and Ernal, Jr. (age 7).

Zella hired attorney Walker Arenson to probate a 1980 will. That will purportedly bequeathed all of Lewis's real property to his children in trust, and it named Zella as trustee and executor. Representing Zella in her capacity as the children's guardian ad litem, Arenson filed an application to probate the will and for issuance of letters testamentary.

Zella later renounced her right to serve as executor and trustee, and Arenson was appointed temporary administrator with the power to take possession of all of Lewis's assets, to pay probate court costs and attorney's fees, to sue and defend lawsuits, to protect the estate, and "to disburse" money from the estate to "Zella Mae Brown, as agreed upon by all of the Decedent's heirs." Arenson filed a document titled "Verified Exhibit Showing Condition of Estate," which showed that the estate consisted of real property in Lee County, Texas valued at $250,000 and a one-half community interest in real property in Travis County valued at $8,500. The court authorized Arenson to sell the Lee County property "in order to pay expenses of the administration and allowances."

Meanwhile Lewis's brother, L.V. Bradshaw, filed a will contest and argued that the 1980 will had been procured by Zella's undue influence at a time when Lewis lacked testamentary capacity. Bradshaw ultimately withdrew his challenge. The court ruled that Lewis died intestate, appointed Arenson as independent administrator, and identified Lewis's heirs as his widow and his three children. The court's order stated that "the heirship of Decedent has been fully and satisfactorily proved as well as the identity of the nature of Decedent's property as being separate or community and the interest and shares of each of the heirs therein." The order further stated that, at the request of "all distributees of the Decedent," "no other action shall be had in this Court in relation to the settlement of Decedent's Estate other than the return of an Inventory, Appraisement, and List of Claims as required by law."

*329Due to Zella's inability to fulfill parental responsibilities, the children were placed in foster care and separated from each other for the rest of their childhood. Still, Mary and Lenthan knew that their father had left them money. Mary learned it from a counselor in a group home. In 1986, when Mary turned 18, Arenson invited her to his office and gave her a check. She testified: "He just said that this is what your father left and I got the check and that was it." She did not ask Arenson any questions. Mary estimated that the check was for $25,000, which she used for housing and living expenses.

Lenthan was injured in the accident that killed his father. He testified that his memory was "kind of vague," but he was "probably 13, 14" years old when he first learned from his foster-care providers that his father had left him some money, and they advised him to speak to Arenson when he turned 18. Lenthan did not ask how much money he had inherited. Like his sister, when he turned 18, he went to Arenson's office. Lenthan received a check for $37,000, and he did not ask Arenson any questions.

Ernal, Jr., the youngest sibling, testified that he received a check in 1993, before his eighteenth birthday. Unlike his siblings, he was surprised when his foster parents told him they had received a phone call from a lawyer about a check. Accompanied by his foster father, Ernal, Jr. visited Arenson's office. He testified: "I remember this very well. He opened the door and he just reached out and handed me a check and he didn't say two words to me. And he walked right back in his office, and that was it." Ernal, Jr. received a check for approximately $38,000. He said the check looked like a personal check, and he recalled that "Austin National Bank" was printed on it. Neither Ernal, Jr. nor his foster father asked Arenson any questions. Ernal, Jr. said he "thought maybe it came from the State or something." After he received the check, he never called Arenson.

According to Lewis's now-adult children, they learned in 2011 that their father signed a will that purported to create a trust for them. Ernal, Jr. averred:

There was more than $250,000 in my father's estate in 1983 but there is NO record of what happened to these funds. The only thing we have recently learned is that all of this $250,000 was entrusted to Walker Arenson as independent administrator of my father's estate and as the trustee of our children's trust. We have no idea where the money went over the years.

Lewis's children hired an attorney. In a letter dated July 12, 2012, the attorney sent a letter to Arenson that stated: "My clients were quite young when their father ... passed away. At the moment, I am reviewing certain matters for them." The letter requested information and files relating to Lewis's estate. Arenson did not respond to the initial request.

A month later, the lawyer sent another letter. It stated:

Over one month ago, I wrote to you concerning your prior representation of my clients-Ernal Lee Brown Jr. (a.k.a. Ernal Lee Lewis Jr.), Mary Ola Brown (a.k.a. Mary Ola Lewis and Mary Williams), Lenthan Dwayne Brown (a.k.a. Lenthan Dwayne Lewis) (collectively, "my clients"). My clients are heirs of the Estate of Ernal Lee Lewis, Sr., (the "Estate").

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Bluebook (online)
571 S.W.3d 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-arenson-texapp-2018.