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Acosta v. Falvey

Court of Appeals of Texas, Eighth District, El Paso

June 21, 2019

VICTOR H. FALVEY, Appellee/Cross-Appellant.

          Appeal from the Probate Court No. 1 of El Paso County, Texas (TC# 84-P01364)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.


          Yvonne T. Rodriguez, Justice.

         This is 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"[1]) 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.

         Falvey 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.


         Ramon 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 day.

         On 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.

         In 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.

         In her 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.

         Falvey 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.

         Acosta 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."

         Gregorio 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.

         In 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.[2] 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 same response.

         Acosta 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.

         Acosta also presented the affidavit of Sheral Maloy, [3] 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 . . . ."

         Falvey's 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 ...

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