Wright v. Greenberg

MAJORITY OPINION

MAURICE E. AMIDEI, Justice.

Karon Rosenfield Wright (Karon), individually and as trustee of two testamentary trusts, appeals from two summary judgments for Joyce Z. Greenberg (Joyce), independent executrix of her deceased husband’s (Jacob’s) estate and trustee of a trust established by him prior to his death. In three issues, Karon contends the trial court erred in granting summary judgments in favor of Joyce because (1) there is no evidence that Jacob exercised the power of appointment in his will, and Jacob was estopped to exercise the power of appointment, (2) Joyce was estopped to assert the statute of limitations or other affirmative defenses, and (3) Joyce failed to negate the discovery rule by proving Karon discovered or should have discovered Jacob’s alleged breach of trust. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Lurine Karon Greenberg (Lurine) was Jacob’s first wife, and she died in 1975. Karon is Jacob’s and Lurine’s daughter, and is the same person known as Abby Greenberg Rosenfield. In her will, Lurine left all of her residuary estate to Jacob in trust, and directed him to divide the trust estate equally between the “Jacob Green-berg Trust” and the “Abby Greenberg Ro-senfield Trust.” By the terms of her will, Lurine named Jacob the trustee and beneficiary of the Jacob Greenberg Trust (Jacob’s Trust), and named Jacob the trustee of the Abby Greenberg Rosenfield Trust (Karon’s Trust). Jacob was given the discretionary power to distribute the trust income and corpus of Karon’s Trust to Karon in such amounts as he believed “for the best interests” of Karon. Upon the death of Jacob, Lurine’s will appointed Karon as successor trustee of Karon’s Trust. Lurine’s will gave Jacob “the power to appoint the entire remaining principal of Jacob’s Trust, free of the trust, by will, irrespective of the time of his death, in favor of his estate.” Should Jacob fail to exercise that power, Lurine’s will provided that the remaining principal of Jacob’s Trust passed to Karon’s Trust with Karon as successor trustee.

Jacob died in 1995 and his will named his second wife, Joyce, the independent executrix of his will. That will provided:

By this Will, I intend to dispose of all my property (that owned by me and that over which I have any power of disposition), real, personal and mixed, of whatever kind and wherever situated, including any property over which I may have a power of appointment (emphasis added).

In the residuary clause of Jacob’s will, he left all of the “rest, residue and remainder” of his estate to the trustee or successor trustee of the Jacob Greenberg Family Trust created in 1988. After Jacob died, and his will was admitted to probate, Ka-ron sued Joyce for an accounting of both trusts, damages for Jacob’s alleged mishandling the trusts, a declaratory judgment that Jacob’s will was not a valid exercise of the power of appointment in Lurine’s will, and an order that the corpus of Jacob’s Trust be turned over to Karon as successor trustee to the two testamentary trusts established by Lurine’s will.

Joyce filed a motion for partial summary judgment, alleging that Jacob’s will effectively exercised the power of appointment given to him under Lurine’s will as a matter of law. Karon responded alleging that Jacob’s will did not specifically refer to the power of appointment in Lurine’s will, nor did Jacob’s will refer to the property subject to the power of appointment. Furthermore, Karon contended Jacob’s will did not dispose of the property over which he had a power of appointment, but only stated his “intention” to dispose of proper*670ty over which he had a power. Thereafter, Karon filed her second amended original petition alleging additionally that Jacob was estopped to exercise the power of appointment, and Joyce was estopped to assert the statute of limitations and all other affirmative defenses to Karon’s actions for accounting, breach of trust, and claims for damages. By her second amended original answer, following Ka-ron’s amended petition, Joyce contended Karon’s claims for an accounting are barred by the four-year statute of limitations, and Karon knew or should have known of Jacob’s alleged mishandling of the trust within the four-years from the alleged breach of trust. Joyce filed a second motion for summary judgment further contending she was not estopped from asserting any and all defenses, and that Ka-ron’s actions regarding the funding, distribution or administration of Karon’s Trust were time barred. The trial court granted Joyce’s first motion for partial summary judgment on the ground that she established as a matter of law that Jacob’s will exercised his testamentary power of appointment over the assets of Jacob’s Trust under Lurine’s will. The trial court also granted Joyce’s second motion for partial summary judgment without stating any grounds. Both summary judgments were made final and severed from the remaining part of the case for purposes of this appeal.

II. SUMMARY JUDGMENTS.

A. Standard of Review.

In order to prevail on summary judgment, the defendant as movant must disprove at least one of the essential elements of each of the plaintiffs causes of action. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). This burden requires the movant to show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). In determining whether a material fact issue exists to preclude summary judgment, evidence favoring the nonmovant is taken as true, and all reasonable inferences are indulged in favor of the nonmovant. Id.; see also Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Any doubt is resolved in favor of the nonmov-ant. Nixon, 690 S.W.2d at 548-49; see also Doe, 907 S.W.2d at 477.

A summary judgment may be affirmed on any of the movant’s theories which has merit. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 627 (Tex.1996). Appellate courts should consider all grounds for summary judgment (1) on which the trial court rules, (2) the movant preserves for appellate review, and (3) are necessary for final disposition of the appeal when reviewing a summary judgment. Id. at 627. The appellate court may consider other grounds that the movant preserved for review and the trial court did not rule on in the interest of judicial economy. Id.

B. The Exercise of the Power of Appointment.

In issue one, Karon contends Jacob’s will was not an effective exercise of the power of appointment given to him by Lurine’s will because: (1) Jacob’s will makes no disposition of the property over which he had the power, but only states his “intention” to dispose of all of his property; (2) Jacob’s will does not refer to the power of appointment granted in Lurine’s will; and (3) Jacob’s will makes no reference to the property that is the subject of the power of appointment. Karon contends that because there was no exercise of the power of appointment, the appointive estate in Lurine’s will did not pass as directed in the residuary clause of Jacob’s will.

1. Applicable Law. A power of appointment is a power of disposition given to a person over property not his own, by someone who directs the mode in which that power shall be exercised by a particu*671lar instrument. Republic National Bank of Dallas v. Fredericks, 155 Tex. 79, 283 S.W.2d 39, 46 (1955). It is an authority to do an act which the owner granting the power might himself lawfully perform. Id. To constitute a valid exercise of a power of appointment, the supreme court stated:

The general rule is that in order for a will or deed to constitute the exercise of a power of appointment the intent to exercise such power must be so clear that no other reasonable intent can be imputed under the will. The will must refer to the power of appointment or to the property subject to such power, or the donee of the power must have owned no other property to which the will could have attached and thus the will have been a vain and useless thing except it be held to be an exercise of the power [citations omitted].
If, from the circumstances or the instrument executed, it be doubtful as to whether it was the intention to execute the power possessed by the grantor, then it will not be held that by such act or conveyance that power was in fact executed [citations omitted].

Republic National Bank, 283 S.W.2d at 47.

In Republic, A.C. Ebie’s will left a part of a trust estate “to the legatees and devi-sees of my said son, in accordance with his last will and testament, if he shall leave a will,.... ” Id. at 46. The will of Ebie’s son, Russell, contained no reference to the power of appointment given under his father’s will, but left his wife all of his property in fee simple. The supreme court found no reference in the will to the power of appointment; no language stating the will is exercising such power of appointment; no reference to A.C. Ebie’s estate; and Russell did have property of his own at the making of his will, separate and apart from his interest in his father’s estate given by the power of appointment. Id. at 47. Therefore, the supreme court found Russell’s will did not exercise the power of appointment given him under his father’s will. Id. at 48.

2. The Summary Judgment Evidence.

In her first motion for summary judgment, Joyce argued that the interpretation to be given to Jacob’s will demonstrated that Jacob exercised the power of appointment given by Lurine’s will as a matter of law. Joyce attached as summary judgment proof: (1) Jacob’s will, (2) the Jacob Greenberg Family Trust instrument, and (3) Lurine’s will.

In her response, Karon attached as summary judgment proof her affidavit stating that Jacob had substantial assets and “income to support and maintain himself such that he would not have been authorized to distribute all of the principal of [Jacob’s Trust] to himself.”

3. Application of the Law to the Facts. Construction of a trust instrument is a question of law for the trial court when no ambiguity exists. Hancock v. Krause, 757 S.W.2d 117, 119 (Tex.App.Houston[1st Dist.] 1988, no writ); Nowlin v. Frost Nat. Bank, 908 S.W.2d 283, 286 (Tex.App.-Houston[1st Dist.] 1995, no writ). If the court can give a certain or definite legal meaning or interpretation to the words of an instrument, it is unambiguous and the court may construe it as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983). If, however, the meaning of the instrument is uncertain or reasonably susceptible to more than one meaning, it is ambiguous. Id. If it is ambiguous, then its interpretation presents a fact issue precluding summary judgment. Id. at 394; Nowlin, 908 S.W.2d at 286.

Under the Republic National Bank test, the will must refer to the power of appointment or to the property subject to such power, or the donee of the power must have owned no other property to which the will could have attached.... (Emphasis added). Republic National Bank, 283 S.W.2d at 47. See also Lowe v. Ragland, 156 Tex. 504, 297 S.W.2d 668, 674 (1957) (emphasizing that one of the three requirements must be met to prove *672an exercise of the power). In this case, Jacob’s will expressly stated that he intended to dispose of all of his property by his will, including “any property over which I may have a power of appointment” (emphasis added). Based on section 37, Texas Probate Code, Jacob was vested with the power of appointment granted to him in the will immediately upon Lurine’s death; therefore, Jacob could and did exercise that power by his will. See Foster v. Foster, 884 S.W.2d 497, 500 (Tex.App.-Dallas 1993, no writ). Section 37 provides:

When a person dies, leaving a lawful will, all of his estate devised or bequeathed by such will, and all powers of appointment granted in such will, shall vest immediately in the devisees and legatees of such estate and the donees of such powers....

Tex. Prob.Code Ann. § 37 (Vernon 1980 Supp.1999); Foster, 884 S.W.2d at 500.

Karon contends that Jacob’s declaration in article I, whereby he states he intends to dispose of all of his property by his will, makes no disposition of the property. Karon contends such a declaration is “precatory boilerplate language” without a direction as to distribution. We disagree.

“All rules of construction must yield to the basic intention and purpose of the testator as reflected by the entire instrument.” Shriner’s Hospital, Etc. v. Stahl, 610 S.W.2d 147, 151 (Tex.1980). “The intent of the testator, however, must be ascertained from the language used within the four corners of the instrument.” Id. “The question is not what the testatrix intended to write, but the meaning of the words she actually used.” Id. In the absence of ambiguity, we must construe the will based on the express language used. Henderson v. Parker, 728 S.W.2d 768, 770 (Tex.1987). We must determine what Jacob meant by what he actually said, and not by what he should have said, giving the words used in his will their common and ordinary meaning absent a contrary expression in the will. White v. Taylor, 155 Tex. 392, 286 S.W.2d 925 (1956); Allen v. Talley, 949 S.W.2d 59, 60 (Tex.App.-Eastland 1997, pet. denied). If the court can give a “certain or definite legal meaning or interpretation” to the words of an instrument, the instrument is unambiguous; and the court may construe it as a matter of law. Coker, 650 S.W.2d at 393. We find that Jacob clearly was referring to the power of appointment vested in him by Lurine’s will when he stated “any property over which I may have a power of appointment” in his will. Republic National Bank, 283 S.W.2d at 47.

In his will, Jacob made specific bequests of his residence and all tangible personal property, excluding cash in hand or on deposit, to his wife, Joyce. He then transferred “rest, residue and remainder of my estate ” of “every kind, character and description” to the trustee of the Jacob Greenberg Family Trust. Karon contends that there is no language in Jacob’s will which specifically refers to the property subject to the power of appointment, therefore, the remaining assets in Jacob’s Trust pass to Karon’s Trust.

In Krausse v. Barton, 430 S.W.2d 44, 48-49 (Tex.Civ.App.-Houston[1st Dist.] 1968, writ ref'd. n.r.e.), the court of appeals found that the testator intended that the appointive estate become part of her residual estate, and that it was to pass to her executor under the terms of her will. Id. In that case, the court of appeals found that Nellie H. Wilson clearly was referring to the power of appointment donated to her by her husband’s will when she stated, in Article I of her will, “even though a part of such property may not be subject to administration hereunder by my executor as part of the estate passing under this will,” and again, in Article III, when she referred to “property over which I then shall have any power of testamentary disposition.” Id. at 48. Her husband’s will authorized Mrs. Wilson to appoint her own estate by her last will. Id. By Article I of *673her will, Mrs. Wilson directed her executor to pay all debts, including the expenses of her last illness and funeral expenses, and taxes, including taxes levied by reason of the exercise of the power, from “the residue of my estate as herein devised and bequeathed” (emphasis added) Id. The court of appeals found that the meaning of the phrase “residue of my estate as herein devised and bequeathed,” as it was probably understood by the testator, must be determined by reference to Article III. Id. By this article, Mrs. Wilson disposed of all other property “which I may own or claim at the time of my death or over which I then shall have power of testamentary disposition.” Id. There was not enough money in the residue of her estate, aside from the property over which she had a power of testamentary disposition, to make the gifts to other relatives she wanted and pay the inheritance and estate taxes. Id. The court of appeals found that “[ujnder these circumstances the special bequests would be nugatory, a result which the testator in all probability did not intend.” Id. The court of appeals concluded that Mrs. Wilson’s will reflected “a clear indication that the testator intended that the appointive estate become part of her residual estate, and that it pass to her executor under the terms of the will.” Id. at 49. Having found that Jacob did exercise the power of appointment, we further hold that by the terms of his will, Jacob intended that his appointive estate become part of his residual estate, and that the appointive estate under Lurine’s will passed to the trustee of the Jacob Greenberg Family Trust.

As a sub-issue, Karon further argues that Jacob failed to exercise the power of appointment in conformity with the requirements in Lurine’s will which limited the power to appoint the property “free of the trust ... in favor of his estate.” In her brief, Karon cites Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223 (1935), as authority for her contention that “a testator may restrict the manner in which a power of appointment may be exercised and the power, if effective, must be exercised in the manner specified.” We find nothing in Allred that makes such a general statement. The only reference to a power is: “[A] provision in an instrument of gift for the execution of a power within a specified time is generally construed as directory only, unless it appears that the donor intended that time should be of the essence of the power conferred.” Id. at 228. Allred is not authority for appellant’s contention that Jacob improperly exercised his power of appointment. Karon’s argument is nothing more than her interpretation of how she thinks the power should be exercised and is conclusory. Karon cites no authority to support her contentions and this contention is overruled. A point of error not supported by authority is waived. See Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex.1983). We overrule Karon’s contentions in issue one that Jacob did not exercise the power of appointment donated to him in Lurine’s will, and that the appointive estate did not pass by terms of the residuary clause in Jacob’s will.

C. ESTOPPEL

1. Was Jacob estopped to exercise the power of appointment?

As a sub-issue in issue one, Karon contends that Jacob was estopped to exercise the power of appointment in his will because he was a fiduciary owing “an unwavering duty of good faith, fair dealing, loyalty and fidelity” to the beneficiaries of Jacob’s Trust, including the remainder beneficiary. Karon alleged this defense in her second amended original petition and in her response to Joyce’s second motion for summary judgment. By the terms of the first summary judgment rendered by the trial court, the issues of estoppel and Joyce’s affirmative defenses were not considered. Thereafter, Joyce filed her second motion for summary judgment alleging (1) Jacob was not es-topped from exercising his testamentary power of appointment over the assets of Jacob’s Trust; (2) Joyce was not estopped *674from asserting any and all defenses to Karon’s allegations; and (3) Karon is barred by the four-year statute of limitations to bring any action concerning the distribution or administration of Karon’s Trust. In her second motion for summary judgment, Joyce alleged that Karon showed no authority to support her claim that Jacob was estopped to exercise the power, and her claim should be dismissed. Karon responded contending Joyce’s second motion for summary judgment improperly sought to obtain summary judgment on Karon’s pleadings without giving her an opportunity to amend. The trial court did not expressly rule on this objection, and Karon does not raise this issue on appeal.1

Karon cites no authority to support her conclusory argument that Jacob was estopped to exercise the power of appointment because he breached his fiduciary duties. A point of error not supported by authority is waived. See Trenholm, 646 S.W.2d at 934. We overrule Karon’s sub-issue that Jacob was estopped to exercise the power of appointment.

2. Estoppel to assert the statute of limitations and affirmative defenses.

Joyce contends • Karon’s actions for accountings for both trusts are barred by the residual four-year statute of limitations. Tex. Civ. PRAC. & Rem.Code Ann. § 16.051 (Vernon 1997 & Supp.1999). In issue two, Karon contends Joyce is es-topped to assert the statute of limitations and all other affirmative defenses.

Karon argues that her affidavit establishes her claim of equitable estoppel against Joyce to assert limitations and other affirmative defenses. She argues that her testimony in her affidavit shows that Jacob’s conduct precluded inquiry into his dealings with Lurine’s trusts. She claims she had “no other choice” than to show respect to her father and rely on what information he saw fit to provide to her.

The only summary judgment proof attached to Karon’s response was her affidavit. The only statements in Karon’s affidavit relating to a claim of estoppel were:

6. “From before my mother’s death until his death, my father bragged about his financial success and frequently complained about the amount of tax he had to pay. After his marriage to Joyce Z. Greenberg, my father travelled [sic] and entertained to an extent and in a style far in excess of the standard to which he had been accustomed while my mother was alive.
7. “My father told me a number of times that I would be “a very rich girl.” I understood this to mean that I would receive at least the assets of the Jacob Greenberg Trust. I relied on this statement in not making further inquiry about both the Jacob Greenberg Trust and the Abby Greenberg Rosenfield Trust. Only after my father’s death did I learn that my father had purported to terminate the Jacob Greenberg Trust before his death.
8. “From my mother’s death until his death, my father provided me with only such information as he saw fit concerning my mother’s estaj;e and the Abby Greenberg Rosenfield Trust and no information about the Jacob Greenberg Trust. Any requests for information were met with angry tirades by my father. I felt I could not make inquiries of him without jeopardizing what positive relationship I and my sons did have with my father. Despite our problems, I felt I had no choice but to show respect for my father and rely on such information as he did provide me.”

Joyce replied to Karon’s response and objected that these statements were hearsay, inadmissible character evidence, *675and in violation of the Dead Man’s statute (rule 601(b), Texas Rules of Evidence). There is no order sustaining or overruling these objections, and nothing in the judgment indicates the trial court considered these objections. Therefore, the objected to evidence remains a part of the summary judgment evidence. See Giese v. NCNB Texas Forney Banking Center, 881 S.W.2d 776, 782 (Tex.App.-Dallas 1994, no writ). On appeal, Karon contends her evidence raised a material fact issue and the trial court erred in granting Joyce’s second motion for summary judgment.

To constitute an equitable estop-pel, there must exist: (1) a false representation or concealment of material facts; (2) made with actual or constructive knowledge of the facts; (3) to a party without knowledge or the means of acquiring knowledge of the real facts; (4) made with the intention that it should be acted on; and (5) the party to whom it was made must have relied on or acted on it to his prejudice. See Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 736-37 (Tex.App.-Corpus Christi 1994, writ denied).

In this case, Karon’s affidavit fails to show any misrepresentation or concealment of material facts. The statement that Jacob told her she would be “a very rich girl,” upon which she relied in not making any further inquiry about the trusts, is nothing more than an opinion and cannot be the basis of an equitable estop-pel. To create an estoppel, the representation relied on must be a statement of material fact, and not a mere expression of opinion. See Dallas Cowboys Football Club, Inc. v. Harris, 348 S.W.2d 37, 43 (Tex.Civ.App.-Dallas 1961, no writ). The affidavit does not set forth facts to establish any element of equitable estoppel. The affidavit consists of conclusory statements concerning Karon’s relationship with Jacob and what he did or did not do in general terms. Affidavits containing conclusory statements unsupported by facts are not competent summary judgment proof. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984); Aldridge v. De Los Santos, 878 S.W.2d 288, 296 (Tex.App.-Corpus Christi 1994, writ dism’d w.o.j.). More importantly, there is nothing in Karon’s statement indicating she was prejudiced by Jacob’s actions or inactions. Her statement provides no insight as to any detriment, loss, or injury she suffered by Jacob’s actions or inactions. See Randle v. NCNB Texas Nat. Bank, 812 S.W.2d 381, 386-87 (Tex.App.-Dallas 1991, no writ). We find that Karon has not raised a material fact issue on any element of equitable estoppel.

Karon further argues that Jacob’s “position, conduct and relationship effectively precluded inquiry into his dealings with” Lurine’s trusts. A defendant is es-topped from relying on limitations as an affirmative defense when the defendant is under a duty to make a disclosure but fraudulently conceals the existence of the cause of action from the party to whom it belongs. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983). The estoppel effect ends when the party learns of facts or circumstances that would lead a reasonably prudent person to inquire and thereby discover the concealed cause of action. Leeds v. Cooley, 702 S.W.2d 213, 215 (Tex.App.—Houston [1st Dist.] 1985, writ ref'd n.r.e.). As we indicated in our discussion above, Karon’s affidavit is not summary judgment evidence of any element of equitable estoppel. Her conclusions that she had to rely on Jacob and respect his dealings with the trusts are not evidence of a concealment of a cause of action such as to create a fact issue of estoppel. Furthermore, Joyce attached documents to her second motion for summary judgment demonstrating that Jacob had notified Ka-ron, in writing, that he was resigning as trustee of Karon’s trust effective March 1, 1990. He remained the trustee of Jacob’s trust until his death, and when his will was probated, whatever remained in Jacob’s trust went to Joyce. Karon filed her original petition against Joyce on March 25, 1996, six years after she had been notified *676that Jacob resigned as trustee. Her affidavit does not controvert the fact that more than four years passed from the time she was notified of Jacob’s resignation as trustee until suit was filed. We find Joyce was not estopped to assert her claim of the statute of limitations or any affirmative defenses. Karon’s contention in issue two that Joyce was so estopped is overruled.

D. STATUTE OF LIMITATIONS.

In her third issue, Karon contends her claim with respect to Karon’s trust is not barred by limitations. Karon relies on S.V. v. R.V., 933 S.W.2d 1, 8 (Tex.1996), for the proposition that a breach of fiduciary duty is inherently undiscoverable because “a person to whom a fiduciary duty is owed is either unable to inquire into the fiduciary’s actions or unaware of the need to do so.” Id.

In the recent case of KPMG Peat Marwick v. HCH, the supreme court set forth the standard of review for motions for summary judgment on the affirmative defense of limitations, as follows:

A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense [citation omitted]. Thus, the defendant must (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 [citations omitted], If the movant establishes that the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations [citation omitted].

KPMG Peat Marwick v. Harrison County Housing, 988 S.W.2d 746, 748 (Tex.1999).

1. Did Joyce conclusively prove when the cause of action accrued?

In her first amended original petition and counterclaim, Joyce pleaded that Ka-ron’s demand for an accounting and other claims were barred by the residual four-year statute of limitations, section 16.051, Texas Civil Practices and Remedies Code. In her second motion for partial summary judgment, Joyce alleged that any action for an accounting or for a breach of trust regarding the Abby Greenberg Rosenfield Trust accrued no later than March 1, 1990, the date of Jacob Greenberg’s resignation as trustee. In support of that motion, Joyce attached copies of a letter from Jacob to Karon, dated April 16, 1981, stating he had set up the trusts pursuant to Lu-rine’s will, and setting out in detail the sums of money she would receive. He asked Karon to sign the duplicate copy of that letter and the accounting which was attached to it to indicate her approval. In her handwritten letter to Jacob, Karon acknowledged receipt of the correspondence but stated: “I have decided not to sign the letter which you recently sent.” Copies of Jacob’s letters to Karon dated February 27, 1990, resigning as trustee of Karon’s trust and appointing Karon’s sons, Alan and Thomas as successor co-trustees, were attached. Jacob’s resignation became effective as of March 1, 1990. Alan and Thomas signed the appointments as successor trustees to Karon’s trust.

In her response, Karon objected to Joyce’s summary judgment proof but never obtained a ruling on her objections from the trial court. Therefore, all Joyce’s summary judgment proof remains a part of the summary judgment evidence. See Giese v. NCNB Texas Forney Banking Center, 881 S.W.2d 776, 782 (Tex.App.-Dallas 1994, no writ).

The only summary judgment proof offered in response to Joyce’s summary judgment motion was Karon’s conclusory affidavit discussed above under her estop-pel claims. As we indicated, her affidavit raises no fact issues because it is concluso-ry. In her brief, Karon now asserts that *677the discovery rule is applicable and S.V. v. R.V. makes a fiduciary’s misconduct “inherently undiscoverable.” S.V. v. R.V., 933 S.W.2d at 8. She contends the burden is on Joyce to negate the discovery rule by proving as a matter of law that no issue of material fact exists concerning when Ka-ron discovered or should have discovered the breach of trust.

We find that Joyce conclusively proved that this cause of action accrued no later than March 1, 1990, by Jacob’s resignation as trustee of Karon’s trust. Karon does not dispute that she received this notice. On appeal, Karon contends Joyce had to negate the discovery rule by proving there is no fact issue concerning when Karon discovered or should have discovered the harm. In KPMG Peat Marwick, the supreme court considered a similar contention. KPMG Peat Marwick, 988 S.W.2d at 749-50. In that case, Peat Marwick’s summary judgment evidence conclusively established that the two-year statute of limitations had accrued more than two years prior to HCH filing its lawsuit. Id. at 749. HCH asserted that Peat Marwick fraudulently concealed its wrongful conduct, and thus, limitations did not begin to run until HCH knew or should have known of its injury. Id. HCH also asserted that its pleading was sufficient summary judgment evidence of the affirmative defense of fraudulent concealment to defeat Peat Marwick’s summary judgment motion. Id. HCH did not raise fraudulent concealment as an affirmative defense to the statute of limitations. Id. The supreme court held:

First, 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. A mere pleading does not satisfy either burden. Thus, even assuming that HCH pled fraudulent concealment as an affirmative defense to Peat Marwick’s answer pleading limitations, HCH still had to respond to Peat Marwick’s summary judgment motion. There is no such response in the record. Therefore, HCH did not carry its burden to both plead the defense and support it with summary judgment evidence.

KPMG Peat Marwick, 988 S.W.2d at 749-50.

In this case, Karon did not allege, plead nor otherwise raise the discovery rule in her response to Joyce’s second motion for partial summary judgment. Karon raises the negation of the discovery rule for the first time on appeal. The supreme court in Peat Marwick stated that the defendant must “negate the discovery rule, if it applies and has been pleaded or otherwise raised .... ” Id. at 748. Karon neither pleaded the discovery rule defense nor otherwise raised it with her summary judgment affidavit. Therefore, we find that Joyce conclusively proved when the cause of action accrued. We overrule Ka-ron’s contention in issue three that the statute of limitations does not apply to her claim, and we affirm the judgment of the trial court.

. Because Karon has not raised the issue on appeal of the trial court's failure to require Joyce to specially except to Karon’s pleading, concerning the issue of estoppel of Jacob to exercise the power, we have nothing to review on this point. See San Jacinto River Authority v. Duke, 783 S.W.2d 209, 210 (Tex.1990).