Estate of Radelat

          On Appeal from Probate Court No. 1 Tarrant County, Texas Trial Court No. 1994-0001187-1-A

          Before Birdwell, Bassel, and Wallach, JJ.

          MEMORANDUM OPINION

          Wade Birdwell, Justice.

         Appellee Lourdes Radelat sued her mother and brother, appellants Ana and Andrew Radelat, over their handling of an estate matter. Appellants alleged that the suit was barred by limitations, but the trial court struck that defense when it rendered death-penalty sanctions.

         On appeal, appellants cite the rule that before death-penalty sanctions may issue, the misconduct must justify a presumption that the sanctioned party's claim or defense lacks merit. Appellants argue that because Lourdes's suit was apparently untimely, the merit of their limitations defense can cut through the severity of any misconduct and save the case from death-penalty sanctions.

         We hold that appellants' misconduct shows that this limitations defense lacks merit. The nature of the misconduct-deception of the court, discovery concealment, and violations of a temporary injunction, inter alia-goes hand in hand with a belief that appellants fraudulently concealed the truth about the estate from Lourdes. In particular, appellants' efforts to thwart discovery of how they handled estate matters are relevant to whether they also concealed estate matters from Lourdes. That fraudulent concealment has the power to toll limitations, thus justifying a presumption that the limitations defense lacks merit. We therefore affirm the death-penalty sanctions.

         I. Background

         On October 29, 2012, Lourdes filed suit against appellants. The petition explained that Lourdes's father Felipe Radelat died in March of 1994. In his will, Felipe provided for the creation of two trusts to contain the bulk of his assets. According to Lourdes, $600, 000 of the estate's assets should have been put in the "Family Shelter Trust," and the rest should have been put in the "Marital Deduction Trust." Felipe named his wife Ana as the executor of his estate, and he named Ana, Lourdes, and his son Andrew as co-trustees for the trusts. It is undisputed that between 1994 and 2012, Ana did not fund the trusts.

         Lourdes alleged that she did not know she was meant to be co-trustee and beneficiary of the trusts; she only discovered this fact in 2012, when appellants attempted to sell real estate that rightfully belonged to one of the trusts. Up until that point, Lourdes said, appellants had withheld the will from her and misled her about its content. Lourdes alleged that appellants breached their fiduciary duties by concealing Felipe's estate plan, failing to properly fund the trusts, and self-dealing with trust property, among other misdeeds. Lourdes demanded a statutory accounting for the trusts.

         Appellants filed a general denial and asserted counterclaims and several defenses, including limitations. Lourdes responded that fraudulent concealment should toll limitations. Also, Lourdes added her son Derek as a plaintiff in an attempt to defeat limitations. Meanwhile, the trial court granted a temporary injunction, which restrained appellants from using any funds belonging to the Family Shelter Trust or impairing the value of either trust, among other restrictions.

         As the litigation wore on, Lourdes filed a motion to compel production of certain financial records. The motion was granted on November 13, 2014.

         Two months later, Lourdes filed a motion for contempt and sanctions, alleging that appellants had disregarded the trial court's discovery order and violated the temporary injunction by collecting rent from a Miami house that belonged to the Family Shelter Trust. The trial court granted the motion, assessed attorney's fees of $1, 400, barred appellants from using financial documents in support of their claims, and directed appellants to provide an accounting of any rent received from the Miami property.

         Lourdes later filed a second motion for sanctions that complained of several more forms of misconduct by appellants. Lourdes explained that appellants delivered the accounting of rent seventy days after the court-ordered deadline and that when it was eventually delivered, the accounting was false. In the accounting, appellants claimed that they had not received any rental income from the Miami property. However, Lourdes submitted documents confirming that appellants had indeed rented out the property at a rate of $2, 500 per month, with a $7, 500 moving fee as well. The document explained that after this rental arrangement ended, appellants had allowed a friend to live there rent free, without approval of the court, in exchange for repairs to the property. Lourdes also submitted documents showing that appellants had listed the Miami property for sale in violation of the temporary injunction. Further, Lourdes offered proof that appellants failed to appear for depositions on multiple occasions, twice for Ana and three times for Andrew. Finally, Lourdes submitted an affidavit from her attorney describing how Ana had consistently malingered in her litigation responsibilities. Attached were deposition transcripts in which Ana had repeatedly refused to answer questions even through an interpreter, claiming that she did not understand legal matters or the English language despite having lived in the United States for sixty years. However, the attorney affiant testified that at other points in her depositions, Ana had answered questions phrased in English without the aid of an interpreter, sometimes even responding in English, and Lourdes also submitted multiple English-language documents written by Ana. Later, Lourdes submitted testimony from Ana's former attorney explaining that she had participated in complex legal matters without the aid of an interpreter, all of which suggested that Ana did understand legal matters and the English language after all.

         On December 16, 2015, the trial court ordered appellants to show cause why they should not be held in contempt. After granting appellants' request for a continuance, on January 13, 2016, the trial court once again ordered appellants to appear and show cause. The trial court then suggested and eventually ordered an independent medical examination of Ana. According to the trial ...