NUMBER 13-10-00614-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
JEAN CONWAY, Appellant,
v.
DALLAS DURELL AND KELLY SOLIZ, Appellees.
On appeal from the 36th District Court of Aransas County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Chief Justice Valdez Appellant, Jean Conway, appeals from a final summary judgment entered in
favor of appellees, Dallas Durell and Kelly Soliz. We affirm.
I. BACKGROUND
Appellant and Durell were involved in a same-sex relationship beginning in 1978
and cohabitated almost continuously for the next 30 years. In 1998, Durell was
diagnosed with a terminal illness. She and appellant moved to Rockport, Texas, where Durell purchased a home in her name only. In 2000, Durell executed a will devising her
real property to appellant.
On November 5, 2003, Durell executed a warranty deed for the Rockport home
in favor of appellant; however, the deed was never recorded and Durell did not
surrender physical possession of the deed to appellant. Instead, Durell kept the deed in
a box in her room and would “dangle” the deed before appellant to manipulate her
behavior. According to appellant, in 2008, Durell made representations to appellant that
the home belonged to appellant, reassuring her, “This is your house.”
On October 3, 2008, appellant vacated the Rockport home following a violent
argument with Durell. In 2009, appellant learned that Durell was “leaving the house” to
her daughter, Soliz. Thereafter, on July 23, 2010, appellant sued appellees for breach
of fiduciary duty, fraud, negligent misrepresentation, and promissory estoppel.
Appellees moved for summary judgment based on limitations. The trial court granted a
final summary judgment against appellant on all her claims, and this appeal ensued.
II. ANALYSIS
In five issues, appellant argues that the trial court erred in granting a final
summary judgment in favor of appellees.
A. Standard of Review
To succeed in a motion for summary judgment under rule 166a(c), a movant
must establish that there is no genuine issue of material fact so that the movant is
entitled to judgment as a matter of law. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550
(Tex. 2005) (citing Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991)). In
reviewing a summary judgment, we consider the evidence in the light most favorable to
2 the non-movant and resolve any doubt in the non-movant’s favor. Id. (citing Nixon v.
Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985)).
A defendant moving for summary judgment on the affirmative defense of
limitations has the burden to conclusively establish that defense. Velsicol Chem. Corp.
v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997). When the plaintiff pleads the discovery
rule as an exception to limitations, the defendant must negate that exception as well.
Id. (citing Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n.2 (Tex. 1988)).
B. Applicable Law
A person must bring suit on a cause of action for fraud or breach of fiduciary duty
not later than four years after the day the cause of action accrues. See TEX. CIV. PRAC.
& REM. CODE ANN. § 16.004(a)(4), (5) (West 2002). A four-year statute of limitations
also applies to a claim for promissory estoppel. Ambulatory Infusion Therapy Specialist,
Inc. v. N. Am. Adm'rs, Inc., 262 S.W.3d 107, 119 (Tex. App.—Houston [1st Dist.] 2008,
no pet.). A two-year statute of limitations applies to a claim for negligent
misrepresentation. HECI Exploration Co. v. Neel, 982 S.W.2d 881, 885 (Tex. 1998).
Generally, when a cause of action accrues is a question of law. Moreno v.
Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990). As a general rule, a cause of
action accrues and the statute of limitations begins to run when facts come into
existence that authorize a party to seek a judicial remedy. Id. (citing Johnson & Higgins
of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514 (Tex. 1998) (citing Murray v.
San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990)). In most cases, a cause of
action accrues when a wrongful act causes a legal injury, regardless of when the
3 plaintiff learns of that injury or if all resulting damages have yet to occur. Id. (citing S.V.
v. R.V, 933 S.W.2d 1, 4 (Tex. 1996)).
When applicable, the discovery rule will toll the statute of limitations such that it
does not begin to run until the date on which the claimant knew or reasonably should
have known of the facts giving rise to its cause of action. Barker v. Eckman, 213
S.W.3d 306, 312 (Tex. 2006). The discovery rule applies if: (1) the injury is inherently
undiscoverable; and (2) the evidence of the injury is objectively verifiable. Velsicol
Chem. Corp., 956 S.W.2d at 530 (citing Computer Assocs. Int'l, Inc. v. Altai, Inc., 918
S.W.2d 453, 456 (Tex. 1994)). The Texas Supreme Court has described the
requirement of an “inherently undiscoverable” injury as follows:
To be “inherently undiscoverable,” an injury need not be absolutely impossible to discover, else suit would never be filed and the question whether to apply the discovery rule would never arise. Nor does “inherently undiscoverable” mean merely that a particular plaintiff did not discover his injury within the prescribed period of limitations; discovery of a particular injury is dependent not solely on the nature of the injury but on the circumstances in which it occurred and plaintiff's diligence as well. An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence.
S.V., 933 S.W.2d at 7.
C. Accrual Date
In her first issue, appellant complains that the trial court erred in finding that her
causes of action for fraud, breach of fiduciary duty, promissory estoppel, and negligent
misrepresentation accrued on November 5, 2003. According to the letter ruling by the
trial court, “[t]he summary judgment evidence is undisputed that [Durell] had a deed to
the property, the subject of this suit, prepared and failed to either record or physically
deliver the deed to [appellant]. Subsequent to such action[, appellant’s] testimony was
4 that the deed would be dangled in her face.” Based on the foregoing, the trial court
found that “[i]f any contract existed between the parties regarding the subject real
estate, [appellant] knew or should have known in 2003 that a cause of action existed.”
According to appellant, “Such a determination was arbitrary—inexplicable, really,
given the uncontroverted evidence presented by [appellant].” Appellant points out that
“[t]he date of accrual set by the trial court in the instant case, November 5, 2003, was
the date [appellant’s] longtime companion, [Durell], executed a warranty deed granting
[appellant] one-half of the parties’ homestead.” According to appellant, she “certainly
cannot be said to have been injured at all by receiving an undivided equal share of the
parties’ house.”
Appellees maintain that the trial court’s ruling was correct because the deed was
never delivered. See Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257,
261 (Tex. 1975) (“It is settled that title to transferred property will vest upon execution
and delivery of the deed.”). Appellees argue that appellant’s causes of action, if any,
arose in 2003, when the deed was prepared but never delivered, because that meant
the deed was not effective and appellant therefore did not receive an undivided interest
in the Rockport house. See id. Appellees argue that the undisputed fact that the deed
was never recorded is material because it precludes any presumption of delivery based
solely on the fact that the deed was prepared. See id. (“A prima facie case of delivery
and the accompanying presumption that the grantor intended to convey the land
according to the terms of the deed is established . . . when it is shown that the deed has
been filed for record.”); Bell v. Smith, 532 S.W.2d 680, 685 (Tex. App.—Fort Worth
5 1976, no writ) (“And in the absence of evidence to the contrary, a deed will be
presumed to have been delivered at the time of its execution.”).
We agree with appellees. Generally, a conveyance of real property must be in
writing, signed by the grantor, and delivered to the grantee. See TEX. PROP. CODE ANN.
§ 5.021 (West 2004). A deed does not have to be recorded to convey title. See
Thornton v. Rains, 299 S.W.2d 287, 288 (Tex. 1957); Burris v. McDougald, 832 S.W.2d
707, 709 (Tex. App.—Corpus Christi 1992, no writ). A conveyance is effective and title
is transferred after the execution and delivery of the deed. Stephens County Museum,
517 S.W.2d at 261; Rothrock v. Rothrock, 104 S.W.3d 135, 138 (Tex. App.—Waco
2003, pet. denied); Hicks v. Loveless, 714 S.W.2d 30, 32 (Tex. App.—Dallas 1986, writ
ref'd n.r.e.).
Two elements must be established to prove delivery of a deed: (1) the grantor
must relinquish control over the deed to the grantee or a third party, and (2) the grantor
must intend the deed to become operative as a conveyance. See Binford v. Snyder,
189 S.W.2d 471, 475 (1945); see also Ragland v. Kelner, 221 S.W.2d 357, 359 (Tex.
1949); Vasquez v. Vasquez, 973 S.W.2d 330, 331 (Tex. App.—Corpus Christi 1998,
pet. denied); Hicks, 714 S.W.2d at 32.
The undisputed evidence shows that Durell prepared the deed, but never
delivered it to appellant, resulting in the injury for which appellant has asserted her
causes of action in this suit. We note appellant’s uncontroverted evidence that the
document was kept in a box in Durell’s bedroom, a location to which appellant had
access; however, we disagree with appellant’s assertion that this is evidence that Durell
relinquished control over the deed to appellant. If anything, it tends to prove that Durell
6 did not relinquish control over the deed to appellant. Furthermore, in light of appellant’s
testimony that Durell would “dangle” the deed in front of appellant to manipulate
appellant, the only reasonable conclusion that can be drawn is that Durell did not
relinquish control over the deed to appellant and did not intend the deed to become
operative as a conveyance. Accordingly, we conclude that the trial court did not err in
its ruling as to the accrual date of appellant’s causes of action.
Appellant’s first issue is overruled.
D. Discovery Rule
In her second issue, appellant complains that the trial court erred in finding that
appellees discharged their burden of showing that the discovery rule, which was pled by
appellant, does not apply to the facts of this case.
Appellant is correct in noting that a defendant moving for summary judgment on
the affirmative defense of limitations has the burden to:
(1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been pleaded or otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered the nature of its injury.
KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.
1999).
As noted above, the trial court ruled that, based on the fact that the deed was
prepared in 2003 but never recorded or delivered, appellant knew or should have known
in 2003 that a cause of action existed. Inherent in this ruling is the trial court’s
conclusion that appellant knew or should have discovered the nature of her injury in
7 2003. The trial court’s letter ruling specifically referenced appellant’s summary
judgment evidence, an affidavit, in which appellant states:
Although [Durell] signed the deed in the title company office and got it notarized, we did not go to the courthouse to record the document, as [Durell] said she wanted to get the house refinanced and having the deed on record at the courthouse might make the mortgage holder . . . balk. From that point on, though, [Durell] used the deed as something to dangle in my face when she wanted me to stay with her.
The undisputed fact that Durell would “dangle” the deed in appellant’s face to
manipulate appellant’s behavior clearly shows that (1) appellant knew or should have
known that she had no vested interest in the property (i.e., that the deed had been
neither delivered nor recorded) and (2) the terms and conditions on which Durell was
offering to transfer an interest in the property to appellant were being changed each
time this occurred. Accordingly, we conclude that the trial court did not err in ruling that
appellant knew or should have discovered her alleged injury (i.e., that she did not
receive a vested interest in the property) in 2003, when Durell began to “dangle” the
deed.
Appellant’s second issue is overruled.
E. Tolling Provisions of Discovery Rule
In her third issue, appellant complains that the trial court erred in granting
summary judgment in favor of appellees on their affirmative defense of limitations when
there were material fact issues as to the tolling provisions of the discovery rule.
Although appellant makes various arguments in support of her contention that the
discovery rule is applicable to her causes of action, in particular, her cause of action for
breach of fiduciary duty, we believe that, in addressing appellant’s second issue, we
have already addressed the substance of appellant’s third issue.
8 There is no genuine issue of material fact regarding the discovery of appellant’s
injury. Based on her affidavit, appellant knew or should have known in 2003, when
Durell began to “dangle” the deed, that Durell had not transferred an interest in the
property to her and that Durell was changing the terms and conditions on which she
was willing to transfer an interest in the property to appellant. Accordingly, the trial court
did not err in concluding that appellees met their burden to establish their entitlement to
judgment as a matter of law on the affirmative defense of limitations. See KPMG Peat
Marwick., 988 S.W.2d at 748.
Appellant’s third issue is overruled.
F. Fraudulent Concealment
In her fourth issue, appellant complains that the trial court erred in granting
summary judgment in favor of appellees on their affirmative defense of limitations when
there were material fact issues as to the tolling provisions of fraudulent concealment.
Fraudulent concealment estops a defendant from relying on the statute of
limitations as an affirmative defense to the plaintiff’s claim. Malone v. Sewell, 168
S.W.3d 243, 251 (Tex. App.—Fort Worth 2005, pet. denied). Fraudulent concealment
tolls limitations until the plaintiff discovers the fraud or could have discovered the fraud
with reasonable diligence. Shah v. Moss, 67 S.W.3d 836, 841 (Tex. 2001). Once the
defense of limitations is conclusively established, and the plaintiff resists summary
judgment by asserting fraudulent concealment, the burden is on the plaintiff to raise a
fact issue on each element of fraudulent concealment. Shah, 67 S.W.3d at 841 (citing
Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994)). Fraudulent
concealment consists of four elements: (1) the existence of the underlying tort; (2) the
9 defendant’s knowledge of the tort; (3) the defendant’s use of deception to conceal the
tort; and (4) the plaintiff’s reasonable reliance on the deception. Malone, 168 S.W.3d at
252.
Again, we conclude that appellant’s affidavit testimony was a sufficient basis for
the trial court to rule, as a matter of law, that the limitations periods for appellant’s
causes of action were not tolled by the doctrine of fraudulent concealment. Appellant’s
affidavit states that appellant knew Durell had not recorded the deed and that Durell
would “dangle” the deed to manipulate her, both of which demonstrate that appellant
had actual knowledge and awareness of her injury in 2003, as the trial court ruled. As a
result, appellant could not raise a genuine issue of material fact on the third and fourth
elements for fraudulent concealment (i.e., the defendant’s use of deception to conceal
the tort and the plaintiff’s reasonable reliance on the deception, respectively).
Accordingly, the trial court did not err in ruling against appellant on the issue of
fraudulent concealment.
Appellant’s fourth issue is overruled.
G. Equitable Estoppel
In her fifth issue, appellant complains that the trial court erred in granting
summary judgment in favor of appellees on their affirmative defense of limitations
because they were equitably estopped from raising the defense.
Equitable estoppel may bar a limitations defense when a party, his agent, or
representative makes representations that induce a plaintiff to delay filing suit until the
limitations period has run. Villages of Greenbriar v. Torres, 874 S.W.2d 259, 264 (Tex.
10 App.—Houston [1st Dist.] 1994, writ denied); Cook v. Smith, 673 S.W.2d 232, 235 (Tex.
App.—Dallas 1984, writ ref’d n.r.e.).
To invoke equitable estoppel, a party must prove the following elements: (1) a
false representation or concealment of material fact; (2) made with knowledge, actual or
constructive, of the facts; (3) to a party without knowledge or the means of knowledge of
the real facts; (4) with the intention that it should be acted upon; and (5) the party to
whom it was made must have relied upon or acted upon it to his prejudice. Vaughn v.
Sturm-Hughes, 937 S.W.2d 106, 108-09 (Tex. App.—Fort Worth 1996, writ denied)
(citing Schroeder v. Tex. Iron Works, Inc., 813 S.W.2d 483, 489 (Tex. 1991);
Gulbenkian v. Penn, 252 S.W.2d 929, 932 (1952)). When equitable estoppel is alleged
in avoidance of a limitations defense, the failure to file suit must be “unmixed” with any
want of diligence on the plaintiff’s part. Id. at 109.
Appellant argues that, “[a]ssuming for the sake of argument that the court
properly fixed the accrual date some six years prior to filing suit, [appellees] are
nevertheless equitably estopped to rely on the limitations defense . . . [based on the]
representation [by Durell] on October 1, 2008 that the house was [appellant’s].” We
disagree.
The doctrine of equitable estoppel requires proof that appellant “relied upon or
acted upon [the false representation or concealment] to [her] prejudice.” See Vaughn,
937 S.W.2d at 108. Appellant’s contention is Durell made the false statement to her on
October 1, 2008 with the intent of having appellant rely upon it by not filing suit;
however, even if this were true, appellant cannot show any harm or prejudice because
the statute of limitations had already expired on her claims by 2008. See TEX. CIV.
11 PRAC. & REM. CODE ANN. § 16.004(a)(4), (5) (requiring suit on a cause of action for fraud
or breach of fiduciary duty to be brought not later than four years after the day the cause
of action accrues); Ambulatory Infusion Therapy Specialist, Inc., 262 S.W.3d at 119
(holding that a four-year statute of limitations applies to a claim for promissory
estoppel); HECI Exploration Co., 982 S.W.2d at 885 (holding that a two-year statute of
limitations applies to a claim for negligent misrepresentation). Accordingly, the trial
court did not err in granting summary judgment in favor appellees because equitable
estoppel did not apply.
Appellant’s fifth issue is overruled.
III. CONCLUSION
The judgment of the trial court is affirmed.
___________________ ROGELIO VALDEZ Chief Justice
Delivered and filed the 26th day of July, 2012.