UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10574
Summary Calendar
JOAN TERRY IMAN
Plaintiff-Appellant,
VERSUS
CAROLYN FOSTER TERRY,
Individually and as Independent
Executrix of the Estate of
I W Terry Jr Deceased; SUSAN
TERRY CONNOLLY; JAMES IRVIN
TERRY; MELINDA TERRY HINDS
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
(No. 6:00-CV-9-C)
October 26, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Joan T. Iman appeals the district
court’s grant of summary judgment on her claims for breach of
fiduciary duty and common law fraud. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
BACKGROUND
The essential facts are not in dispute. I.W. Terry died
intestate in 1940, leaving a wife and two children, I.W. Jr. and
Joan. At the time of their father’s death, I.W. Jr. was 14 and
Joan, 6. Under Texas’s intestacy laws, one-half of Mr. Terry’s
estate passed to Mrs. Terry and I.W. Jr. and Joan each received a
one-fourth share. Mrs. Terry was appointed administratrix of
the estate and served in that capacity until 1957, when the
estate was closed. No guardianship proceedings were ever
instituted for the benefit of I.W. Jr. or Joan, and the
administration of their father’s estate was never challenged.
When the estate closed, I.W. Jr. was 31 and Joan, 24. Mrs. Terry
died intestate in 1978, and no administration of her estate was
conducted. I.W. Jr. died in 1996, leaving his property to his
wife and three children.
Joan filed this suit in early 2000 against the beneficiaries
of I.W. Jr.’s estate (hereinafter “Defendants”). She contends
that during the administration of her father’s estate, I.W. Jr.
“managed, controlled, and directed the disposition of assets of
the Estate, thereby usurping the duties, rights, and
responsibilities” of Mrs. Terry as administratrix. Joan brought
claims for breach of fiduciary duty and common law fraud and
sought the imposition of a constructive trust against the assets
of I.W. Jr.’s estate. She does not assert any wrongdoing by
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Defendants themselves. Joan is now a resident of Oklahoma and
Defendants all reside in Texas. The district court granted
Defendants’ motion for summary judgment, and Joan made a timely
appeal.
DISCUSSION
Claims disposed of on summary judgment are reviewed de novo.
See Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998). “Summary judgment is appropriate, when, viewing
the evidence in the light most favorable to the nonmoving party,
the record reflects that no genuine issue of any material fact
exists, and the moving party is entitled to judgment as a matter
of law.” Urbano v. Continental Airlines, Inc., 138 F.3d 204, 205
(5th Cir. 1998) (citing Celotex Corp. v. Catrett, 477 U.S. 317,
322-24 (1986))
I.
As an initial matter, we note that this suit ought to be
time-barred. Under Texas law, and unless there is some
suggestion that an aggrieved party was prevented from discovering
essential facts, no civil action may be brought later than five
years after the cause accrued. See In the Matter of the Estate
of Rex. L. McGarr, 10 S.W.3d 373, 376 (Tex. App.--Corpus Christi
2000, pet. denied). In her complaint, Joan argues that she was
prevented from discovering her brother’s alleged self-dealing
until a “routine investigation of various West Texas real
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property and probate records revealed inconsistences and
questions regarding I.W. Terry, Jr.’s conduct . . . .” This
argument is likely self-defeating, however, for Texas courts have
held that “one is charged with constructive notice of the actual
knowledge that one could gain by an examination of the public
records.” Id. (citing Mooney v. Harlin, 622 S.W.2d 83, 85 (Tex.
1981)).
Whatever the merits of her rationale for bringing this suit
as late as she has, we note that nowhere in Defendants’ summary
judgment papers did they raise the statute of limitations.
Although Defendants did in their answer claim that Joan’s suit
was time-barred, we have not considered whether a defendant’s
having pled the statute of limitations would allow a court to
enter summary judgment on that basis. At least one of our sister
circuits has considered this question and has determined that a
court does not err in entering judgment under such circumstances.
See Grand Rapids Plastics, Inc. v. Lakian, 188 F.3d 401, 406 (6th
Cir. 1999); cf. Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir.
1999)(noting that a court cannot ordinarily raise an affirmative
defense sua sponte). We need not resolve this question today,
however, for the case will come out the same no matter which way
we answer. Accordingly, we express no opinion on the timeliness
of Joan’s lawsuit.
II.
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Joan seeks the imposition of a constructive trust on her
brother’s estate for his alleged misconduct during administration
of their father’s estate. A constructive trust lies where a
“‘person holding title to property would profit by a wrong or
would be unjustly enriched if he were permitted to keep the
property.’” See In the Matter of Monnig’s Dept. Stores, Inc.,
929 F.2d 197, 201 (5th Cir. 1991)(quoting Omohundro v. Matthews,
161 Tex. 367, 341 S.W.2d 401, 405 (1960))(emphasis added). Thus,
property held by one but belonging to another under Texas’s
intestacy provisions is appropriate for a constructive trust. In
that circumstance, the possessor of the estate would serve as
trustee for the benefit of the decedent’s heirs. Where the
administrator (or administratrix) of an intestate estate is also
its possessor, the administrator is charged with distributing the
decedent’s property to the heirs in accordance with Texas’s
intestacy provisions. The administrator is a fiduciary to the
heirs. As a fiduciary, the administrator must account for all
estate property and must show that it was distributed fairly.
See Texas Bank & Trust Co. v. A.E. Moore, 595 S.W.2d 502, 508-09
(Tex. 1980). Absent a special legal relationship, like that
between an administrator and a beneficiary, a constructive trust
will not lie unless there is proof of fraud and tracing between
trust assets and the disputed property. See Monnig’s Dept.
Stores, Inc., 929 F.2d at 201.
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In this case, a trust effectively arose upon Mrs. Terry’s
being appointed administratrix of her husband’s estate, Mrs.
Terry being the constructive trustee and I.W. Jr. and Joan, the
beneficiaries. Had there been any suggestion that Mrs. Terry
herself misapportioned the estate between the two children, then
as a fiduciary to Joan she could be called to account for her
actions. But there is no such accusation. Instead, Joan
contends that I.W. Jr. interfered with Mrs. Terry’s
responsibilities as administratrix. Texas law does not provide
that a brother is his sister’s fiduciary under such
circumstances. Absent a special legal relationship between I.W.
Jr. and Joan with respect to their father’s estate, Joan must
prove fraud and a nexus between trust assets and her brother’s
estate. This she admittedly has not done, and she does not
suggest that with further discovery she can meet either
requirement.
CONCLUSION
There being no genuine issue of material fact on one or more
elements in each of Joan’s bases for relief, we conclude that
summary judgment for the Defendants was proper. Having
considered in full her argument for imposing a constructive
trust, we need not reach Joan’s argument that the district court
erred in not considering her response to Defendants’ motion for
summary judgment.
AFFIRMED.
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