Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 110th District Court Dickens County, Texas
Trial Court No. 4646; Hon. William P. Smith, Presiding
QUINN, C.J., and PIRTLE and PARKER, JJ.
Melton appeals from a final summary judgment denying her
recovery against her brother, Robert Waddell. Apparently,
they were cotenants in two parcels of realty, which Rhea
named Tract One and Tract Two in her live pleadings. Both
tracts allegedly were used by Robert to conduct his own
cattle operation. One tract was also the subject of a mineral
lease under which Rhea and Robert received royalties.
Regarding those royalties, the two individuals allegedly
agreed to deposit them into a joint account against which
both could and did draw checks. Apparently, the account was
being used for that purpose for more than fifteen years.
During that period, though, Robert purportedly withdrew sums
of money exceeding his proportionate ownership interest in
the entire sums deposited. Rhea discovered this in 2015,
withdrew the remaining funds, and closed the account. She
then filed suit against Robert in February of 2016, alleging
causes of action for breached fiduciary duty, conversion, and
unjust enrichment. Robert responded by answer and with a
no-evidence and traditional motion for summary judgment. The
no-evidence aspect of the motion focused on the substance of
Rhea's causes of action; that is, he argued that she had
no evidence to establish them. The traditional aspect dealt
with limitations, and therein, he argued that limitations
barred her claim of breached fiduciary duty. The trial court
denied the no-evidence aspect of the motion, granted the
other, and entered judgment denying Rhea recovery on all her
causes of action. She appealed, alleging three issues. We
Jacks v. Zoning Bd. of Adjustment, No.
07-18-00174-CV, 2019 Tex.App. LEXIS 5741, at *3-4 (Tex.
App.-Amarillo July 9, 2019, no pet.) (mem. op.), we discussed
the standard of review applicable in cases like that before
us. That standard is used here.
one proffering an affirmative defense as basis for summary
judgment has the obligation to, as a matter of law, 1) prove
when the cause of action accrued, and 2) negate the discovery
rule, if applicable. Gator Frac Heating & Rentals,
LLC. v. Brooks, No. 07-18-00312-CV, 2019 Tex.App. LEXIS
6519, at *5 (Tex. App.-Amarillo July 30, 2019, pet. filed)
(mem. op.). Robert failed to do that.
the several claims alleged by Rhea against Robert was one
involving the use of jointly owned realty on which to operate
his cattle business. According to Rhea, "Robert . . .
disregarded the ownership of Tract One and Tract Two in
allocating receipts [she] . . . should have received from the
livestock operations conducted by Robert" on the tracts.
Neither she "nor the other owners of the properties
have received any monetary disbursements from [him] for lease
of the properties, sale of the livestock, or other
benefits" he "received . . . related to the
that Rhea alleged she and Robert were engaged in a fiduciary
relationship regarding the joint account, and he breached
that relationship by excessively expending funds from the
account on his own behalf. Robert attempted to attack the
existence of that relationship through his no-evidence aspect
of the motion for summary judgment. But, that request was
denied him. Instead, summary judgment was awarded merely on
the tenor of his traditional aspect of his motion, and it
rested upon Rhea's purported ability to discover the
alleged misconduct given her ready access to the account.
discovery rule applies in instances of breached fiduciary
duty. Goughnour v. Patterson, No. 12-17-00234-CV,
2019 Tex.App. LEXIS 1665, at *8-9 (Tex. App.-Tyler Mar. 5,
2019, pet. filed) (mem. op.). Normally, under that rule, the
accrual of a cause of action is deferred until the plaintiff
knew or, in exercising reasonable diligence, should have
known of facts giving rise to the claim. Id. at *8.
Yet, the second prong of the test is inapplicable in
fiduciary situations. Id. That is, our Supreme Court
deemed a fiduciary's misconduct to be inherently
undiscoverable. S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.
1996). So, the person to whom the fiduciary duty is owed is
relieved of the responsibility of diligent inquiry.
Id. That means the cause accrues when the misconduct
becomes known or apparent. See id.; Goughnour, 2019
Tex.App. LEXIS 1665, at *8-9. Consequently, Rhea's ready
access to the account and her ability to have discovered the
alleged misconduct had she used diligence is irrelevant given
the alleged fiduciary relationship. Furthermore, Rhea
proffered summary judgment evidence indicating that she did
not know of his supposed misconduct until 2015. Having filed
suit in 2016, a material issue of fact existed as to whether
the four-year limitations period had lapsed. See Agar
Corp. v. Electro Circuits Int'l, LLC, 580 S.W.3d
136, 139 (Tex. 2019) (noting that the four-year period
applies to claims of breached fiduciary duty).
as previously indicated, Rhea and Robert allegedly were
cotenants in Tracts One and Two. In a cotenancy, the
co-owners must share the income generated from the property
as well as necessary expenses for the property's
preservation. Trevino v. Trevino, 64 S.W.3d 166, 174
(Tex. App.-San Antonio 2001, no pet.); Walston v.
Walston, 971 S.W.2d 687, 696-97 (Tex. App.-Waco 1998,
pet. denied); accord Arriola v. Kutscherousky, No.
07-15-00004-CV, 2015 Tex.App. LEXIS 9450, at *16 (Tex. App.-
Amarillo Sept. 4, 2015, no pet.) (mem. op.) (noting a
cotenant's right to receive his share of royalties or
profits less expenses). The sum and substance of Robert's
traditional motion for summary judgment focused on
expenditures from a joint bank account and whether
limitations ran upon claims related to those expenditures.
Nothing was said of his purported failure to share profits
generated from his use of Tracts One and Two, irrespective of
whether he and Rhea were in a fiduciary relationship. He
presented no evidence establishing elemental matters like 1)
when those purported claims accrued, 2) when, if ever, he
ceased his cattle operations on the two tracts, or 3) when
Rhea knew of his cattle operations.
finally comment on Robert's failure to aver in his motion
for summary judgment that limitations had expired as to the
conversion and unjust enrichment claims urged by Rhea.
Generally, it is error to grant summary judgment on claims
that were not addressed in the motion. G & H Towing
Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per
curiam). Robert attempts to avoid this rule by invoking an
exception holding that the purported error is harmless
"when the omitted cause of action is precluded as a
matter of law by other grounds raised in the case."
Id. at 298. We find the exception inapplicable for
he did not negate Rhea's claim for a share of the income
generated from Tracts One and Two. This demand for a
proportionate share may or may not fall within the scope of
either conversion or unjust enrichment, irrespective of any
fiduciary relationship. It may or may not fall outside the
applicable limitations periods, irrespective of any fiduciary
relationship. Yet, it is not our obligation to resolve those
matters on behalf of Robert, especially when he said nothing
of the claim, its elements, or its viability in his appellate
brief. Thus, the G & H exception has not been
Robert failed to prove, as a matter of law, that limitations
expired on all of Rhea's claims. We reverse the final
summary judgment denying Rhea recovery and remand the cause
to the trial court.