AFFIRM and Opinion Filed March 4, 2020
S In The Court of Appeals Fifth District of Texas at Dallas
No. 05-19-00179-CV
THOMAS C. DAVIS, Appellant V. L. LOUISE DAVIS, Appellee
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-13843
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Evans Opinion by Justice Evans This is an appeal from a summary judgment granted in favor of appellee L.
Louise Davis. In two issues, appellant Thomas C. Davis asserts that the trial court
erred by granting summary judgment on Louise’s breach of contract claim because
the statute of limitations on that claim expired pursuant to: (1) Section 9.003 of the
Texas Family Code or (2) Section 16.004 of the Texas Civil Practice and Remedies
Code. We affirm.
BACKGROUND
Tom and Louise were married in 1988 and divorced in 2005. On July 13,
2005, Tom and Louise entered into an Agreement Incident to Divorce and each received a fifty percent share in Lone Star Self Storage Allen – Ltd. (IRA
investment). On February 4, 2009, Tom emailed Louise that “[w]e have the Lone
Star self storage project in Allen under contract to sell. While the price might change
a little, I think that my IRA’s interest will get approximately $240,000, half of which
is yours and can be distributed to your IRA.”
On November 6, 2012, Louise emailed Tom that she “was talking to Bill
Adams this morning and he said he mailed a check for $360,000 or so directly into
your IRA about 3 years ago when the investors got their money back from the
investment. I remember it being in an IRA but was wondering how and when I get
my half. How does that work?” Tom wrote back on November 6, 2012 that he did
not recall the facts that way and would look into it. Tom followed up in December
2012 that he still had not “found out where this distribution from Lone Star Self
Storage is” but stated he would “eventually track it down.”
On March 20, 2014, Louise emailed Tom asking to meet about the “Lone Star
money.” In response, Tom admitted that “my 401K was distributed some money
from Lone Star” and he was going to “piece together what happened” and asked that
Louise “forgive [him] for this screw up.” On April 24, 2014, Tom emailed Louise
that he would “put some sort of a proposal together for you to look at. Whatever we
decide I owe you from the Lone Star distribution, I need to pay out over [sic] period
of time.”
–2– On September 12, 2014, Louise received a check from Tom in the amount of
$5,000. Louise and Tom continued to email back and forth in October and
November 2014 about the Lone Star money. On November 7, 2014, Louise received
a check for $5,000 from Tom with a note in the memo section that it was for the
“Lone Star Deal.” In March 2015, Tom and Louise exchanged emails about meeting
to discuss payment of the Lone Star deal. On April 13, 2015, Louise received a
check in the amount of $10,000 from Tom with a note in the memo section that it
was for a “distribution.” Tom and Louise continued to exchange emails about
payment in June and August 2015. Louise received additional payments from Tom
on August 27, 2015 ($5,000), October 20, 2015 ($5,000), and March 2, 2016
($5,000).
On March 19, 2016, Louise received a check for $5,000 and a note stating as
follows: “I have enclosed a check for $5,000. According to my records this makes
$55,000 that I have paid you. I will pay you $5,000 a quarter until we agree the
obligation is fulfilled. I am not sure how much I owe you after taxes. I need to
figure it out.”1 Louise responded that the check was “not ‘a large part of the
distribution’ that you said you would send. And it’s $35,000 not $55,000, paid so
far.”
1 We note that the record reference containing this quote is partially incomplete as a page is missing from the clerk’s record. However, as this statement is uncontested, we accept the facts as stated as true. See TEX. R.. APP. P. 38.1(g). –3– On October 21, 2016, Louise received her last check in the amount of $10,000
from Tom with a note in the memo section that it was for “repayment.”
Louise filed her lawsuit on October 25, 2016, for the sum of $145,000 and
attorney’s fees.
ANALYSIS
A. Standard of Review
We review an order granting summary judgment de novo. Alexander v.
Wilmington Savings Fund Soc’y, 555 S.W.3d 297, 299 (Tex. App.—Dallas 2018, no
pet.). When we review a summary judgment in favor of a claimant, we determine
whether the claimant established every element of its claim as a matter of law. Id.
We consider the evidence in the light most favorable to the non-movant, indulge
every reasonable inference in favor of the non-movant, and resolve any doubts
against the movant. Id. When, as in this case, the summary judgment does not
specify the grounds on which it was granted, we affirm if any ground advanced in
the motion is meritorious. See Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919,
922–23 (Tex. App.—Dallas 2009, no pet.).
B. Statute of Limitations
In his first issue, Tom argues that Louise’s claim is barred by the two-year
statute of limitations under section 9.003 of the Texas Family Code.2 Alternatively,
2 Section 9.003 provides as follows:
–4– in his second issue, Tom argues that Louise’s breach of contract claim is barred by
the four-year statute of limitations under section 16.004 of the Texas Civil Practice
and Remedies Code.3 We need not decide which applies4 because Tom’s conduct
renewed the limitations period within either limitation period.
Texas law provides that partial payment of a debt or written acknowledgement
of a debt renews the statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.065 (“An acknowledgment of the justness of a claim that appears to be barred
by limitations is not admissible in evidence to defeat the law of limitations if made
after the time that the claim is due unless the acknowledgment is in writing and is
signed by the party to be charged.”); Parks v. Seybold, No. 05-13-00694-CV, 2015
WL 4481768, at *2 (Tex. App.—Dallas July 23, 2015, no pet.) (“A creditor may sue
(a) A suit to enforce the division of tangible personal property in existence at the time of the decree of divorce or annulment must be filed before the second anniversary of the date the decree was signed or becomes final after appeal, whichever date is later, or the suit is barred. (b) A suit to enforce the division of future property not in existence at the time of the original decree must be filed before the second anniversary of the date the right to the property matures or accrues or the decree becomes final, whichever date is later, or the suit is barred. TEX. FAM. CODE ANN. § 9.003. 3 Section 16.004 provides, A person must bring suit on the following actions not later than four years after the day the cause of action accrues: (1) specific performance of a contract for the conveyance of real property; (2) penalty of damages on the penal clause of a bond to convey real property; (3) debt; (4) fraud; or (5) breach of a fiduciary duty. TEX. CIV. PRAC. & REM. CODE ANN. § 16.004. 4 See Chakrabarty v. Ganguly,
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AFFIRM and Opinion Filed March 4, 2020
S In The Court of Appeals Fifth District of Texas at Dallas
No. 05-19-00179-CV
THOMAS C. DAVIS, Appellant V. L. LOUISE DAVIS, Appellee
On Appeal from the 298th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-13843
MEMORANDUM OPINION Before Justices Molberg, Reichek, and Evans Opinion by Justice Evans This is an appeal from a summary judgment granted in favor of appellee L.
Louise Davis. In two issues, appellant Thomas C. Davis asserts that the trial court
erred by granting summary judgment on Louise’s breach of contract claim because
the statute of limitations on that claim expired pursuant to: (1) Section 9.003 of the
Texas Family Code or (2) Section 16.004 of the Texas Civil Practice and Remedies
Code. We affirm.
BACKGROUND
Tom and Louise were married in 1988 and divorced in 2005. On July 13,
2005, Tom and Louise entered into an Agreement Incident to Divorce and each received a fifty percent share in Lone Star Self Storage Allen – Ltd. (IRA
investment). On February 4, 2009, Tom emailed Louise that “[w]e have the Lone
Star self storage project in Allen under contract to sell. While the price might change
a little, I think that my IRA’s interest will get approximately $240,000, half of which
is yours and can be distributed to your IRA.”
On November 6, 2012, Louise emailed Tom that she “was talking to Bill
Adams this morning and he said he mailed a check for $360,000 or so directly into
your IRA about 3 years ago when the investors got their money back from the
investment. I remember it being in an IRA but was wondering how and when I get
my half. How does that work?” Tom wrote back on November 6, 2012 that he did
not recall the facts that way and would look into it. Tom followed up in December
2012 that he still had not “found out where this distribution from Lone Star Self
Storage is” but stated he would “eventually track it down.”
On March 20, 2014, Louise emailed Tom asking to meet about the “Lone Star
money.” In response, Tom admitted that “my 401K was distributed some money
from Lone Star” and he was going to “piece together what happened” and asked that
Louise “forgive [him] for this screw up.” On April 24, 2014, Tom emailed Louise
that he would “put some sort of a proposal together for you to look at. Whatever we
decide I owe you from the Lone Star distribution, I need to pay out over [sic] period
of time.”
–2– On September 12, 2014, Louise received a check from Tom in the amount of
$5,000. Louise and Tom continued to email back and forth in October and
November 2014 about the Lone Star money. On November 7, 2014, Louise received
a check for $5,000 from Tom with a note in the memo section that it was for the
“Lone Star Deal.” In March 2015, Tom and Louise exchanged emails about meeting
to discuss payment of the Lone Star deal. On April 13, 2015, Louise received a
check in the amount of $10,000 from Tom with a note in the memo section that it
was for a “distribution.” Tom and Louise continued to exchange emails about
payment in June and August 2015. Louise received additional payments from Tom
on August 27, 2015 ($5,000), October 20, 2015 ($5,000), and March 2, 2016
($5,000).
On March 19, 2016, Louise received a check for $5,000 and a note stating as
follows: “I have enclosed a check for $5,000. According to my records this makes
$55,000 that I have paid you. I will pay you $5,000 a quarter until we agree the
obligation is fulfilled. I am not sure how much I owe you after taxes. I need to
figure it out.”1 Louise responded that the check was “not ‘a large part of the
distribution’ that you said you would send. And it’s $35,000 not $55,000, paid so
far.”
1 We note that the record reference containing this quote is partially incomplete as a page is missing from the clerk’s record. However, as this statement is uncontested, we accept the facts as stated as true. See TEX. R.. APP. P. 38.1(g). –3– On October 21, 2016, Louise received her last check in the amount of $10,000
from Tom with a note in the memo section that it was for “repayment.”
Louise filed her lawsuit on October 25, 2016, for the sum of $145,000 and
attorney’s fees.
ANALYSIS
A. Standard of Review
We review an order granting summary judgment de novo. Alexander v.
Wilmington Savings Fund Soc’y, 555 S.W.3d 297, 299 (Tex. App.—Dallas 2018, no
pet.). When we review a summary judgment in favor of a claimant, we determine
whether the claimant established every element of its claim as a matter of law. Id.
We consider the evidence in the light most favorable to the non-movant, indulge
every reasonable inference in favor of the non-movant, and resolve any doubts
against the movant. Id. When, as in this case, the summary judgment does not
specify the grounds on which it was granted, we affirm if any ground advanced in
the motion is meritorious. See Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919,
922–23 (Tex. App.—Dallas 2009, no pet.).
B. Statute of Limitations
In his first issue, Tom argues that Louise’s claim is barred by the two-year
statute of limitations under section 9.003 of the Texas Family Code.2 Alternatively,
2 Section 9.003 provides as follows:
–4– in his second issue, Tom argues that Louise’s breach of contract claim is barred by
the four-year statute of limitations under section 16.004 of the Texas Civil Practice
and Remedies Code.3 We need not decide which applies4 because Tom’s conduct
renewed the limitations period within either limitation period.
Texas law provides that partial payment of a debt or written acknowledgement
of a debt renews the statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.065 (“An acknowledgment of the justness of a claim that appears to be barred
by limitations is not admissible in evidence to defeat the law of limitations if made
after the time that the claim is due unless the acknowledgment is in writing and is
signed by the party to be charged.”); Parks v. Seybold, No. 05-13-00694-CV, 2015
WL 4481768, at *2 (Tex. App.—Dallas July 23, 2015, no pet.) (“A creditor may sue
(a) A suit to enforce the division of tangible personal property in existence at the time of the decree of divorce or annulment must be filed before the second anniversary of the date the decree was signed or becomes final after appeal, whichever date is later, or the suit is barred. (b) A suit to enforce the division of future property not in existence at the time of the original decree must be filed before the second anniversary of the date the right to the property matures or accrues or the decree becomes final, whichever date is later, or the suit is barred. TEX. FAM. CODE ANN. § 9.003. 3 Section 16.004 provides, A person must bring suit on the following actions not later than four years after the day the cause of action accrues: (1) specific performance of a contract for the conveyance of real property; (2) penalty of damages on the penal clause of a bond to convey real property; (3) debt; (4) fraud; or (5) breach of a fiduciary duty. TEX. CIV. PRAC. & REM. CODE ANN. § 16.004. 4 See Chakrabarty v. Ganguly, 573 S.W.3d 413 (Tex. App.—Dallas 2019, no pet.) (en banc) (holding funds-transfer obligation in agreement incident to divorce was not tangible personal property subject to section 9.003 of the family code, overruling Long v. Long, 196 S.W.3d 460, 467–68 (Tex. App.—Dallas 2006, no pet.)). –5– to recover a debt otherwise barred by limitations if the debtor has acknowledged the
debt in writing.”); Tri-State Mortgage Co. v. Coronado Fin. I P’ship, No. 08-99-
00087-CV, 2001 WL 225933, at *5 (Tex. App.—El Paso Mar. 8, 2001, no pet.)
(“Under both Texas and federal law, partial payment of a debt or written
acknowledgment of a debt renews the statute of limitations.”). When a creditor
acknowledges a debt, the law implies a promise to pay the debt and the debtor may
sue for breach of that promise. Parks, 2015 WL 4481768, at *2. Whether a writing
constitutes an acknowledgement of debt is a question of law, but whether an
acknowledgement refers to the particular debt sued on is a question of fact. See
DeRoeck v. DHM Ventures, LLC, 576 S.W.3d 875, 877–78 (Tex. App.—Austin
2019, no pet.). Texas courts have held that a check can be an acknowledgement of
debt. Id. at 878.
As described above, the summary judgment evidence includes multiple email
communications, written notes and checks exchanged between Louise and Tom.
Tom conceded in his correspondence with Louise that he owed a debt comprised of
her portion of the Lone Star deal and expressed his willingness to pay it over time.
For example, Tom emailed Louise “[w]hatever we decide I owe you from the Lone
Star distribution, I need to pay out over [sic] period of time.” In addition, Tom
directly referenced the debt owed to Louise on the checks written to Louise. By
check dated November 7, 2014, Tom sent Louise a check in the amount of $5,000
for the “Lone Star Deal.” Tom also sent Louise a check dated October 21, 2016 in –6– the amount of $10,000 for “repayment.” This last check from Tom to Louise in the
amount of $10,000 was written only four days prior to the filing of this lawsuit.
These checks and communications—which were in writing, signed by Tom, and
referenced the debt at issue—met the requirements of a written acknowledgment.
See Parks, 2015 WL 4481768, at *3. As these acknowledgments occurred less than
two years prior to the filing of this lawsuit, we conclude that neither the two-year
nor the four-year statute of limitations could bar Louise’s breach of contract claim.
See Parks, 2015 WL 4481768, at *2; Tri-State Mortgage Co., 2001 WL 225933, at
*5. Accordingly, we overrule both of Tom’s issues.
CONCLUSION
We affirm the judgment of the trial court as to the granting of Louise’s motion
for summary judgment on the breach of contract claim.
/David Evans/ DAVID EVANS JUSTICE
190179F.P05
–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
THOMAS C. DAVIS, Appellant On Appeal from the 298th Judicial District Court, Dallas County, Texas No. 05-19-00179-CV V. Trial Court Cause No. DC-16-13843. Opinion delivered by Justice Evans. L. LOUISE DAVIS, Appellee Justices Molberg and Reichek participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee L. LOUISE DAVIS recover her costs of this appeal from appellant THOMAS C. DAVIS.
Judgment entered March 4, 2020.
–8–