Deborah Ann Walton v. Donal R. Delf, Jr.

Opinion

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-21-00287-CV ___________________________

DEBORAH ANN WALTON, Appellant

V.

DONALD R. DELF, JR., Appellee

On Appeal from the 348th District Court Tarrant County, Texas Trial Court No. 348-317132-20

Before Bassel, Womack, and Walker, JJ. Memorandum Opinion by Justice Walker MEMORANDUM OPINION

Appellant Deborah Ann Walton appeals the summary judgment granted in favor

of her ex-husband, Appellee Donald R. Delf Jr., whom she sued for allegedly breaching

an oral agreement between them. We will affirm based on Delf’s cross-point because

summary judgment was appropriate on statute of limitations grounds.

I. BACKGROUND

Walton was awarded all right and title to the couple’s Plano, Texas home after

Walton and Delf divorced in 2009. After the divorce, they both continued to live in

the home until Walton moved out in February 2011. Delf lived in the home until it was

sold on September 16, 2013. Walton and Delf tried to sell the house shortly after their

divorce, but the house did not initially sell because of the numerous repairs required.

Delf alleged that he made repairs to the home totaling over $130,000 so that the house

would be more marketable. The home subsequently sold for a net profit of

$255,313.48.

Walton claims that she and Delf entered into an oral agreement via a phone call

on September 15, 2013—the day before closing—the terms of which entailed Walton

lending Delf $127,656.74, which constituted one-half of the net equity proceeds from

the sale of the home. Delf allegedly agreed to repay this entire sum within one year. At

2 closing, Walton and Delf signed a document1 that provided that the net proceeds from

the sale would be evenly divided between them.

Walton alleged that Delf—though he refused to commit the agreement to writing

or to establish a repayment schedule—made monthly payments to her from

February 2014 through February 2017. These payments, Walton claimed, were to pay

off what she understood to be a loan pursuant to the oral agreement. Delf contended

that the proceeds-split document constituted the only agreement between them and

that it established that Delf was to receive half of the proceeds outright rather than as

a loan from Walton. He characterized the three-years’ worth of monthly payments he

made to Walton as “general support” made out of “moral obligation” to his former

wife.

Walton sued Delf on May 29, 2020, claiming that Delf breached the alleged oral

agreement by failing to repay the loan “within no longer than one year” from when they

entered the agreement on September 15, 2013.2 Delf moved for summary judgment,

arguing that Walton’s claim was barred by the four-year statute of limitations governing

breach of contract claims; the trial court denied his motion. See Tex. Civ. Prac. & Rem.

The parties refer to this document in their briefs as either the “Proceeds Split” 1

document (Appellant) or the “Proceeds Split Agreement” (Appellee). We refer to it as the proceeds-split document.

Walton also brought claims for breach of fiduciary duty, promissory estoppel, 2

and constructive trust, but these claims were nonsuited with prejudice, leaving only the breach of contract claim.

3 Code Ann. § 16.051; see also Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3). Delf

again moved for summary judgment, this time claiming that the proceeds-split

document constituted the only agreement between the parties, thus rendering the

alleged oral agreement unenforceable because of the parol evidence rule. Delf also

moved for reconsideration of his initial summary judgment motion that was based on

limitations. The trial court granted Delf’s summary judgment motion on parol evidence

grounds and denied his motion to reconsider the limitations argument.

II. DISCUSSION

Walton argues on appeal that the trial court erred because (1) the parol evidence

rule was inapplicable and (2) there was no genuine issue of material fact regarding the

existence of the oral agreement. Delf responds, among other arguments, with a

conditional cross-point3 contending that, even if it is assumed that Walton’s appellate

issues are meritorious and that the oral agreement existed as alleged, summary judgment

was appropriate because her claim was barred by the statute of limitations. We agree

with Delf.

3 See Dean v. Lafayette Place (Section One) Council of Co-Owners, Inc., 999 S.W.2d 814, 818 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (“If an appellee is satisfied with the relief granted by the trial court, but merely wants to present additional, independent grounds for affirming the trial court's judgment, no notice of appeal is required. The independent grounds for affirmance can be raised in a cross-point as long as the appellee is not requesting greater relief than that awarded by the trial court.”); see also Bosque Asset Corp. v. Greenberg, 19 S.W.3d 514, 520 Tex. App.—Eastland 2000, pet. denied) (holding that appellee’s cross-point that summary judgment was required on limitations grounds was appropriately preserved and raised for appellate review).

4 A. STANDARD OF REVIEW

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d

860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable

to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors

could, and disregarding evidence contrary to the nonmovant unless reasonable jurors

could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). A defendant is entitled to summary judgment on an affirmative defense if

the defendant conclusively proves all elements of that defense. Frost Nat’l Bank v.

Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see Tex. R. Civ. P. 166a(b)–(c). “Where

the plaintiff’s pleadings establish that the statute of limitations has run, pleadings alone

can justify summary judgment.” Trail Enters., Inc. v. City of Hous., 957 S.W.2d 625, 632–

33 (Tex. App.—Houston [14th Dist.] 1997, pet. denied).

Generally, a denial of a motion for summary judgment is not reviewable on

appeal. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996). However, when

the trial court grants summary judgment on grounds that dispose of all of the non-

movant’s claims, the judgment becomes final and the reviewing court should consider

all preserved grounds presented to the trial court. Id. at 626. A ground is preserved if

raised by the movant in the summary judgment proceeding and presented in an issue

or cross-point on appeal. Carrico v. Kondos, 111 S.W.3d 582, 585 (Tex. App.—Fort

Worth 2003, pet. denied). In the interest of judicial economy, appellate courts can

affirm a summary judgment on different grounds than those relied upon by the trial

5 court. Gumpert v. ABF Freight Sys., Inc., 293 S.W.3d 256, 264 n.4 (Tex. App.—Dallas

2009, pet. denied).

B. APPLICABLE LAW

The statute of limitations for breach of contract is four years from the date the

cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.051; see also Stine v.

Stewart, 80 S.W.3d 586, 592 (Tex. 2002). A cause of action for breach of contract

accrues when the contract is breached. Stine, 80 S.W.3d at 592. Breach occurs when a

party fails to perform his or her obligations under the contract. Intermedics, Inc. v. Grady,

683 S.W.2d 842, 845 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.).

C. WALTON’S CLAIM WAS BARRED BY THE STATUTE OF LIMITATIONS

Walton has maintained from the outset that her breach of contract claim

stemmed from the alleged oral loan agreement entered into by the parties on

September 15, 2013, and that the loan had a one-year repayment term.4 Walton

enumerates these same agreement terms in her appellant’s brief and we will accept them

as true. See Tex. R. App. P. 38.1(g) (requiring in civil cases that appellate courts “accept

as true the facts stated” in the appellant’s brief unless contradicted by another party).

If payment of the loan was due within one year of September 15, 2013, then

Delf’s breach would have occurred—it being undisputed that he failed to repay Walton

4 The record shows that Walton asserted this one-year duration term in her verified original petition, her response to Delf’s initial motion for summary judgment, and her response to Delf’s second motion for summary judgment

6 the full amount in that year—on September 16, 2014. See Stine, 80 S.W.3d at 592. The

statute of limitations started to run on this date; thus, to comply with the four-year

limitation period, Walton should have brought her breach of contract claim no later

than September 16, 2018. But she did not bring the claim until May 29, 2020.

Accordingly, we hold that Delf conclusively proved his statute of limitations

affirmative defense.

D. THE ALLEGED ORAL AGREEMENT WAS NOT A CONTINUING CONTRACT

Walton contends that the oral agreement constituted a continuing contract for

payment and thus she was entitled to a later accrual date by which to bring her breach

of contract action. In support, she points to extrinsic evidence that Delf made monthly

payments to her for three years.

“In a continuing contract, the contemplated performance and payment is divided

into several parts or, where the work is continuous and indivisible, the payment for

work is made in installments as the work is completed.” Hubble v. Lone Star Contracting

Corp., 883 S.W.2d 379, 381 (Tex. App.—Fort Worth 1994, writ denied). “If the parties’

agreement contemplates a continuing contract for performance, the limitations period

usually does not commence until the contract is fully performed.” Trelltex, Inc. v. Intecx,

L.L.C., 494 S.W.3d 781, 786 (Tex. App.—Houston [14th Dist.] 2016, no pet.). But

when a contract contains a specific performance date, the continuing contract doctrine

does not toll the running of limitations beyond the performance date. See Capstone

7 Healthcare Equip. Servs. Inc. v. Quality Home Health Care, Inc., 295 S.W.3d 696, 700–01 (Tex.

App.—Dallas 2009, pet. denied); see also Republic Parking Sys. of Tex., Inc. v. Med. Towers,

Ltd., No. 14-02-01141-CV, 2004 WL 2358315, at *9 (Tex. App.—Houston [14th Dist.]

Oct. 21, 2004, pet. denied) (holding that the continuing contract doctrine did not apply

because the contract had a specific term of five years); see also Tabrizi v. Daz-Rez Corp.,

153 S.W.3d 63, 67 (Tex. App.—San Antonio 2004, no pet.) (holding that only when the

performance term is omitted from an oral agreement should courts consider extrinsic

evidence to determine that term).

The record conclusively shows—through Walton’s pleadings and continued

admissions—that the alleged oral agreement between Walton and Delf did not call for

periodic payments but instead had a specific performance date of one year from

contract formation. Thus, the parties did not enter into a continuing contract, and

Walton’s claim accrued in September 2014.

III. CONCLUSION

Having held that Walton’s breach of contract claim was barred by the statute of

limitations, we need not consider her issues raised on appeal. See Tex. R. App. P. 47.1.

Accordingly, we affirm the trial court’s judgment. See Tex. R. App. P. 43.2(a).

/s/ Brian Walker

Brian Walker Justice

Delivered: June 30, 2022