Court of Appeals of Texas, Eighth District, El Paso
OLGA GOMEZ ACOSTA, RAYMUNDO GOMEZ, OLGA GOMEZ CHAVEZ, ROSA MARIA GOMEZ ROMERO, GREGORIO OROZCO, FIDEL MANUEL OROZCO and LUZELENA MELENDEZ, Appellants/Cross-Appellees,
VICTOR H. FALVEY, Appellee/Cross-Appellant.
from the Probate Court No. 1 of El Paso County, Texas (TC#
McClure, C.J., Rodriguez, and Palafox, JJ.
T. Rodriguez, Justice.
an appeal from a judgment granting Appellee Victor H.
Falvey's motion for summary judgment and ordering that
Appellants Olga Gomez Acosta, Raymundo Gomez, Olga Gomez
Chavez, Rosa Maria Gomez Romero, Gregorio Orozco, Fidel
Manuel Orozco, and Luzelena Melendez (collectively,
"Acosta") take nothing on their claims against him.
Those claims arise out of Falvey's legal representation
of Remedios Gomez concerning the estate of her husband, Ramon
Gomez, in 1984. Appellants are children or grandchildren of
Remedios or Ramon, or both. They assert that they were
wrongfully deprived of their interest in Ramon's
community estate and separate real property as a result of
Falvey preparing and filing a false small estate affidavit
stating that Remedios was Ramon's sole heir.
filed a cross-appeal, asserting that the trial court
erroneously, and perhaps unintentionally, denied his
counterclaim for sanctions by ordering that all relief not
expressly granted is denied. We affirm the take-nothing
judgment on the ground of limitations and hold that
Falvey's request for sanctions was abandoned.
Gomez died intestate in 1984. Victor Falvey, an attorney,
prepared and filed a small estate affidavit, which was signed
and sworn to by Ramon's widow, Remedios Gomez. That
affidavit stated that Remedios was the sole distributee,
heir, devisee, or assign of Ramon's estate, and was
entitled to 100% of that estate. The affidavit was filed on
March 22, 1984, and an order approving it was signed the same
March 25, 2015, over thirty-one years after the small estate
affidavit was filed and approved, Acosta sued Falvey. Acosta
alleged that Falvey breached fiduciary duties owed to
Remedios and to the children of Remedios and Ramon because he
knew that Ramon had children and thus, he either knew that
the small estate affidavit was false, or he was grossly
negligent in preparing it. As a further breach, Acosta
alleged that Remedios received two real properties through
Ramon's estate, which she then conveyed to Falvey's
parents, one in 1985 and one in 1986. Acosta asserted that
Falvey fraudulently concealed "the breach of the
fiduciary relationship that Mr. Falvey established with
Remedios and the heirs of Ramon and Remedios." In
anticipation of a limitations defense, Acosta alleged that
limitations was suspended because one plaintiff, Raymundo
Gomez, was in the armed forces from 1984 to 1997, and because
of Falvey's fraudulent concealment. In a supplemental
pleading, Acosta also asserted the discovery rule.
response, Falvey filed an answer asserting that the suit was
barred by limitations. He also filed a "Counterclaim
and/or Motion for Sanctions" pursuant to chapter ten of
the Texas Civil Practice and Remedies Code. In a supplemental
answer, Falvey asserted an attorney-immunity defense.
second amended petition, Acosta alleged that Falvey had a
fiduciary relationship only with Remedios, omitting her
previous allegation that he also had a fiduciary relationship
with Remedios's and Ramon's descendants. She alleged
instead that Remedios defrauded the children and breached her
fiduciary duty to them, and that Falvey aided and abetted
Remedios in that fraud and breach. She further alleged that
Falvey aided and abetted Remedios in converting Ramon's
real property which was conveyed to Falvey's parents.
filed a motion for summary judgment asserting a variety of
no-evidence and traditional grounds. We need only address the
assertion that Acosta's suit is barred by limitations. It
is undisputed that the small estate affidavit here at issue
was filed and approved in March 1984, the affidavit was a
matter of public record, and Acosta did not file suit until
March 2015. As summary judgment evidence, Falvey filed
excerpts from the depositions of each of the individual
Appellants. These excerpts demonstrate that each of them
relied on Olga Gomez Acosta to pursue this matter, and that
none of them (other than Acosta, herself) made any inquiry
concerning Ramon's estate until Raymundo Gomez sent
Falvey an email in 2014.
testified that, in 1986, she went to the courthouse to search
the public record because she had some questions in her mind
concerning her father's affairs and thought he might have
left a will. In her search, she discovered the small estate
affidavit filed by Falvey. Also, in 1986, she told her
brother, Raymundo, that something was not right and showed
him the affidavit. In 1989, Acosta started talking to various
attorneys about the matter but was unable to obtain their
assistance, for unstated reasons. In 1994, Acosta filed an
application for guardianship for Remedios and mentioned her
concerns about the small estate affidavit to Rene Ordonez,
the attorney representing her in the guardianship. Ordonez
advised her to worry first about the guardianship matter and
"we'll take care of the rest later on."
Orozco Mota testified that Acosta told him in the 1990's
that something was wrong with Ramon's estate. Raymundo
Gomez similarly testified that Acosta had occasionally
mentioned that something was wrong with the estate since 1986
or 1987, and that she said she had talked to several
attorneys about it. He had asked Acosta about the matter two
or three times a year since 1997 and believed since that time
that there was something wrong that should be investigated.
In 2014, Raymundo sent Falvey an email asking about the
affidavit and why the children were not notified.
response to Falvey's summary judgment motion, Acosta
raised both the discovery rule and fraudulent concealment to
overcome the limitations defense. In support, she filed her
own affidavit acknowledging that she first had concerns about
her father's estate in 1986 and discovered the small
estate affidavit in that year. She stated that she asked Falvey
about her father's affairs and whether he had a will, but
Falvey responded, "your mother came by herself and that
is all I will tell you." Acosta stated that she made
repeated inquiries to Falvey over the years and received the
also stated, "During the years following I contacted
numerous lawyers to seek legal assistance to see if I could
get some answers to the question of what happened to my
father's property. I did the best I could to obtain legal
assistance but was unable to do so." In April 2014, she
spoke with attorney Sheral Maloy, who told her that the small
estate affidavit was wrong in stating that Remedios was
entitled to 100 percent of Ramon's estate. Rather,
Ramon's children were entitled to his separate real
property (subject to a life estate in Remedios) and one-half
of his community property. Maloy also told Acosta that Falvey
had committed wrongdoing in filing the small estate affidavit
if he knew that Ramon had children. Acosta contends that
Falvey knew that she was Ramon's daughter because he had
represented her in her divorce.
also presented the affidavit of Sheral Maloy,  who asserted that
she was designated as a testifying expert and opined that the
small estate affidavit "would not by itself be
sufficient to inform any children of Ramon Gomez that they
had a claim on their father's estate." Maloy further
opined that the children would have required "legal
assistance from an attorney experienced in real estate law .
. . ." In addition, Maloy stated that it was
understandable that Acosta could not retain legal counsel
because of the "nature and difficulty of the case,"
and that there was nothing more Acosta could have done to
pursue any claims "[u]ntil she could get an attorney to
review and render an opinion . . . ."
motion for summary judgment was heard on September 21, 2016.
On September 29, 2016, the trial court signed a judgment
granting the motion without specifying the grounds and
ordering a take-nothing judgment. The ...