IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
DECEMBER 10, 2002
______________________________AUDREY LEE WILLIAMS,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 252nd DISTRICT COURT OF JEFFERSON COUNTY;
NO. 57,292; HON. LEONARD GIBLIN, PRESIDING _______________________________
Before QUINN and REAVIS, JJ., and BOYD, SJ. (1)
In one issue, appellant Audrey Lee Williams appeals from a judgment revoking her community supervision, adjudicating her guilty based upon her plea of guilty, and sentencing her to two years imprisonment. In one issue, she complains that the trial court erred by failing to consider the full possible range of punishment. We affirm the judgment.
Background
Appellant pled guilty in 1993 to the offense of securing execution of a document by deception. In accordance with a plea bargain, the court deferred adjudication of her guilt, placed her on probation for five years, and ordered restitution. Appellant's probation was later extended to April 1, 2003. The State eventually filed a motion to revoke probation on May 14, 2002. Appellant pled true to the allegations contained in the motion. Thereafter, the court granted the motion, adjudicated appellant's guilt, and levied the sentence previously mentioned.
Jurisdiction
Initially, we address the State's contention that we have no jurisdiction because appellant filed a general notice of appeal as opposed to one conforming to Texas Rule of Appellate Procedure 25.2(b)(3). The latter provides that if the appeal is from a judgment rendered on a plea of guilty and the punishment assessed did not exceed the punishment recommended by the prosecutor, the notice of appeal must:
(A) specify that the appeal is for a jurisdictional defect;
(B) specify that the substance of the appeal was raised by written motion and
ruled on before trial; or
(C) state that the trial court granted permission to appeal.
Tex. R. App. P. 25.2(b)(3).
Rule 25.2(b)(3) applies when the appellant asserts issues relating to his conviction. Kirtley v. State, 56 S.W.3d 48, 51-52 (Tex. Crim. App. 2001); Vidaurri v. State, 49 S.W.3d 880, 884-85 (Tex. Crim. App. 2001). (2) As alluded to before, the appellant here contests neither her original plea of guilty nor subsequent adjudication of guilt. Rather, she asserts error relating to conduct that occurred during the punishment phase of the trial, i.e. the punishment levied. Consequently, her complaint does not relate to her conviction. And, because it does not, Rule 25.2(b)(3) was and is inapplicable. Thus, we reject the proposition that we have no jurisdiction over the appeal simply because appellant filed a general notice of appeal.
Issue One
Again, through her only issue, appellant contends that the trial court erred when it failed to consider the full range of punishment. We overrule the contention.
To preserve a complaint for review, the record must show that the complainant urged it to the trial court by a timely request, objection, or motion stating the grounds for the ruling sought with sufficient specificity to make the trial court aware of the complaint unless the grounds are apparent from the record. Tex. R. App. P. 33.1(a); Vidaurri, 49 S.W.3d at 885-86. The record illustrates that appellant never contended below (by objection, motion or otherwise) that the trial court failed to consider the full range of punishment. Thus, the issue was not preserved for review.
Nor did appellant provide us with citation to any legal authority supporting her short argument that the failure to consider the full range of punishment constitutes reversible error. This too results in the waiver of the matter. See Tex. R. App. P. 38.1(h) (requiring that appellants provide the reviewing court with citation to legal authority); Pachecano v. State, 881 S.W.2d 537, 545 (Tex. App.--Fort Worth 1994, no pet.) (holding that because the appellant did not provide citation to legal authority, he waived the complaint).
Accordingly, the judgment of the trial court is affirmed.
Brian Quinn
Justice
Publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. gov't
code ann. §75.002(a)(1) (Vernon Supp. 2002).
2.
At a May 2004 meeting with Edward Jones, Delmer learned of the transfer of the funds to A.G. Edwards and that he was no longer named on the account. In August 2004, Delmer discovered forged signatures were used to transfer funds from the joint account. Isabel died in April 2006.
Delmer filed the present suit in May 2006 seeking damages against Marvin and Janet for conversion and tortious interference with inheritance rights. He also sought declaratory and injunctive relief. Marvin and Janet answered by general denial and affirmatively plead the applicable statute of limitations barred all of Delmer’s claims. Delmer amended his petition adding causes of action against Marvin and Janet for breach of fiduciary duty, fraud, and unjust enrichment and interposed the discovery rule and fraudulent concealment in response to their limitations defense. Marvin and Janet filed a traditional motion for summary judgment on Delmer’s live petition contending that from the face of the document all claims alleged were barred by limitations and the discovery rule lacked application because as a matter of law Delmer’s claims were not inherently undiscoverable. Delmer filed a response with supporting evidence, arguing the discovery rule and fraudulent concealment in avoidance of the limitations claim. The trial court granted the motion of Marvin and Janet and severed Delmer’s claims against the brokerage firms. The court denied Delmer’s motion for new trial and this appeal followed.
Issue
Delmer presents the following single issue:
Whether Defendants negated as a matter of law both Plaintiff’s assertions of the discovery rule and of fraudulent concealment in order to establish Defendants’ defense of limitations in order to justify summary judgment in their favor as entered by the Trial Court.
We review the granting of a traditional summary judgment motion de novo, applying familiar standards:
A. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
B.In determining whether there is a disputed issue of material fact precluding summary judgment, evidence favorable to the non-movant will be taken as true.
C.Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
A defendant moving for summary judgment on the affirmative defense of limitations must conclusively establish the defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Accordingly, it is for the defendant (1) to conclusively prove when the cause of action accrued, and (2) negate the discovery rule, if pleaded and applicable, by proving as a matter of law there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of his injury. Id. If the movant establishes the statute of limitations bars the action, the non-movant must then adduce summary judgment proof raising a fact issue. Id. Here the parties agree that Delmer’s claims are subject to two- or four-year limitations periods. Their disagreement lies with the applicability of the discovery rule and fraudulent concealment.
Discovery Rule
Unlike the tolling feature of fraudulent concealment, the discovery rule defers accrual of a cause of action until the plaintiff knows, or through the exercise of reasonable diligence, should know of facts giving rise to the cause of action. Computer Assoc. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996). The discovery rule is “a very limited exception to statutes of limitations,” and applies only when the plaintiff’s injury is both (1) inherently undiscoverable, and (2) objectively verifiable. Id. at 455-56. An injury is inherently undiscoverable if, by its nature, it is unlikely to be discovered during the applicable limitation period despite the exercise of due diligence. S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996) (citing Altai, 918 S.W.2d at 456). The question is not whether the particular injury was actually discovered by the claimant within the limitation period, but whether “it was the type of injury that is generally discoverable by the exercise of reasonable diligence.” HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998); see Conoco, Inc. v. Amarillo Nat'l Bank, 14 S.W.3d 325, 328 (Tex. App.–Amarillo 2000, no pet.) (finding rule inapplicable in case alleging conversion of collateral). In other words, whether the discovery rule applies is determined “categorically.” HECI Exploration, 982 S.W.2d at 886.
The type of injury Delmer’s suit against Marvin and Janet alleges is their unauthorized transfer of assets from a brokerage account of which Delmer was joint owner. We see nothing about such an injury to make it inherently undiscoverable. Even where, as here, the injured account co-owner does not receive account statements, the fact that assets have been transferred from the account without his authorization is readily discoverable. A simple request to review an account statement, addressed to the co-owner who receives the statements or to the brokerage firm itself, should bring the unauthorized transfer to light. The discovery rule is reserved for the types of injuries not ordinarily discoverable, even though due diligence has been used. Altai, 918 S.W.2d at 456.
Delmer points to the specifics of this particular brokerage account, noting only his mother’s address was listed on the account and it required the signatures of all three account holders to effect a transfer of assets from the account. But Delmer’s argument ignores the requirement that discovery-rule analysis focus on the type of injury. See, e.g., HECI Exploration, 982 S.W.2d at 886 (discussing Altai, 918 S.W.2d at 457, noting that trade secret misappropriation “generally” is capable of detection within the time allotted for bringing suit, although the particular injury may not have been discovered). The discovery rule does not excuse a party from exercising reasonable diligence in protecting its own interests. Pitman v. Lightfoot, 937 S.W.2d 496, 510 (Tex.App.–San Antonio 1992, no writ). We find the injury Delmer alleges was not inherently undiscoverable, and the discovery rule has no application.
Fraudulent Concealment
A defendant who by conduct or legal relationship is under a duty of disclosure and who fraudulently conceals the existence of a cause of action from the party to whom he owes the duty, is estopped from relying on the defense of the statute of limitations until the other party learns of the cause of action or should have learned of its existence through the exercise of reasonable diligence. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983). “The elements of fraudulent concealment are: (1) the existence of the underlying tort; (2) the defendant's knowledge of the tort; (3) the defendant's use of deception to conceal the tort; and (4) the plaintiff's reasonable reliance on the deception.” Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 439 (Tex.App.–Fort Worth 1997, pet. denied); see HECI Exploration, 982 S.W.2d at 886. The defendant’s deception occurs through “active suppression of the truth or failure to disclose when the defendant is under a duty to disclose.” Bartlett, 958 S.W.2d at 439. A plaintiff relying on fraudulent concealment must have reasonably relied on the defendant’s active misrepresentations or, if applicable, its silence. Bartlett, 958 S.W.2d at 439. However, reliance becomes unreasonable, and the tolling period ends, once the plaintiff knows or should know of the concealment. Id. If the movant of a traditional motion for summary judgment on the statute of limitations conclusively proves entitlement to this affirmative defense, the non-movant, alleging fraudulent concealment, must present competent summary judgment evidence establishing an issue of fact on each element of fraudulent concealment. See KPMG Peat Marwick, 988 S.W.2d at 749.
Delmer argues that the artifice Marvin and Janet employed to conceal the conversion of the joint account proceeds was delivery to Edward Jones of documents bearing the forged signatures of Delmer, Isabel and Arnold. But that argument simply describes the underlying tort of conversion. It does not describe active misrepresentations to conceal the tort, nor Delmer’s reasonable reliance on the representations. The presentation of forged signatures was the means of the underlying conversion, not the means of its concealment.
In a variation on the same argument, Delmer attempts to raise a fact issue on the misrepresentation and reliance elements by contending that Marvin and Janet effectively deceived him through their deception of Edward Jones, so that it allowed transfer of funds from the joint account without Delmer’s authorization. Further, he asserts, neither Edward Jones nor Marvin and Janet disclosed the wrongful transaction to Delmer. Delmer says he relied on the silence of Edward Jones, and that of Marvin and Janet, to his injury.
We find there is no evidence that Edward Jones stood in Delmer’s shoes vis-a-vis any fraudulent representations perpetrated by Marvin and Janet and concerning the joint account. Cf. Sterling Trust Co. v. Adderley, 168 S.W.3d 835, 847 (Tex. 2005). Further, we see no evidence in the summary judgment record of conduct by or a legal relationship in Marvin and Janet creating a duty in them to disclose to Delmer the February and March 2001 transfers of funds from the joint account. See Hoggett v. Brown, 971 S.W.2d 472, 487 (Tex. App.–Houston [14th Dist.] 1997, pet. denied) (listing situations giving rise to duty to disclose); Ralston Purina Co. v. McKendrick, 850 S.W.2d 629, 633 (Tex.App.–San Antonio 1993, writ denied) (existence of duty to disclose information is a question of law).
Finally, as we have noted, the facts which Delmer alleges were fraudulently concealed from him were readily discoverable through the exercise of reasonable diligence. We conclude there is no summary judgment evidence raising an issue of fact on fraudulent concealment. Accordingly, we overrule Delmer’s appellate issue.
In a motion we have carried with the case, Marvin and Janet seek our imposition of an unspecified sanction on Delmer. The motion is denied.
Having overruled Delmer’s appellate issue, we affirm the judgment of the trial court.
James T. Campbell
Justice