Opinion
No. 04-16-00394-CV
04-05-2017
Carl D. ECKHARDT, Appellant v. Darnell NESRSTA, Appellee
MEMORANDUM OPINION
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2014 CI 10204
Honorable Gloria Saldaña, Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Sandee Bryan Marion, Chief Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice REVERSED AND REMANDED
Carl Eckhardt appeals the trial court's summary judgment awarding his sister, Darnell Nesrsta, damages on her conversion claim. Eckhardt argues he raised a fact issue as to his affirmative defense of quasi-estoppel and conclusively established Nesrsta's claim is barred by the statute of limitations. We reverse and remand for further proceedings.
BACKGROUND
When Eckhardt and Nesrsta's father died in 2006, he owned a house in San Antonio and jointly owned three accounts at a credit union with Eckhardt and Nesrsta. The three joint accounts were multi-party accounts with rights of survivorship. In April of 2009, Eckhardt closed the three joint accounts and transferred the funds into his separate, solely owned account at the credit union. And also in 2009, as independent executor of his father's estate, Eckhardt signed an executor's deed conveying the San Antonio house to Nesrsta.
According to Eckhardt, he transferred the funds to his account because Nesrsta wanted to avoid the tax implications of receiving a large cash payment, and she agreed to take the San Antonio house in lieu of her one half of the funds in the three joint accounts. According to Nesrsta, there was no such agreement, and Eckhardt transferred the funds without her knowledge. It is undisputed that during 2010 and 2011, Eckhardt withdrew money from his newly opened, separate account and disbursed funds to Nesrsta on several occasions upon her request. But in January 2014, Eckhardt refused to pay Nesrsta the amount she requested.
In June 2014, Nesrsta filed suit against Eckhardt, alleging she was entitled to one half of the total amount held in the three joint accounts at the time of their father's death. Nesrsta alleged Eckhardt's refusal to disburse money to her constituted conversion. In his answer, Eckhardt pled several affirmative defenses, including quasi-estoppel and statute of limitations.
Nesrsta filed a traditional motion for summary judgment on her conversion claim. In his response, Eckhardt presented only his affirmative defense of quasi-estoppel and attached his affidavit and the executor's deed for the San Antonio house. Eckhardt swore in his affidavit that Nesrsta did not want to receive substantial cash payments because she had problems with the Internal Revenue Service, and Nesrsta agreed to take the San Antonio house in lieu of her one half of the funds in the three joint accounts. Eckhardt further swore he conveyed the San Antonio house to Nesrsta pursuant to this agreement, and allowing her to claim she is also entitled to one half of the funds would allow her to unfairly receive more than her one-half, entitled share of her father's estate. Nesrsta filed an affidavit, denying making any such arrangement with Eckhardt and having problems with the IRS. She also swore she did not know Eckhardt had transferred all the funds to a separate account solely in his name.
Eckhardt did not raise his affirmative defense of statute of limitations in his response to Nesrsta's traditional motion for summary judgment. However, he did file a traditional motion for summary judgment arguing Nesrsta's claim is barred by the statute of limitations. Eckhardt argued Nesrsta's cause of action accrued when he withdrew all of the money from the three accounts in 2009, and she filed suit in 2014, which is outside the applicable two-year limitations period. Nesrsta's posited the limitations period on her conversion claim began to run at the time Eckhardt first refused her request for money from his separate account in January 2014.
The trial court granted Nesrsta's motion for summary judgment, denied Eckhardt's competing motion, and rendered a $64,227.13 judgment against Eckhardt. Eckhardt filed a motion for new trial and a motion for leave to file additional summary judgment evidence. The trial court denied Eckhardt's motion for new trial, but did not rule on his motion to file additional evidence. Eckhardt appeals.
DISCUSSION
"We review a summary judgment de novo." City of San Antonio v. San Antonio Express-News, 47 S.W.3d 556, 561 (Tex. App.—San Antonio 2000, pet. denied). To prevail on a traditional motion for summary judgment, the movant must show "there is no genuine issue as to any material fact and the [movant] is entitled to judgment as a matter of law." TEX. R. CIV. P. 166a(c); accord Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). We take as true all evidence favorable to the nonmovant, resolve all conflicts in the evidence in the non-movants' favor, and "indulge every reasonable inference and resolve any doubts in the nonmovant's favor." Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); San Antonio Express-News, 47 S.W.3d at 561. When parties file competing motions for summary judgment, and the trial court grants one and denies the other, we review all issues presented and render the judgment the trial court should have rendered. Comm'rs Court v. Agan, 940 S.W.2d 77, 81 (Tex. 1997).
A. Evidence Attached to Eckhardt's Motion for New Trial
Eckhardt argues we must consider the evidence attached to his motion for new trial in determining whether he raised a fact issue regarding his affirmative defenses. Texas Rule of Civil Procedure 166a requires a party adverse to a summary judgment motion to file and serve opposing affidavits or other written response "not later than seven days prior to the day of hearing." TEX. R. CIV. P. 166a(c). A trial court may consider only the pleadings and evidence "on file at the time of the hearing, or filed thereafter and before judgment with permission of the court." Id. "When a motion for new trial is filed after summary judgment is granted, the trial court may only consider the record as it existed prior to granting the summary judgment." Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 374 (Tex. App.—San Antonio 1999, pet. denied). If the record does not affirmatively show the trial court accepted the late-filed evidence, "we presume the trial court did not consider it as evidence." Id. Here, Eckhardt filed evidence with his motion for new trial after the trial court rendered judgment. The record does not affirmatively show the trial court granted Eckhardt's motion for leave to file the late-filed evidence. We therefore may not consider the evidence filed with Eckhardt's motion for new trial in reviewing the trial court's ruling on Nesrsta's motion for summary judgment. See TEX. R. CIV. P. 166a(c); Basin Credit Consultants, 2 S.W.3d at 374.
B. Quasi-Estoppel
Eckhardt argues the evidence he timely produced in response to Nesrsta's motion raised a fact issue regarding his affirmative defense of quasi-estoppel and thereby demonstrated Nesrsta is not entitled to judgment as a matter of law. "Quasi-estoppel precludes a party from asserting, to another's disadvantage, a right inconsistent with a position previously taken." Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000). "The doctrine applies when it would be unconscionable to allow a person to maintain a position inconsistent with one to which he acquiesced, or from which he accepted a benefit." Id.
In this suit, Nesrsta maintains she is entitled to one half of the money that was in the three joint accounts at the time of her father's death. Eckhardt swore in his affidavit Nesrsta previously took the position that she would give Eckhardt her one half of the money in the joint accounts if Eckhardt conveyed all rights to their father's San Antonio house to her. Eckhardt produced evidence showing he and Nesrsta were each entitled to one half of their father's estate, he conveyed the San Antonio house to Nesrsta, and she thereby accepted a benefit from her prior position. He also produced evidence showing it would be unconscionable to allow Nesrsta to maintain she is entitled to one half of the money that was held in the joint accounts because he conveyed the San Antonio house to Nesrsta, who is entitled to one half under their father's estate under the will. Viewing the evidence in a light most favorable to Eckhardt, and drawing all reasonable inferences in his favor, the evidence raises a genuine issue of material fact that it would be unconscionable to allow Nesrsta to maintain a position inconsistent with one to which she acquiesced and from which she accepted a benefit. See id. Because Eckhardt raised a fact issue regarding his affirmative defense of quasi-estoppel, we hold the trial court erred by granting summary judgment in favor of Nesrsta.
C. Statute of Limitations
Eckhardt argues we must render judgment in his favor, instead of remand, because the trial court erred by denying his traditional motion for summary judgment on his limitations defense. He contends he conclusively established Nesrsta's cause of action for conversion accrued in April 2009 when he transferred the money from the three joint accounts into his separate account. The record shows Nesrsta knew Eckhardt transferred the funds as early as February 2010.
Subject to some exceptions not applicable in this case, "a person must bring suit for . . . conversion of personal property . . . not later than two years after the day the cause of action accrues." TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2016). When a cause of action for conversion accrues turns on whether the defendant's initial possession of the property was lawful or unlawful. Rogers v. Ricane Enter., Inc., 930 S.W.2d 157, 166 (Tex. App.—Amarillo 1996, writ denied). If the defendant's initial possession of the property was unlawful, "limitations begin to run at the time of the unlawful taking." Id. If the original possession is lawful, limitations begins to run at the time the property has been demanded and refused. See id. However, a plaintiff's demand for the return of property that is lawfully possessed by a defendant is not necessary if a demand would be useless or the defendant's acts manifest a clear repudiation of the plaintiff's rights. See id.; see also First State Bank, N.A. v. Morse, 227 S.W.3d 820, 827 (Tex. App.—Amarillo 2007, no pet.); Whitaker v. Bank of El Paso, 850 S.W.2d 757, 760 (Tex. App.—El Paso 1993, no writ).
In Nesrsta's affidavit, she swore she was initially unaware Eckhardt had closed the three joint accounts and transferred the funds to a separate account in his name. But in Eckhardt's affidavit, he swore Nesrsta agreed to accept the San Antonio house in lieu of her half of the money, and this arrangement was her idea to avoid the tax implications of receiving a substantial cash payment. For purposes of Eckhardt's summary judgment motion, Nesrsta is the nonmovant, and we must take the evidence favorable to her as true. Rhône-Poulenc, 997 S.W.2d at 223; San Antonio Express-News, 47 S.W.3d at 561. Because there is a fact issue as to whether Nesrsta agreed to accept the San Antonio house in lieu of her half of the money in the three joint accounts, Eckhardt did not conclusively establish his transfer of the funds to his separate account in April 2009 was unlawful. See Rogers, 930 S.W.2d at 166. We therefore hold Eckhardt did not conclusively establish he is entitled to judgment on the basis that Nesrsta's claim is barred by limitations.
CONCLUSION
The trial court erred by granting Nesrsta summary judgment because Eckhardt raised a fact issue as to his affirmative defense of quasi-estoppel. We therefore reverse the trial court's judgment. Because Eckhardt did not conclusively establish his entitlement to judgment on his limitations defense as a matter of law, we must remand this case for further proceedings.
Luz Elena D. Chapa, Justice