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Barbay v. McCarty

Court of Appeals of Texas, Twelfth District, Tyler

September 20, 2017

ZELENA BARBAY, APPELLANT
v.
MARY MCCARTY, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF STANLEY WILLIAM TARABA, APPELLEE

         APPEAL FROM THE COUNTY COURT AT LAW NO. 1 HENDERSON COUNTY, TEXAS (TR.CT.NO. 00375-CCL-16)

          Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals, sitting by assignment.

          MEMORANDUM OPINION

          BILL BASS JUSTICE.

         Zelena Barbay brought suit against her father's estate for breach of a family settlement agreement. The trial court granted summary judgment for the estate based upon the estate's plea of limitations. In one issue, Zelena contends the trial court erred in granting summary judgment. The only question presented is when the statute of limitations began to run. We reverse and remand.

         Background

         Doris Delea Taraba, the wife of Stanley William Taraba, died on September 21, 1976. Zelena and her brother, Randal William Taraba, are the children of Doris and Stanley. On March 27, 1986, Zelena and Randal entered into a family settlement agreement with Stanley. As part of the agreement, the children conveyed to Stanley all their interest in the property owned by Doris at the time of her death including, but not limited to, her community interest in the house and lot located at Foxcrest, Carrollton, Dallas County, Texas. In consideration therefore, Stanley agreed to convey by will, at his death, a one-half interest in the house and lot in Carrollton to Randal and Zelena.

         On June 5, 1997, Stanley sold the house. Zelena became aware of the sale in 1997. Stanley died in September 2015. Mary McCarty Taraba was appointed executrix of Stanley's estate. Apparently, Stanley's will contained no devise of the Carrollton house to Randal and Zelena as agreed to in the family settlement agreement. Nor was there a devise or bequest to them of the proceeds from the sale of the house. Zelena filed an unsecured claim against the estate for a one-half interest in the house and lot in Carrollton, which was promptly denied.

         On November 1, 2016, Zelena brought suit for Stanley's breach of the family settlement agreement. Mary moved for summary judgment contending that Zelena's claim was barred by the four year statute of limitations. The trial court granted Mary's motion. This appeal followed.

         Limitation

         Zelena maintains that the four year statute of limitations did not begin to run until Stanley's 2015 death, the time for performance specified in the agreement. Mary insists that the statute commenced to run in 1997 when Zelena learned the house had been sold.

         Standard of Review

         A summary judgment is reviewed de novo. See Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see also Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Appellate courts review summary judgments following these familiar and well-established standards: (1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant. Grinnell, 951 S.W.2d at 425. A trial court should grant a defendant's motion for summary judgment if the defendant establishes all the elements of an affirmative defense as a matter of law. Id.

         Applicable Law

         "Causes of actions accrue and statutes of limitations begin to run when facts come into existence that authorize a claimant to seek a judicial remedy." Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 202 (Tex. 2011). When a cause of action accrues is normally a question of law. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). A cause of action for breach of contract generally accrues when the contract is breached and limitations begin to run at the time of the breach. See Cosgrove v. Cade, 468 S.W.3d 32, 39 (Tex. 2015). The limitation period for a cause of action for breach of ...


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