FILED
15-0567
10/30/2015 5:49:26 PM
tex-7628358
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
NO. 15-0567
IN THE SUPREME COURT OF TEXAS
AUSTIN, TEXAS
MARY MOCZYGEMBA,
Petitioner
v.
THOMAS J. MOCZYGEMA and HARRY LEE MOCZYGEMBA,
Respondents
RESPONSE TO PETITION FOR REVIEW
JOYCE W. MOORE
State Bar No. 14357400
jwmoore@langleybanack.com
ROBINSON C. RAMSEY
State Bar No. 16523700
rramsey@langleybanack.com
PAULA C. BOSTON
State Bar No. 24089661
pboston@langleybanack.com
LANGLEY & BANACK, INC.
Trinity Plaza II, Ninth Floor
745 East Mulberry
San Antonio, Texas 78212
Telephone: 210. 736.6600
Telecopier: 210. 735.6889
ATTORNEYS FOR RESPONDENTS
THOMAS J. MOCZYGEMBA and
HARRY LEE MOCZYGEMBA
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................... 1
INDEX OF AUTHORITIES .........................................................................3
ISSUE PRESENTED ...................................................................................3
The court of appeals correctly affirmed the trial court’s
summary judgment against Mary based on limitations.
UNBRIEFED ISSUES.................................................................................. 5
STATEMENT OF FACTS ............................................................................ 8
SUMMARY OF THE ARGUMENT............................................................ 10
ARGUMENT.............................................................................................. 12
The court of appeals correctly affirmed the trial court’s summary
judgment against Mary based on limitations. ........................................ 12
A. The court of appeals correctly applied S.V.’s holding that, even in a
breach-of-fiduciary-duty case, the injury must be objectively
verifiable to avoid limitations. ........................................................ 12
B. The doctrine of “fraud/fraudulent concealment” was waived and
cannot save Mary’s case from limitations. ...................................... 15
C. There was no failure, nor any admission of failure, to disclose
material facts. ................................................................................. 19
D. A rebuttable “presumption of unfairness” does not apply to overcome
the bar of limitations....................................................................... 21
E. The deeds are not “objectively verifiable evidence” of injury. ....... 24
F. Mary’s denial below of an injury arising from “inadequate sales
price” precludes her from relying on it now. ................................. 24
1
PRAYER .................................................................................................... 25
CERTIFICATE OF COMPLIANCE ........................................................... 26
CERTIFICATE OF SERVICE.................................................................... 26
2
INDEX OF AUTHORITIES
Cases
Barnett v. Barnett,
67 S.W.3d 107 (Tex. 2001) ....................................................................... 18
Carrell v. Denton,
157 S.W. 2d 878 (Tex. 1942) .................................................................... 19
City of Houston v. Clear Creek Basin Auth.,
589 S.W.2d 671 (Tex. 1979) ..................................................................... 22
Computer Associates Int’l v. Altai,
918 S.W.2d 453 (Tex. 1996) ................................................................ 13, 18
Doty v. Barnard,
47 S.W. 712 (Tex. 1898) ........................................................................... 22
Earle v. Ratliff,
998 S.W.2d 882 (Tex. 1942) ............................................................... 11, 18
Huie v. De Shazo,
922 S.W.2d 920 (Tex. 1996) .................................................................... 20
International Banker’s Life Ins. Co. v. Holloway,
368 S.W.2d 567 (Tex. 1963).....................................................................15
Joe v. Two Thirty Nine Joint Venture,
145 S.W.3d 150 (Tex. 2004) .................................................................... 19
Johnson v. Peckham,
120 S.W.2d 786 (Tex. 1938) .................................................................... 20
KPMG Peat Marwick v. Harrison County Housing Finance Corp.,
988 S.W.2d 746 (Tex. 1999) ............................................................... 15, 17
Moczygemba v. Moczygemba,
466 S.W.3d 212 (Tex. App.—San Antonio 2015, pet. filed) ........... 10, 15, 17
Montgomery v. Kennedy,
669 S.W.2d 309 (Tex. 1984) .................................................................... 20
Rosenbaum v. Texas Building & Mortgage Co.,
167 S.W.2d 506 (Tex. 1943) ..................................................................... 22
Slay v. Burnett Trust
Co., 187 S.W.2d 377 (Tex. 1945) ................................................................15
SmithKline Beecham Corp. v. Doe,
903 S.W.2d 347 (Tex. 1995) .................................................................... 21
3
S.V. v. R.V.,
933 S.W. 2d 1 (Tex. 1996) ................................................................. passim
Valdez v. Hollenbeck,
465 S.W.3d 217 (Tex. 2015) ..................................................................... 16
Via Net v. TIG Ins. Co.,
211 S.W.3d 310 (Tex. 2006) ................................................................ 13, 21
Wagner & Brown Ltd., v. Horwood,
58 S.W.3d 732 (Tex. 2001) ....................................................................... 17
4
ISSUE PRESENTED
The court of appeals correctly affirmed the trial court’s
summary judgment against Mary based on limitations.
A. The court of appeals correctly applied S.V.’s holding that,
even in a breach-of-fiduciary-duty case, the injury must
be objectively verifiable to avoid limitations.
B. The doctrine of “fraud/fraudulent concealment” was
waived and cannot save Mary’s case from limitations.
C. There was no failure, nor any admission of failure, to
disclose material facts.
D. A rebuttable “presumption of unfairness” does not apply
to overcome the bar of limitations.
E. The deeds are not objectively verifiable evidence of an
injury.
F. Mary’s denial below of an injury arising from an
“inadequate sales price” precludes her from relying on it
now.
UNBRIEFED ISSUES
I. The lack of mineral reservations in the deeds was not
inherently undiscoverable, because the omissions were
apparent from the face of the recorded deeds, and even if
a fiduciary relationship existed between Mary and her
sons, she was aware of the need to inquire into the terms
of the transactions and was able to do so before she signed
the deeds.
II. More than four years before she filed suit in 2012, Mary
knew, or in the exercise of reasonable diligence should
have known, that the deeds she signed in 2000 omitted
mineral reservations in her favor.
5
This is a case of seller’s remorse fueled by the unexpected oil bonanza
in Karnes and Wilson Counties following the advent of “fracking” and the
discovery of the Eagle Ford shale. It is not, as Petitioner Mary Moczygemba
claims, a “typical” breach-of-fiduciary-duty case—nor is it about the
exploitation of “seniors.”1 Rather, this case centers on the legal and
evidentiary requirements for the application of the discovery rule,
established by this Court in S.V. v. R.V. as the threshold for avoiding
limitations, even in cases alleging breach of fiduciary duty. 933 S.W. 2d 1,
23 (Tex. 1996). Mary’s petition seeks to change that threshold and jettison
society’s interests in preventing stale and fraudulent claims by allowing
“presumptions” to suffice for the application of the discovery rule in
breach-of-fiduciary-duty cases, even when there is no objectively verifiable
evidence of actual injury or fraudulent intent by the fiduciary.
Although Mary does not acknowledge it, she essentially asks this
Court to ignore several of its previous opinions to allow her to rely on
“defenses” to limitations, which she did not raise below. Meanwhile she
disregards pleadings that she filed and which contravene her positions on
1If anyone exploited Mary’s “senior status,” it was her other children, who
threatened to abandon her if she did not sue to recover the minerals for them to share.
2CR:211-221, 624-27/1414–24, 1827–29.
6
appeal. Those pleadings include her express disavowal of any claim of
injury arising from the “inadequate sales price.” 2CR:269/1472. 2
Mary also avoids mentioning that she has retained the cash proceeds
from the sale, and has continued to graze her cattle and use the weekend
house on one of the tracts for fifteen years. 1CR:460, 608, 937/455, 603,
932; 2CR 646, 650/1849, 1853. Now she wants to subvert the deal by
taking back all the minerals she conveyed—minerals that were so
inconsequential to her at the time that, according to her story twelve years
later, she “didn’t think about it.” 2CR:308/1511. Instead of living with the
choices she made and the benefits she accepted, she seeks in hindsight to
undo the deeds she signed and to “do over” the case she pled below.
This case is not about a court changing Texas jurisprudence; it is
about a seller changing her mind. Mary’s petition for review presents no
issues that this Court has not already decided adverse to her position.
2 “CR:__/___” – electronic pagination/clerk’s pagination.
7
STATEMENT OF FACTS
The court of appeals opinion correctly states the nature of the case
and provides a more accurate statement of facts than Mary’s petition for
review, which contains several incorrect and inadvertently misleading
statements, omissions, and arguments.
For example, Mary claims that her sons Harry and Tommy
“persuaded [her] to sell them the surface interest in the 412 acres …” Pet. at
2. Actually, they did not persuade her to do anything: she sold the land at a
price and on terms that she herself set, with no mention of mineral
reservations. 1CR: 505-06, 692/500-01, 687. “At no point,” says Mary, “did
they tell [her] that they were acquiring the minerals from her.” Pet. at 2.
More accurately, at no point did Mary tell them or the attorney who drafted
the deeds that she wanted to reserve the minerals. 1CR:324-26/319-20.
“[T]here’s no notes anywhere where it even discusses oil and gas,”
said the attorney who prepared the deeds. “And I know that if she would
have asked me about it, I would have answered it.” 1CR:326/321. The
nonexistence of any written notes concerning the minerals as well as the
absence of any mineral reservation in the deeds reflected that the
conveyances were “what Ms. Moczygemba wanted and how she wanted it.”
1CR 326/321.
8
Mary complains that her sons did not tell her “she should consult
with any attorney.” Pet. at 2. But they drove her to the office of the attorney
who had represented her in previous matters, and no one prevented her
from reading the deeds or asking questions of the attorney who drafted
them. 1CR:266, 659-61, 709, 717/ 261, 654-56, 709, 712.
Mary insinuates that the transactions were “unfair” to her because
Harry and Tommy acquired the land for less than its market value. Pet. at
11-12. But she herself set the price. 1CR:505-06, 692/500-01, 687.
Furthermore, cash formed only a part of the consideration: Mary also
received free grazing for her cattle, free assistance with her cattle
operations, and use of the weekend farm house on Harry’s land for her
lifetime. 1CR:460, 608, 937/455, 603, 932; 2CR 646, 650/1849, 1853.
Regardless, Mary abandoned her “unfairness” claim when, in her
final trial pleading, she ratified the transactions in all respects—except for
the conveyance of the minerals. 2CR:250/1453. She also stipulated in her
response to the motion for summary judgment that the “inadequate sales
price is not the injury complained of” and that “the only injury complained
of is the conveyance of the minerals.” 2CR:269/1472.
Under these circumstances, Harry and Tommy filed a motion for
summary judgment on limitations in which they urged three grounds: (1)
the nature of the alleged injury was not inherently undiscoverable; (2) Mary
9
offered no objectively verifiable evidence of injury; and (3) she knew or
reasonably should have known of her injury as a matter of law. 2CR:51-
52/1254-55. The trial court granted the summary judgment without
specifying the grounds. 2CR:802-04/2005-07. The court of appeals
affirmed based on the lack of objectively verifiable evidence, without
reaching the remaining grounds. Moczygemba v. Moczygemba, 466
S.W.3d 212, 219 n. 2 (Tex. App.—San Antonio 2015, pet. filed).
SUMMARY OF THE ARGUMENT
“Petitioners often overstate the effect of lower court opinions,” Mary
admits. Pet. at 4. Here, she has not only overstated the effect of the lower
court’s opinion, she has misstated the effect of the precedent that it
followed.
The court of appeals correctly applied this Court’s holding in S.V.
that, for the discovery rule to apply, even in a case where the parties have a
fiduciary relationship, there must be objectively verifiable evidence that the
plaintiff was in fact injured and that the injury was caused by the wrongful
conduct of another. S.V., 933 S.W.2d at 6, 23.
Although Mary now claims “fraud/fraudulent concealment,” she
waived this alternative defense to limitations by not raising it in the trial
court. Regardless, her attempt to substitute a fiduciary’s alleged failure to
disclose (constructive fraud) for fraudulent intent or intent to conceal the
10
wrongdoing (actual fraud) ignores the equitable underpinnings of delaying
limitations based on fraudulent concealment and presents a proposal that
this Court has already rejected. See Earle v. Ratliff, 998 S.W.2d 882 (Tex.
1942).
Mary’s attempts to rely on a “presumption of unfairness” or alleged
“admissions” of failure to disclose material facts as a substitute for
objectively verifiable evidence of injury ignores the summary-judgment
evidence, or lack of it, in this case, as well as admissions and positions that
appear in her pleadings—including her express “confirmation” of the deeds
and her disavowal of any claim of injury based on “the inadequate sales
price.” 2CR:250, 269/1453, 1472. Mary also does not address her problem
that, because she relies on the discovery rule, “the evidence must rise to a
higher level of certainty.” S.V., 933 S.W.2d at 19. Had she filed her suit
timely, rather than twelve years after she signed the deeds, she would not
be facing the much tougher evidentiary standard that now confronts her in
the discovery-rule context.
Mary focuses her arguments solely on the “wrongful conduct”
component of a “legal injury,” while failing to offer anything other than her
own speculative testimony to show that she was in fact injured when she
signed the deeds in 2000. Those deeds, each of which plainly omitted a
11
mineral reservation in her favor, do not show that Mary did not intend to
convey the minerals; they show only that the conveyances occurred.
Mary’s remorse today over having conveyed the minerals does not
equate to an “injury in fact” in 2000. See S.V., 933 S.W.2d at 15 (“While R.
fit a behavioral profile for someone who has been sexually abused, the
experts acknowledged that that does not mean she had actually been
abused.”) Without objectively verifiable evidence of an “injury in fact” as
well as “wrongful conduct of another,” the discovery rule does not apply
here. See id.
ARGUMENT
The court of appeals correctly affirmed the trial court’s summary
judgment against Mary based on limitations.
A. The court of appeals correctly applied S.V.’s holding
that, even in a breach-of-fiduciary-duty case, the injury
must be objectively verifiable to avoid limitations.
In an effort to escape the statute of limitations and avoid honoring the
deeds she signed fifteen years ago, Mary claims that the court of appeals
“misapplied” this Court’s holding in S.V. v. R. V, 933 S.W.2d 1 (Tex.
1996). It did not. The court of appeals correctly determined that S.V.
controls and appropriately applied it. Granting Mary’s request for relief
would require this Court to overrule its opinion in S.V. that the two-part
discovery rule test applies even if the parties are in a fiduciary relationship.
12
S.V. clarified that the nature of the injury, not the label attached to
the cause of action, determines whether the discovery rule will apply. See
933 S.W.2d at 7; see also Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314 (Tex.
2006) (“Our attempts to bring predictability and consistency to discovery
rule jurisprudence have focused on types of injury, not causes of action.”).
In S.V. this Court further explored the two-part test for applying the
discovery rule, first announced in Computer Associates Int’l v. Altai, 918
S.W.2d 453 (Tex. 1996), and ultimately held that, even in breach of
fiduciary duty cases, a plaintiff must furnish objectively verifiable evidence
that she was in fact injured by the wrongful conduct of another before the
discovery rule can apply. S.V., 933 S.W.2d at 23.
Mary offered nothing but her own speculative testimony to support
her allegation that, had she thought about it at the time she signed the
deeds, she would have wanted to reserve the minerals. 2CR:509/1212.
Therefore, the court of appeals correctly held that the discovery rule did not
apply because this testimony was subjective, not objective. See S.V. 933 S.
W. 2d at 15 (“[T]he bar of limitations cannot be lowered for no other reason
than a swearing match between parties over facts.”).
The analysis applicable here is indistinguishable from the discovery-
rule analysis in S.V., where a daughter sued her father for behavioral and
emotional injuries allegedly caused by childhood sexual abuse. 933 S.W.2d
13
at 3, 12. Because the daughter filed suit after limitations expired, she relied
on the discovery rule, claiming that repressed memories caused by the
trauma of her father’s abuse prevented her from bringing the suit within
the limitations period. Id. at 3, 9-12.
Although the cause of action pled in S.V. was for negligence,
the fiduciary relationship that existed as a matter of law between the father
and daughter during her minority furnished the framework for this Court’s
discovery-rule analysis. 933 S.W.2d at 8, 13, 23. This was most clearly
illustrated by the fact that the “special relationship between parent and
child” was one of the factors in this Court’s “assum[ing] without
deciding” that the daughter’s injury was inherently undiscoverable. Id. at
8.
When viewed in the fiduciary context, the daughter’s allegations of
sexual abuse in S.V., if true, presented a particularly egregious case of
fiduciary self-dealing. The father’s denial that the abuse occurred also
confirmed that no disclosure of material facts was made at the time of the
alleged abuse or in the intervening years. And yet, after recognizing that
the “egregiousness” of the alleged conduct is not a factor governing the
application of the discovery rule “because it cannot provide a workable
standard,” this Court held that the daughter had no objectively verifiable
14
evidence to show that the abuse had in fact occurred or that her present
symptoms were caused by the abuse. 933 S.W.2d at 15, 23-24.
At least two of the cases cited in S.V. also involved allegations of
fiduciary self-dealing and non-disclosure; however, in each of those cases a
“paper trail” furnished objectively verifiable evidence to show the injury
and the wrongful conduct. S.V., 933 S.W.2d at 7 (citing International
Banker’s Life Ins. Co. v. Holloway, 368 S.W.2d 567, 580 (Tex. 1963)
(“[S]tock transfer records and board meeting minutes proved officers’ and
directors’ misdealing”) and Slay v. Burnett Trust Co., 187 S.W.2d 377, 385-
87 (Tex. 1945) (“[P]aper trail detailed self-dealing”)). Here, no “paper trail”
nor any other objectively verifiable evidence supports Mary’s claims.
B. The doctrine of “fraud/fraudulent concealment” was
waived and cannot save Mary’s case from limitations.
1. Mary did not raise “fraud/fraudulent” in the trial
court.
To avoid the “objectively verifiable evidence of injury” requirement,
Mary tries to recast her case on appeal as one for “fraud/fraudulent
concealment.” Pet. at 6-8. It is not. As the court of appeals correctly
noted, the only “defense” Mary pled or raised in her summary-judgment
response was the “discovery rule,” based on S.V.’s two-part test.
Moczygemba, 466 S.W.3d at 216. Her failure to raise “fraud/fraudulent
concealment” below waived that point on appeal. KPMG Peat Marwick v.
15
Harrison County Housing Finance Corp., 988 S.W.2d 746, 749-50 (Tex.
1999) (“[A] party asserting fraudulent concealment as an affirmative
defense to the statute of limitations has the burden to raise it in response to
the summary judgment motion and to come forward with summary
judgment evidence raising a fact issue on each element of the fraudulent
concealment defense.”); S.V., 933 S.W.2d at 24 (declining to decide
whether the objectively-verifiable element would apply to cases of fraud or
fraudulent concealment because the plaintiff had not plead fraud or
fraudulent concealment).
2. There is only one “discovery rule.”
In an attempt to avoid her waiver of “fraud/fraudulent-concealment,”
Mary asserts that “there are, in effect, two discovery rules,” of which she
claims “fraud/fraudulent concealment” is one. Pet. at 6. But as this Court
has clarified, only one exception to limitations can be “properly referred to
as the discovery rule,” and it applies only if “the alleged wrongful act and
resulting injury were inherently undiscoverable at the time they occurred
but may be objectively verified.” S.V., 933 S.W.2d at 4, 6.
Although accrual of a cause of action for limitations purposes may
also be deferred in cases of fraud or fraudulent concealment, this defense is
distinct from the discovery rule and is governed by different substantive
and procedural rules. S.V., 933 S.W.2d at 4; see also Valdez v. Hollenbeck,
16
465 S.W.3d 217, 229 (Tex. 2015) (“We have recognized two doctrines that
may delay accrual or toll limitations: (1) the discovery rule and (2)
fraudulent concealment.”); Wagner & Brown Ltd., v. Horwood, 58 S.W.3d
732, 736 (Tex. 2001) (holding that an alleged misrepresentation may be
relevant to a fraudulent-concealment claim, but it is irrelevant to a
discovery-rule analysis because “[t]he discovery rule exception and tolling
based on fraudulent concealment are distinct concepts that exist for
different reasons”). Pleading the discovery rule, as Mary did, does not
equate to pleading “fraud/fraudulent concealment,” as Mary did not.
In reiterating this Court’s holdings that there are “two exceptions” to
the application of limitations—“the discovery rule and the doctrine of
fraudulent concealment”—the court of appeals noted that Mary pled only
one of them: “the discovery rule.” Moczygemba, 466 S.W.3d at 215.
Therefore, only the discovery rule, not fraud or fraudulent concealment, is
at issue here, and it is too late for Mary to assert additional defenses that
she did not raise below. Cf. KPMG, 988 S. W. 2d at 749-50.
3. A fiduciary’s alleged failure to disclose, without more,
is insufficient to avoid limitations based on
“fraud/fraudulent concealment.”
Even assuming hypothetically that Mary had properly raised
“fraud/fraudulent concealment” below, her argument that fiduciary non-
17
disclosure or “constructive fraud” is sufficient to toll limitations is legally
unsound.
Unlike a discovery-rule defense, deferring accrual of a cause of action
in cases of fraud or fraudulent concealment resembles equitable estoppel.
Computer Associates, 918 S.W.2d at 456. In such cases, “accrual is deferred
because a person cannot be permitted to avoid limitations by deceitfully
concealing wrongdoing until limitations has run.” S.V., 933 S.W.2d at 6.
Mary’s assertion that constructive fraud, for which no intent to deceive is
required, should be sufficient to toll limitations ignores the crucial role that
intent plays in providing a policy justification for deferring accrual of a
cause of action based on fraud or fraudulent concealment. See Barnett v.
Barnett, 67 S.W.3d 107, 126 (Tex. 2001) (“Constructive fraud … is not the
equivalent of common-law fraud. In order to establish constructive fraud, it
is not necessary to establish fraudulent intent or other elements of
common-law fraud.”).
Mary also ignores the fact that not every fiduciary failure to disclose is
intentional or meant to conceal facts for the purpose of allowing limitations
to expire. Absent an actual awareness of wrongfulness or injury coupled
with an intent to conceal the wrongdoing from the plaintiff, a fiduciary’s
failure to disclose facts is insufficient to prove fraud or fraudulent
concealment to avoid limitations. Earle, 998 S.W.2d at 888 (refusing to
18
equate fiduciary non-disclosure with fraudulent concealment absent
additional evidence of fraudulent intent and that “the defendant actually
knew the plaintiff was in fact wronged, and concealed that fact to deceive
the plaintiff”); see also Carrell v. Denton, 157 S.W. 2d 878, 879 (Tex. 1942)
(describing as “unsound” the assertion that merely because the relationship
between a physician and patient involves trust and confidence, fraudulent
concealment can be imputed to a non-disclosing doctor).
C. There was no failure, nor any admission of failure, to
disclose material facts.
The record does not support Mary’s claim that her sons “admitted” a
breach of fiduciary duty of disclosure—or that any such breach occurred.
Pet. at 6. Nor does any such alleged “admission” constitute objectively
verifiable evidence that Mary was in fact injured by conveying the mineral
interests. Pet. at 12.
A fiduciary’s duty of full disclosure is measured by the nature and
scope of the relationship. Joe v. Two Thirty Nine Joint Venture, 145
S.W.3d 150, 159-60 (Tex. 2004) (holding that an attorney’s fiduciary duty
to a client extends only to dealings within the scope of the underlying
relationship of the parties and “his duty to inform does not extend to
matters beyond the scope of the representation”).
If, as Joe confirmed, an attorney’s fiduciary duties are limited by the
scope of his representation, then laymen are entitled to at least the same
19
protection. Here, to the extent that any informal fiduciary relationship
existed between Mary and her sons, it was limited to helping with her
farming and ranching operations. 1CR:605-09/610-14. It did not include
advising her on legal matters. For legal representation in the past, Mary
had gone to the same attorney whose office prepared the deeds she now
seeks to partially rescind. 1CR:445-48/450-53.
Even when a fiduciary duty exists, the duty of full disclosure requires
only that the fiduciary relate “all material facts known to [him] that might
affect [the beneficiaries’] rights.” Huie v. De Shazo, 922 S.W.2d 920, 923
(Tex. 1996) (emphasis added) (citing Montgomery v. Kennedy, 669 S.W.2d
309, 313 (Tex. 1984)); see also Johnson v. Peckham, 120 S.W.2d 786, 787-
88 (Tex. 1938). A fiduciary duty does not include the requirement to read
the beneficiary’s mind. Mary’s excuse for not mentioning the minerals until
years later (and after they had become valuable) was that she “didn’t think
about it.” 2CR:308/1511. Therefore, even if Harry and Tommy had been
able to read her mind, the mineral pages were blank.
Although Mary apparently thought the minerals had more value in
2012 when she filed suit than when she sold them, she offered no evidence
to show that the inclusion of the minerals in the sales added any benefit to
her sons or caused any injury to her at the time the deeds were signed in
2000.
20
Mary did not create a fact issue on the elements necessary to support
her allegation that the lack of a mineral reservation was a “material fact” to
her or anyone else at the time she signed the deeds, or that her sons “knew”
about her unexpressed (and allegedly forgotten) wish to retain them.
Therefore, any lack of discussion between Mary and her sons about
minerals was not, and could not be, an “admitted” breach of a fiduciary
duty of full disclosure. Nor could it serve as a substitute for objectively
verifiable evidence that Mary was in fact injured by the lack of mineral
reservations and that this injury was due to the wrongful conduct of
another.
D. A rebuttable “presumption of unfairness” does not
apply to overcome the bar of limitations.
1. Mary waived her “presumption of unfairness”
assertion by failing to raise it below.
Harry and Tommy were not required to negate theories that Mary did
not raise in the trial court; they were “only required to meet [her] case as
pleaded” and as presented in her response to their summary-judgment
motion. Via Net, 211 S.W.3d at 313 (quoting SmithKline Beecham Corp. v.
Doe, 903 S.W.2d 347, 355 (Tex. 1995)). Mary’s proposal to replace
objectively verifiable evidence of injury with a “presumption of unfairness”
does not appear in her response to the motion for summary judgment.
2CR:256-70/1459-73. Therefore, she waived this point on appeal by not
21
raising it below. See City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 674-75 (Tex. 1979).
2. Mary’s confirmation of the deeds further precludes
her reliance on any “presumption of unfairness.”
Mary is additionally precluded from relying on any “presumption of
unfairness” to show an alleged injury from the face of the deeds because, in
her final trial pleading, she expressly ratified those transactions.
2CR:250/1453.
Although Mary purported to confirm only the conveyances of the
surface, her partial ratification and her retention of the consideration she
received, in light of her knowledge of the facts she now claims constituted a
breach of fiduciary duty, resulted in a ratification of the entire transaction.
See Doty v. Barnard, 47 S.W. 712, 714 (Tex. 1898) (“A person cannot accept
and reject the same instrument, or, having availed himself of it as to part,
defeat its provisions in any other part and this applies to deeds, wills, and
all other instruments whatever.”); Rosenbaum v. Texas Building &
Mortgage Co., 167 S.W.2d 506, 508 (Tex. 1943) (“An express ratification is
not necessary; any act based upon a recognition of the agreement as
subsisting or conduct inconsistent with an intention to avoid it has the
effect of waiving the right to rescission.”).
22
3. The discovery rule’s stricter evidentiary standard
precludes substituting a “presumption of unfairness”
for an objectively verifiable injury.
Mary’s attempt to substitute a “presumption of unfairness” for
objectively verifiable evidence of legal injury confuses two different
standards of proof and ignores the point this Court made in S.V.: the
discovery rule’s standard concerning objectively verifiable evidence to avoid
limitations is a much tougher evidentiary proposition than that required to
create a fact question on liability at a trial on the merits. 933 S.W.2d at 19
(“Had [the plaintiff filed suit before limitations ran], the conflict in the
evidence would be for the jury to resolve. Because she did not, however, and
because she thus relies on the discovery rule, the evidence must rise to a
higher level of certainty.”).
If Mary had “asserted her claim within the period prescribed by the
Legislature, she would have been entitled to prosecute her claim despite
any weaknesses in her proof. Because she did not do so, greater verifiability
is necessary at the threshold for invocation of the discovery rule.” S.V., 933
S.W.2d at 25. Although her uncorroborated self-serving assertions may be
sufficient to create a presumption of unfairness to shift the burden of proof
at trial, they do not provide objectively verifiable proof of injury to
overcome limitations. See id.
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E. The deeds are not “objectively verifiable evidence” of
injury.
A “legal injury” consists of an injury in fact caused by the wrongful
conduct of another. S.V., 933 S.W.2d at 6. Both of these elements are
missing here. Mary’s uncorroborated testimony concerning her claimed
intent is insufficient in the discovery-rule context to preclude a summary
judgment because it is not objectively verifiable. See S.V., 933 S.W.2d at 15
(holding that the testimony of an interested witness is not objectively
verifiable). Because the conveyance of minerals is not inherently wrongful
or injurious, there must be some objective evidence—such as corroborative
documentation or disinterested-witness testimony—for the discovery rule
to apply. See Id.
The deeds themselves do not provide objective proof that Mary did
not mean to convey the minerals; they only prove that she did convey them.
The sole evidence that she offered to support her alleged “injury in fact” was
her own testimony—and even that was nothing more than conclusory
speculation that, had she thought about it in 2000, she would have wanted
to keep the minerals. 2CR:308/1511.
F. Mary’s denial below of an injury arising from
“inadequate sales price” precludes her from relying on
it now.
In her response to the summary-judgment motion, Mary expressly
disavowed any claim of injury based on an inadequate sales price.
24
2CR:269/1472. (“The inadequate sales price is not the injury complained
of.... The injury complained of is the conveyance of the minerals. .... Mary
knew what the sales price was at the time of the sale. She had no idea that
she was conveying her minerals along with the surface. This is the legal
injury.”) (emphasis added). Nevertheless, she now tries to rely on the
“below market price” as objectively verifiable evidence of breach of
fiduciary duty. Pet. at 15. But she admitted below that there was no injury
in fact from the “inadequate price.” 2CR:269/1472. Therefore, her claim is
procedurally precluded by waiver and substantively irrelevant to
limitations.
PRAYER
For these reasons, Respondents ask this Court to deny the petition for
review and grant them all other relief to which they are entitled.
Respectfully submitted,
/s/ Joyce W. Moore
JOYCE W. MOORE
State Bar No. 14357400
jwmoore@langleybanack.com
ROBINSON C. RAMSEY
State Bar No. 16523700
rramsey@langleybanack.com
PAULA C. BOSTON
State Bar No. 24089661
pboston@langleybanack.com
LANGLEY & BANACK, INC.
Trinity Plaza II, Ninth Floor
745 East Mulberry Avenue
25
San Antonio, Texas 78212
Telephone: 210. 736.6600
Telecopier: 210. 735.6889
ATTORNEYS FOR RESPONDENTS
THOMAS J. MOCZYGEMBA and
HARRY LEE MOCZYGEMBA
CERTIFICATE OF COMPLIANCE
I certify that the number of words in this Response to Petition for
Review, including its headings, footnotes, and quotations, is 4331.
/s/ Robinson C. Ramsey
ROBINSON C. RAMSEY
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document has
been sent to the following on October 30, 2015:
James J. Harnett, Jr.
Email: jim@hartnettlawfirm.com
Will Ford Hartnett
Email: will@hartnettlawfirm.com
THE HARTNETT LAW FIRM
2920 N. Pearl Street
Dallas, Texas 75201
Telephone: 214.742.4655
Telecopier: 214.742.4656
/s/ Robinson C. Ramsey__
ROBINSON C. RAMSEY
26