AFFIRM; and Opinion Filed April 19, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01720-CV
FREDERICK DUNMORE AND SANDRA DUNMORE, Appellants
V.
CHICAGO TITLE INSURANCE COMPANY, Appellee
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. TX-09-31763
OPINION
Before Justices Bridges, Fillmore, and Myers
Opinion by Justice Fillmore
Appellants Frederick and Sandra Dunmore appeal a summary judgment granted in favor
of appellee Chicago Title Insurance Company. In three issues, appellants contend the trial court
erred by (1) granting summary judgment in favor of appellee based on a statute of limitations
affirmative defense, (2) finding accrual of appellants’ claims was not tolled by the “discovery
rule,” and (3) rendering a judgment describing appellants as defendants in rem. We affirm the
trial court’s judgment.
Background
On July 30, 2001, appellants signed an agreement to purchase Lots 8 and 9 of Block 8250
of the Southwood Estates Addition, City of Lancaster, Dallas County from Rolene Long (Long).
The agreement designated appellee the escrow agent for the transaction, and provided that Long
would furnish to appellants an owner policy of title insurance issued by appellee. The closing of
the transaction was to occur in the office of appellee on August 24, 2001. The documents
executed at that time—the General Warranty Deed With Vendor’s Lien executed by Long
(Warranty Deed 1), the Real Estate Certification and VA Escape Clause/FHA Escape Clause
executed by Long and appellants, and the Deed of Trust (Deed of Trust 1), Maximum Allowable
Charges Authorization, Survey Receipt and Acknowledgment With Hold Harmless, Waiver of
Inspection, Deed Restrictions Notice, and Purchaser’s Affidavit executed by appellants—
reference only Lot 9. The policy of title insurance issued by appellee on September 7, 2001
insured only Lot 9. Warranty Deed 1 and Deed of Trust 1 were recorded by appellee in the
Dallas County real property records in September 2001. Because Deed of Trust 1 encumbered
only Lot 9, appellants’ mortgage company collected from appellants, escrowed, and paid
property taxes assessed against Lot 9 only.
On January 25, 2003, appellants executed a Deed of Trust (Deed of Trust 2) to secure
refinancing of the existing mortgage on the property. Deed of Trust 2 references only Lot 9.
Deed of Trust 2 was filed in the Dallas County real property records on April 11, 2003.
On October 16, 2009, Dallas County, City of Lancaster, Lancaster Independent School
District, Dallas County School Equalization Fund, Parkland Hospital District, and Dallas County
Community College District (the taxing authorities) filed the lawsuit underlying this appeal
against Long as the record title owner of Lot 8 seeking to collect delinquent property taxes for
the years 2002 through 2009. Appellants submitted a claim to appellee for payment of the
unpaid property taxes on March 16, 2010. By amended petition, the taxing authorities joined
appellants as defendants in the lawsuit because, but for the error in the legal description of the
property conveyed, appellants would have been the record title owners of Lot 8. Long joined
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appellee as a third-party defendant in the lawsuit. Appellants filed a cross-claim against appellee
based on the incomplete legal description in Warranty Deed 1 and Deed of Trust 1. Appellants
asserted causes of action against appellee for breach of contract, negligence, and breach of
fiduciary duty arising from violations of the insurance code and the deceptive trade practices act
(DTPA). 1 Appellee raised the affirmative defenses of two and four-year statutes of limitation,
accord and satisfaction, laches, payment of all sums to which appellants were entitled, and
exclusions under the owner policy of title insurance for fees, taxes, and assessments by any
taxing authority. Upon the motion of the taxing authorities, the trial court dismissed Long from
the lawsuit.
Appellee accepted title insurance coverage for penalties, interest, and court costs relating
to unpaid taxes because of the failure of Warranty Deed 1 to transfer title to Lot 8. That amount,
through July 2010, was $4,418.33, which included $3,815.23 in penalties and interest and
$603.10 in court costs. In their cross-claim, appellants acknowledge appellee paid them
$4,418.33, representing “penalty, interest and court costs sought by” the taxing authorities.
Appellee advised appellants, however, that appellants were responsible for unpaid taxes on Lot
8.
Appellee obtained a General Warranty Deed With Vendor’s Lien executed by Long on
July 16, 2010 which correctly references Lots 8 and 9 (Warranty Deed 2). Warranty Deed 2 was
recorded in the Dallas County real property records on December 30, 2010. It provides that it
was recorded in lieu of and substitution for Warranty Deed 1 recorded on September 7, 2001, to
add Lot 8 to the legal description of the property, Lot 8 having been inadvertently omitted in
1
Appellants did not specify in their pleading what alleged violation of the insurance code or the DTPA constituted a breach of fiduciary
duty.
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Warranty Deed 1. Appellee also reimbursed Long for attorney’s fees she incurred as a result of
the lawsuit filed by the taxing authorities against her as the record title owner of Lot 8.
Appellee filed a traditional motion for summary judgment “on its affirmative defenses.”
Without stating the basis, the trial court rendered summary judgment in favor of appellee.
Following a bench trial, the trial court signed a final judgment on the taxing authorities’ claims,
describing appellants as defendants in rem and imposing a lien on Lot 8 for the unpaid taxes,
interest, penalties, and costs. Appellants filed this appeal, asserting the trial court erred in
granting summary judgment in favor of appellee and in rendering final judgment in favor of the
taxing authorities.
Summary Judgment
In their first issue, appellants assert the trial court erred by granting summary judgment
based on limitations because appellee, as escrow agent, “extended [its] actions by obtaining and
filing a correction deed [for Lot 8] on December 30, 2010 and paying Long’s attorney for
services in February 2011.” In their second issue, appellants contend the trial court erred in
granting summary judgment based on limitations, because the discovery rule tolled accrual of
appellants’ claims against appellee as an escrow agent until the corrected Warranty Deed 2 was
filed by appellee in the Dallas County real property records on December 30, 2010. As
appellants’ first and second issues concern the granting of summary judgment on appellants’
claims of breach of contract, negligence, and breach of fiduciary duty based on limitations, we
consider appellants’ first and second issues together.
Standard of Review
We review the grant of summary judgment de novo. Travelers Ins. Co. v. Joachim, 315
S.W.3d 860, 862 (Tex. 2010). A summary judgment under rule of civil procedure 166a(c) is
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properly granted when the movant establishes that there is no genuine issue of material fact and
it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 548 (Tex. 1985); Stone v. Midland Multifamily Equity REIT, 334 S.W.3d
371, 373 (Tex. App.—Dallas 2011, no pet.). In reviewing a summary judgment, we take as true
all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve
any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
Where, as here, a summary judgment order does not specify the grounds upon which
relief was granted, the reviewing court will affirm the judgment if any one of the theories
advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380
(Tex. 1993). It is the burden of appellants to show that each of the grounds asserted in the
motion is insufficient to support the judgment. Jones v. Hyman, 107 S.W.3d 830, 832 (Tex.
App.—Dallas 2003, no pet.); Holloway v. Starnes, 840 S.W.2d 14, 18 (Tex. App.—Dallas 1992,
writ denied).
Law Applicable to Limitations Defense
A summary judgment movant on limitations bears the burden to “(1) conclusively prove
when the cause of action accrued, and (2) negate the discovery rule, if it applies and has been
pleaded or otherwise raised, by proving as a matter of law that 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 its injury.” KPMG Peat Marwick v. Harrison Cnty. Hous.
Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If the movant does this, the nonmovant must
adduce evidence raising a fact issue in avoidance of limitations. Id.; Equitable Recovery, L.P. v.
Heath Ins. Brokers of Tex., L.P., 235 S.W.3d 376, 385 (Tex. App.—Dallas 2007, pet. denied).
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Appellants alleged causes of action against appellee for breach of contract, negligence,
and breach of fiduciary duty. Appellants’ claims for breach of fiduciary duty and breach of
contract are subject to four-year limitations periods. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.004(5) (West 2002) (breach of fiduciary duty subject to four-year limitations period); TEX.
CIV. PRAC. & REM. CODE ANN. § 16.051 (West 2008); Stine v. Stewart, 80 S.W.3d 586, 592
(Tex. 2002) (four-year statute of limitations is applicable to breach-of-contract claims); Pollard
v. Hanschen, 315 S.W.3d 636, 641 (Tex. App.—Dallas 2010, no pet.) (four-year statute of
limitations applies to breach of contract and breach of fiduciary duty claims). The statute of
limitations on appellants’ negligence claim is two years from the date the cause of action
accrued. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2012); Proulx v.
Wells, 235 S.W.3d 213, 215 (Tex. 2007) (per curiam).
A statute of limitations is a procedural device operating as a defense to limit the remedy
available from an existing cause of action. Cadle Co. v. Wilson, 136 S.W.3d 345, 350 (Tex.
App.—Austin 2004, no pet.). A cause of action accrues, and the statute of limitations begins to
run, when facts come into existence that authorize a claimant to seek a judicial remedy. Exxon
Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex. 2011) (op. on reh’g) (citing
Provident Life & Accident Ins. Co.v. Knott, 128 S.W.3d 211, 221 (Tex. 2003)). The general rule
governing when a claim accrues, to start limitations running, is the “legal injury rule,” which
provides that a claim accrues “when a wrongful act causes some legal injury, even if the fact of
injury is not discovered until later, and even if all resulting damages have not yet occurred.”
Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997).
“It is well-settled law that a breach of contract claim accrues when the contract is
breached.” Stine, 80 S.W.3d at 592; see also Foster v. Foster, 884 S.W.2d 497, 501 (Tex. App.
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—Dallas 1993, no writ) (claim for breach of contract accrues when the contract is breached). A
cause of action for negligence accrues on the date the negligent injury-producing act is
committed. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514
(Tex. 1998). Breach of fiduciary duty claims generally accrue when the claimant knows or in the
exercise of ordinary diligence should know of the wrongful act and resulting injury. Villarreal v.
Wells Fargo Brokerage Servs., 315 S.W.3d 109, 119 (Tex. App.—Houston [1st Dist.] 2010, no
pet.); see also Murphy, 964 S.W.2d at 271. “[T]he commencement of the limitations period may
be determined as a matter of law if reasonable minds could not differ about the conclusion to be
drawn from the facts in a record.” Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998).
Analysis of Limitations Defense
Appellants’ breach of contract, negligence, and breach of fiduciary duty causes of action
are based on the allegation that appellee, as escrow agent, failed to properly describe and include
Lot 8 in Warranty Deed 1 and Deed of Trust 1 filed in the Dallas County real property records on
September 7, 2001, more than nine years before appellants filed their cross-claim against
appellee. Because appellants filed their cross-claim against appellee on March 18, 2011, 2 their
negligence claims are time-barred if they accrued before March 18, 2009, and their breach of
contract and breach of fiduciary duty claims are time-barred if they accrued before March 18,
2007, unless there is some basis for tolling the limitations periods.
In their second issue, appellants assert the trial court erred to the extent it granted
summary judgment based on limitations, because the discovery rule tolled the accrual of
appellants’ causes of action for negligence, breach of contract, and breach of fiduciary duty.
2
Appellants filed a cross-claim against appellee on January 5, 2011. However, the order joining appellee as a third-party defendant was not
signed until January 6, 2011. Appellants again filed a cross-claim against appellee on March 18, 2011. Assuming appellants’ January 5, 2011
cross-claim was a viable pleading, even though filed before appellee was made a party to cause number TX-09-31763, it would not affect our
conclusions.
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Appellants assert that because appellee, as escrow agent, owed them a fiduciary duty, they had
no obligation to question documentation transferring ownership of the property to them in
August 2001 and that appellee’s breach of its fiduciary duty was not discoverable by appellants
until the corrected Warranty Deed 2 was filed by appellee in the Dallas County real property
records on December 30, 2010. Conversely, appellee argues appellants knew or should have
known of the error in the legal description of the property at the August 2001 real estate closing,
or at least in January 2003 when appellants executed Deed of Trust 2, well-beyond four years
before appellants filed suit against appellee.
The discovery rule is a limited exception to the general principle that a statute of
limitations begins to run when an injury occurs, regardless of when the plaintiff learns of the
injury. See Computer Assocs. Int’l v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996) (op. on
reh’g). The discovery rule “defers accrual of a cause of action until the plaintiff knew or,
exercising reasonable diligence, should have known of the facts giving rise to the cause of
action.” Id.; see also Murphy, 964 S.W.2d at 270; Heath Ins. Brokers, 235 S.W. 3d at 386;
Barker v. Eckman, 213 S.W.3d 306, 311–12 (Tex. 2006) (when applicable, discovery rule tolls
accrual of a cause of action such that limitations will not begin to run until plaintiff knew or
should have known, in the exercise of reasonable diligence, of the facts giving rise to the cause
of action). The discovery rule applies “only when the “nature of the plaintiff’s injury is both
inherently undiscoverable and objectively verifiable.” Shell Oil Co. v. Ross, 356 S.W.3d 924,
930 (Tex. 2011) (quoting Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001));
see also HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998). An injury is
inherently undiscoverable if by its nature, it is “unlikely to be discovered within the prescribed
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limitations period despite due diligence.” Ross, 356 S.W.3d at 930 (quoting S.V. v. R.V., 933
S.W.2d 1, 7 (Tex. 1996)).
“An escrow agent owes a fiduciary duty to both parties, seller and buyer, to the
underlying contract.” Watkins v. Williamson, 869 S.W.2d 383, 387 (Tex. App.—Dallas 1993, no
writ). In cases where alleged injuries arise from a breach of fiduciary duty, a fiduciary’s
misconduct may be inherently undiscoverable. See S.V., 933 S.W.2d at 8; Altai, 918 S.W.2d at
456. Nonetheless, once the fiduciary’s conduct becomes apparent, the claimant cannot ignore it,
regardless of the fiduciary nature of the relationship. See S.V., 933 S.W.2d at 8; see also Altai,
918 S.W.2d at 456 (person owed a fiduciary duty has some responsibility to ascertain when an
injury occurs). In other words, even in a breach of fiduciary duty case where a fiduciary’s
misconduct is inherently undiscoverable, a breach of fiduciary duty claim accrues when the
claimant knows or in the exercise of ordinary diligence should know of the wrongful act and
resulting injury. See Murphy, 964 S.W.2d at 271.
In this case, appellee’s wrongful act and appellants’ resulting injury were not inherently
undiscoverable. The undisputed summary-judgment evidence indicates that at the real estate
closing on August 24, 2001, appellants signed the Real Estate Certification, VA Escape
Clause/FHA Escape Clause, Deed of Trust 1, Maximum Allowable Charges Authorization,
Survey Receipt and Acknowledgment With Hold Harmless, Waiver of Inspection, Deed
Restrictions Notice, and Purchaser’s Affidavit, all referencing only Lot 9 and failing to reference
Lot 8. Appellants are presumed to have consented to the terms of agreements they signed and
are charged with knowledge of the legal effects of the documents. See First City Mortg. Co. v.
Gillis, 694 S.W.2d 144, 147 (Tex. App.—Houston [14th Dist.] 1985, writ ref’d n.r.e.) (if no
fraud is involved, one who signs an agreement without knowledge of its contents is presumed to
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have consented to its terms and is charged with knowledge of the agreement’s legal effect).
Accordingly, the undisputed summary-judgment evidence established as a matter of law that
appellants knew or should have known about their injury on August 24, 2001, the date of the real
estate closing. See id.
Appellants seek to avoid this adverse result by arguing in their first issue that appellee’s
obtaining corrected Warranty Deed 2 in July 2010, filing the deed in December 2010, and paying
Long’s attorney’s fees in February 2011, extended the applicable statutes of limitations.
However, appellants’ March 18, 2011 cross-claim against appellee does not allege that by
obtaining the corrected Warranty Deed 2 and filing the deed in the Dallas County real property
records, or by paying Long’s attorney’s fees, appellee was negligent, breached a contract with
appellants, or breached a fiduciary duty to appellants. 3 Because appellants have not pleaded a
cause of action based on appellee’s obtaining and filing corrected Warranty Deed 2 or paying
Long’s attorney’s fees, these actions by appellee cannot be a basis for extending the limitations
periods otherwise applicable to the cross-claim of appellants. See Amaye v. Oravetz, 57 S.W.3d
581, 585 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (elementary that a defendant is not
required to rebut a theory not raised by plaintiff).
We conclude that appellants’ breach of contract, negligence, and breach of fiduciary duty
causes of action accrued on August 24, 2001, the date of the real estate closing, and were time-
barred by the applicable statutes of limitations when appellants filed their cross-claim against
appellee. Appellee’s limitations defense, therefore, was meritorious and appellants have failed in
their burden to show that each of the grounds asserted in appellee’s summary-judgment motion is
3
In addition, appellants have made no argument and have cited no authority in their appellate brief to support a contention that by obtaining
the corrected Warranty Deed 2 and filing the deed in the Dallas County real property records, or by paying Long’s attorney’s fees, appellee was
negligent, breached a contract with appellants, or breached a fiduciary duty to appellants. Further, appellants have made no argument and have
cited no authority in their appellate brief to support a contention that they suffered a legal injury for which a claim of negligence, breach of
contract, or breach of fiduciary duty accrued when appellee obtained and filed the corrected Warranty Deed 2 or paid Long’s attorney’s fees.
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insufficient to support the trial court’s judgment. See Hyman, 107 S.W.3d at 832. Accordingly,
we resolve appellants’ first and second issues against them. Because we have concluded the
summary judgment may be supported on the basis of the applicable statutes of limitations, we
need not address the other affirmative defenses raised by appellee. See TEX. R. APP. P. 47.1.
Final Judgment
In their third issue, appellants contend the trial court erred “in its final judgment
describing appellants as the defendant (in rem) when [Long] was the defendant in rem obligated
to pay taxes on the property thru 2009 when [appellants] did not own the property.” The trial
court’s judgment decreed the total amount of delinquent taxes owing to the taxing authorities on
Lot 8 and related accrued penalties, interest, attorney’s fees and costs, and imposed a lien on Lot
8 in that amount. See TEX. TAX CODE ANN. § 32.07(a) (West 2008) (except as provided by
subsections inapplicable in the case at bar, “property taxes are the personal obligation of the
person who owns or acquires the property on January 1 of the year for which the tax is imposed .
. . .”).
Appellants’ argument consists merely of a brief restatement of their third issue.
Appellants argue that “The trial court erred . . . in granting judgment against [appellants] in rem
when Plaintiff Dallas County et al dismissed defendant [Long] based upon the filed deed of
December 30, 2011,” and, “The trial court finally erred as did the taxing authority in dismissing
Long and in the final judgment holding [appellants] as the owner[s] in rem with obligation for
taxes on [Lot 8] from 2001 through the date of judgment.”
The law is well established that to present an issue for appeal, appellants’ brief must
contain, among other things, clear and concise argument for appellants’ contentions with
appropriate citations to authorities and the record. See TEX. R. APP. P. 38.1(i). Appellate courts
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must construe the Texas Rules of Appellate Procedure reasonably, yet liberally, so that the right
to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a
rule. Republic Underwriters Ins. Co. v. Mex–Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004); see
TEX. R. APP. P. 38.9. However, an issue on appeal that is not supported by argument or citation
to legal authority presents nothing for the court to review. See Fredonia State Bank v. Gen. Am.
Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994); Birnbaum v. Law Offices of G. David Westfall,
120 S.W.3d 470, 477 (Tex. App.—Dallas 2003, pet. denied). When a party fails to brief a
complaint adequately, he waives the issue on appeal. Devine v. Dallas Cnty., 130 S.W.3d 512,
513–14 (Tex. App.—Dallas 2004, no pet.).
Appellants’ argument, consisting of three sentences, essentially restates their third issue.
Appellants fail to provide sufficient argument or authority to make their appellate complaint in
their third issue viable. 4 Therefore, appellants have waived any argument that the trial court
erred by rendering a final judgment “describing appellants as the defendant (in rem) when
[Long] was the defendant in rem obligated to pay taxes on the property thru 2009 when
[appellants] did not own the property.” See TEX. R. APP. P. 38.1(i); Lundy v. Masson, 260
S.W.3d 482, 503 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (concluding appellant
failed to provide argument or cite authority for contention on appeal and appellate court was “not
required to do the job of the advocate”). We resolve appellants’ third issue against them.
4
We further note that in their notice of appeal, appellants complain only of the trial court’s September 22, 2011 summary judgment in favor
of appellee, not the trial court’s November 17, 2011 final judgment. Moreover, the trial court’s final judgment that is the subject of appellants’
third issue was a judgment in favor of the taxing authorities, which are not parties to this appeal.
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Conclusion
Having resolved appellants’ three issues against them, we affirm the trial court’s
judgment.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
111720F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
FREDERICK AND SANDRA DUNMORE, On Appeal from the 44th Judicial District
Appellants Court, Dallas County, Texas
Trial Court Cause No. TX-09-31763.
No. 05-11-01720-CV V. Opinion delivered by Justice Fillmore,
Justices Bridges and Myers participating.
CHICAGO TITLE INSURANCE
COMPANY, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Chicago Title Insurance Company recover its costs of this
appeal from appellants Frederick Dunmore and Sandra Dunmore.
Judgment entered this 19th day of April, 2013.
/Robert M. Fillmore/
ROBERT M. FILLMORE
JUSTICE
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