Vanderpool v. Vanderpool

442 S.W.3d 756, 2014 WL 3939035, 2014 Tex. App. LEXIS 8851
CourtCourt of Appeals of Texas
DecidedAugust 13, 2014
DocketNo. 12-12-00358-CV
StatusPublished
Cited by9 cases

This text of 442 S.W.3d 756 (Vanderpool v. Vanderpool) 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
Vanderpool v. Vanderpool, 442 S.W.3d 756, 2014 WL 3939035, 2014 Tex. App. LEXIS 8851 (Tex. Ct. App. 2014).

Opinion

OPINION OVERRULING REHEARING

JAMES T. WORTHEN, Chief Justice.

Victoria Rae Vanderpool, Janis Claire Stark, and Ray Todd Vanderpool (Appellants) have filed a. motion for rehearing, which is overruled. This court’s opinion dated April 23, 2014, is withdrawn and the following opinion is substituted in its place.

Appellants appeal the trial court’s order granting summary judgment in favor of Barbara Sharp Vanderpool. They raise one issue on appeal. We affirm in part, reverse in part, and remand the case for further proceedings.

Background

This case involves a dispute over the disposition of property in which Ray Leland Vanderpool owned a life estate and Appellants owned the remainder interest. Appellants are Ray’s children, and Barbara is their stepmother.

In the third and fourth codicils to their wills, Appellants’ grandparents, Milton and Beulah Vanderpool, bequeathed a life estate in an undivided one-half of their real and personal property to Ray and the remainder interest to Appellants.

Milton died on February 26, 1986, and Beulah died on February 27, 1991. Their estates consisted of real and personal property, including the “family farm” and 213 Krugerrands.

On February 15, 2005, Ray and Barbara conveyed real property, including Ray’s interest in the family farm, to Jack King, Jr. and his wife, Debra. The documents pertaining to the transaction included a promissory note (the King note), payable to Ray and Barbara, which had a final maturity date of February 15, 2010.1

Ray died on March 1, 2007. When the King note matured, Barbara did not distribute any of its proceeds to Appellants.

On November 14, 2011, Appellants filed suit alleging “causes of action” for conversion and breach of fiduciary duty, a constructive trust, and an accounting. Appellants later amended their petition to include allegations of fraud and “breach of confidential relationship” as additional causes of action. Appellants’ complaints are based on Barbara’s failing to distribute their portion of the King note proceeds and withholding the Krugerrands after their father’s death.

[761]*761Barbara filed a motion for partial summary judgment contending the statute of limitations barred Appellants’ causes of action for conversion and breach of fiduciary duty, and later responded that the discovery rule and doctrine of fraudulent concealment did not apply. In an amended order, the trial court granted Barbara’s motion for partial summary judgment on Appellants’ “causes of action for fraud, conversion, breach of fiduciary duty, accounting and a constructive trust.” The trial court granted Appellants’ motion to sever their claims against Barbara from their claims against the remaining defendant and signed a final judgment. This appeal followed.

Summary Judgment Standard of Review

Appellants contend that the trial court erred in granting Barbara’s motion for partial summary judgment. We review a trial court’s grant of summary judgment de novo. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010), cert. denied, — U.S. —, 131 S.Ct. 1017, 178 L.Ed.2d 829 (2011); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

A defendant who moves for summary judgment has the burden of showing that there is no genuine issue of material fact concerning one or more essential elements of the plaintiffs claims, or must plead and conclusively establish an affirmative defense to show that she is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995); In re Estate of Melchior, 365 S.W.3d 794, 798 (Tex.App.-San Antonio 2012, pet. denied).

A defendant moving for summary judgment on the affirmative defense of limitations must conclusively prove when the cause of action accrued. See KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). In addition, the defendant must 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. See id.; Velsicol Chem. Corp. v. Winograd, 956 S.W.2d. 529, 530 (Tex.1997) (per cu-riam). Evidence is conclusive only if reasonable people could not differ in their conclusions, a matter that depends on the facts of each case. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005); see also Anderton v. Cawley, 378 S.W.3d 38, 46 (Tex.App.-Dallas 2012, no pet.) (citations omitted) (“A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence.”).

If the defendant establishes that a matter is barred by limitations, the plaintiff must then produce evidence raising an issue of fact to avoid summary judgment. In re Estate of Melchior, 365 S.W.3d at 798. We review the record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 645 (Tex.2013); Valence, 164 S.W.3d at 661.

Conversion — Note Proceeds

In their first issue, which comprises three subissues, Appellants challenge the trial court’s rulings pertaining to their cause of action for the conversion of note proceeds (subissue 1), the discovery rule (subissue 2), and the doctrine of fraudulent concealment (subissue 3). We will address each subissue separately.

In their first subissue, Appellants contend that the trial court erred in granting [762]*762summary judgment on Barbara’s limitations defense to Appellants’ cause of action for conversion of note proceeds. Barbara contends that this cause of action:is time-barred because it accrued no later than October B, 2007, and Appellants did not file suit until November 14, 2011.

Applicable Law

A conversion of personal property occurs upon the unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another to the exclusion of, or inconsistent with, the owner’s rights. Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex.1971). The limitations period for a claim of conversion is two years. Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (West Supp.2013). The date a cause of action accrues is a question of law. See Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 567 (Tex.2001).

Generally, a claim accrues when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred. See S.V v. R.V., 933 S.W.2d 1, 4 (Tex.1996).

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Bluebook (online)
442 S.W.3d 756, 2014 WL 3939035, 2014 Tex. App. LEXIS 8851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vanderpool-v-vanderpool-texapp-2014.