                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-11-00266-CV


DAVID LEE CARPENTER, JR.                                            APPELLANT

                                        V.

SHARON K. CARPENTER, AKA                                              APPELLEE
SHARON KIMBERLY WEISE


                                     ----------

          FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

                                     ----------

                        MEMORANDUM OPINION1

                                     ----------

      Appellant David Lee Carpenter, Jr. (David) filed suit against his stepmother

Appellee Sharon K. Carpenter, also known as Sharon Kimberly Weise, (Sharon) on

August 19, 2010, asserting claims of destruction of personal property and

conversion of personal property. Through amended petitions, David added claims

for fraud and for “concealment.”

      1
       See Tex. R. App. P. 47.4.
      In his second amended petition, David alleged that until the October 30, 2007

death of his father, he lived with his father and Sharon at their home in Arlington,

Texas. David alleged that when he moved out, he left behind personal property at

the residence, “including but not limited to his clothing, a diamond engagement ring,

financial records, pictures, computer equipment, radio equipment, speakers[,] and

vehicle parts.” Some of the property, such as the ring, had been left in a locked

filing cabinet in his locked bedroom. David alleged that he did not return to the

residence to retrieve his property because, “based on an irate phone call [with

Sharon] on or about December 7, 2007,” David believed that Sharon would try to

have him arrested if he tried to enter the residence.

      David further alleged that Sharon authorized David to retrieve his property on

September 13, 2008, and that on that date, he went to the residence with his

attorney. Once there, he was not allowed into the house or garage; Sharon had left

David’s property outside. David alleged that the diamond engagement ring was not

included with the property that had been left outside. David also claimed that some

of his property had been destroyed from Sharon’s “leaving his emptied file cabinet,

clothing, and all other personal property outside for over [eight] months” and that

Sharon “scratched or destroyed all other personal property.”            Regarding his

conversion claim, David alleged that Sharon converted the engagement ring and

“other personal property,” including parts for his motorcycle, pictures, tools, personal

gift cards, and financial records.




                                           2
      Under his fraud claim, David asserted that Sharon knew that she had the

engagement ring and other personal property of his but that she denied having it.

David asserted that Sharon “defrauded [him] by asserting the ring and other

personal property . . . was or could have been taken by unknown third parties when

in fact [she] had the ring and other personal property in her possession, custody[,]

and control at all times.”

      As to his “concealment” claim, David asserted that Sharon concealed his

property, that she made material misrepresentations as to the location and condition

of his property, and that he relied on her representations that he would be able to

pick up all of his property on September 13, 2008. He also asserted that Sharon’s

husband told him that the ring had been placed in a safe deposit box at some point

to keep David from being able to recover it.

      Sharon filed an answer that included a general denial and asserted the

affirmative defense of limitations. Sharon also filed a motion for summary judgment

asserting that David’s claims were barred by civil practice and remedies code

section 16.003, which provides a two year statute of limitations for “trespass for

injury . . . to the property of another, conversion of personal property, [and] taking or

detaining the personal property of another.” Sharon alleged that on February 7,

2008, David’s attorney sent a letter to Sharon, making a formal demand for the

return of David’s property. She attached a copy of the demand letter to her motion.

      David filed a response in which he asserted that the discovery rule applied

because his causes of action were not discoverable until September 13, 2008. He


                                           3
stated that until that date, he believed his personal property was safely stored in his

locked bedroom and that Sharon had prevented him from retrieving his property

before that time.

      Sharon filed a supplemental motion for summary judgment asserting that

David’s fraud claim was nothing more than a relabeled claim for conversion and

destruction; that “concealment” is a defensive doctrine rather than a cause of action;

and that the discovery rule did not apply. The trial court granted summary judgment

for Sharon, and David filed this appeal.

      In David’s first issue, he argues generally that the trial court erred by granting

Sharon’s motion for summary judgment. In David’s second issue, he argues that

the trial court erred by granting Sharon’s motion for summary judgment based on

the statute of limitations. In David’s third issue, he asserts that the trial court erred

by granting summary judgment because the discovery rule applied to his claim.

David argues these three issues together, and, accordingly, we consider them

together.

      The gist of David’s argument is (1) that until September 13, 2008, David

believed and had good reason to believe that his property was safe from destruction

or conversion because the property was locked in his bedroom at the residence in a

locked filing cabinet and (2) that September 13, 2008, was the first date he knew or

could have known of the destruction or conversion of his property because he had

not been allowed onto the premises to retrieve his property until that date.




                                           4
Accordingly, David argues, the discovery rule applies, and the statute of limitations

does not bar his claims.

      With respect to the property that David alleged was never returned to him, he

asserted a claim for conversion. We address this claim first. Statutes of limitations

begin to run (and the cause of action accrues) “when facts come into existence that

authorize a claimant to seek a judicial remedy,”2 or, put another way, “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.”3 Accordingly,

David’s cause of action accrued (and limitations began to run) at the time of

Sharon’s conversion.4

      To establish conversion . . ., a plaintiff must prove that

      (1) [the plaintiff] owned or had legal possession of the property or
      entitlement to possession; (2) the defendant unlawfully and without
      authorization assumed and exercised dominion and control over the
      property to the exclusion of, or inconsistent with the plaintiff’s rights as
      an owner; (3) the plaintiff demanded return of the property; and (4) the
      defendant refused to return the property.5

      2
         Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 202 (Tex.
2011).
      3
       S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996); see also Barker v. Eckman, 213
S.W.3d 306, 311 (Tex. 2006) (stating that a cause of action accrues “when a party
has been injured by actions or omissions of another” and that “[l]imitations begins to
run upon accrual of the cause of action”); Poag v. Flories, 317 S.W.3d 820, 826
(Tex. App.—Fort Worth 2010, pet. denied) (stating that limitations begin to run
“when a wrongful act causes a legal injury”).
      4
         See Barker, 213 S.W.3d at 311.
      5
         Augillard v. Madura, 257 S.W.3d 494, 500 (Tex. App.—Austin 2008, no pet.).


                                           5
Demand and refusal are not required when the possession was acquired wrongfully,

after the conversion has become complete, or when it is shown that a demand

would have been useless.6 Thus, generally, a conversion claim accrues (and thus

limitations begins to run) at the time of the unlawful taking, or, if the taking is not

originally unlawful, when “the return of the property has been demanded and

refused, or [when] the person in possession has unequivocally exercised acts of

domination over the property inconsistent with the claims of the owner or the person

entitled to possession.”7 In this case, then, the statute of limitations began to run on

David’s conversion claim when Sharon unlawfully assumed control over David’s

property to the exclusion of David’s rights as owner, unless Sharon’s assumption of

control was not unlawful, in which case limitations began running when David

demanded return of the property and Sharon refused to return the property or when

Sharon otherwise unequivocally exercised control over the property inconsistent

with David’s claims.

      Sharon pointed out in her summary judgment motion that on February 7,

2008, David’s attorney sent Sharon a letter stating that David “has been denied

access to get his personal belongings and mail from the residence” and that David

“demands immediately his personal belongings.” This letter established that as of


      6
       McVea v. Verkins, 587 S.W.2d 526, 531 (Tex. Civ. App.—Corpus Christi
1979, no pet.).
      7
      Rogers v. Ricane Enters., Inc., 930 S.W.2d 157, 166 (Tex. App.—Amarillo
1996, writ denied).


                                           6
February 7, 2008, Sharon was asserting control over David’s property and that she

had denied David access to retrieve it. The wording of the letter necessarily implies

that David had already at least requested that his property be returned to him and

been refused; if he had not previously formally demanded the return of his property,

he demanded it as of that date.

      David’s summary judgment response also included his attorney’s affidavit in

which he stated that he sent a demand to Sharon on February 7, 2008, and never

received a response. David also included his own affidavit in which he stated that

he spoke to Sharon on December 8, 2007, and as of a few days after that, she

“refused to allow me to pick up any of my personal property from that point on.” In

his supplemental response, David attached the affidavit of his stepuncle in which his

stepuncle stated that on December 10, 2007, David asked him to ask Sharon if

David could pick up his belongings, that Sharon replied that David could not come to

the house for any reason, and that he told this to David. Thus, David’s own

evidence shows that even before February 2008, Sharon had both unequivocally

exercised control over David’s property inconsistent with his claims to it and refused

David’s demand for its return. From the evidence produced with the summary

judgment motion and responses, the trial court did not err by concluding that David’s

conversion claim began to run as early as December 2007 and at the latest in

February 2008.

      David argues, however, that the trial court should have applied the discovery

rule. Regarding the discovery rule, this court has noted that


                                          7
      [t]he discovery rule defers the accrual of a cause of action until the
      plaintiff knows, or by exercising reasonable diligence, should know of
      the facts giving rise to the claim. For the discovery rule to apply, the
      injury must be inherently undiscoverable and objectively verifiable. An
      injury is inherently undiscoverable if it is the type of injury that is not
      generally discoverable by the exercise of reasonable diligence.8

David makes no argument on appeal about why Sharon’s conversion was inherently

undiscoverable. In fact, it was discoverable; David was aware at least as early as

February 7, 2008, that Sharon had assumed control of his property and was refusing

to return it. He demanded the immediate return of his property, but Sharon did not

comply. That David may not have known that the property would never be returned

to him is irrelevant; the conversion occurred when Sharon unequivocally exercised

control over David’s property inconsistent with his claims to it or refused David’s

demand for its return, which, as we have held, occurred no later than in February

2008. Accordingly, David failed to establish that the discovery rule deferred the start

of the limitations period on his conversion claim. We overrule David’s first, second,

and third issues as to his conversion claim.

      For David’s property that was returned to him but in a damaged or destroyed

state, David asserted a claim for destruction of property rather than conversion, and

we now address that claim. Destruction of personal property may constitute a

conversion of the property,9 and thus David could have asserted a claim for


      8
       Poag, 317 S.W.3d at 826 (citations omitted).
      9
        Stidham v. Lewis, 23 S.W.2d 851, 852 (Tex. Civ. App.—Fort Worth 1929, no
writ); see also Am. Sur. Co. of N.Y. v. Hill Cnty., 254 S.W. 241, 246 (Tex. Civ.
App.—Dallas 1923) (noting that a wrongful taking of the property from the

                                          8
conversion of this property. But destruction of property may also constitute a

trespass.10 David does not label his claim as either conversion or trespass to

chattel, calling it simply “destruction of property.” To the extent that David’s claim

regarding his returned-but-destroyed property was intended to be a conversion

claim, we have already held that the trial court did not err by granting summary

judgment on that claim.

      But David could also have intended to assert a claim for trespass to personal

property.11 Like conversion, the tort of trespass protects against interference with

one’s possessory interest in personal property.12 If Sharon intentionally interfered

with David’s right to possession of his personal property, she committed trespass.


possession of the owner, so as to constitute a conversion, can be committed by a
destruction of the property), aff’d, 267 S.W. 265 (Tex. Comm’n App. 1924, judgm’t
adopted).
      10
         See Mountain States Tel. & Tel. Co. v. Vowell Const. Co., 161 Tex. 432,
436, 341 S.W.2d 148, 150 (1960) (noting that “[d]estruction of, or injury to, personal
property, regardless of negligence, may be a trespass”); see also Restatement
(Second) of Torts §§ 216–22 (discussing the tort of trespass to chattel and providing
in § 218 that a person who commits trespass to a chattel is subject to liability if “the
chattel is impaired as to its condition, quality, or value”).
      11
         See Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981)
(stating that “[i]f the wrongful detention [of personal property] seriously interferes
with the owner’s right to control the personalty, there is not only a trespass but a
conversion”); Armstrong v. Benavides, 180 S.W.3d 359, 363 (Tex. App.—Dallas
2005, no pet.) (“A trespass to chattels is a wrongful interference with or injury to
property that causes actual damage to the property or deprives the owner of its use
for a substantial period of time.”).
      12
         Id. (“Trespass and conversion are torts designed to protect against
interferences with one’s possessory interest in personalty.”); Zapata, 615 S.W.2d at
201.


                                           9
      In a trespass to personal property claim, however, the claimant is not

necessarily entitled to damages—only when the wrongful detention deprives the

owner of its use for a substantial period of time or is accompanied by actual damage

to the property will the owner be entitled to damages for the trespass.13 Here, David

asserted that his property was destroyed, and accordingly, Sharon would have been

liable for damages if David proved his trespass claim at trial. Based on our reading

of David’s pleadings, he sufficiently pled not only a claim for damages based on

conversion, but also a claim for damages based on trespass. We must therefore

consider whether the trial court erred by granting summary judgment based on

limitations on David’s trespass claim.

      The trespass occurred at the time of Sharon’s wrongful detention of David’s

property.14 The cause of action accrued at that time, and therefore the limitations

period began to run at that time. Because, as Sharon asserted in her summary

judgment motion, the statute of limitations for trespass to property claims is two

years, limitations had run on David’s trespass claim by the time he filed suit, unless

it was tolled by the discovery rule. But even if David did not yet know that his

property had been damaged while in Sharon’s possession, he knew of her wrongful

detention of his property no later than February 2008. Accordingly, the discovery

rule does not apply, and the trial court did not err by granting summary judgment on


      13
        Id.
      14
        See id.; Armstrong, 180 S.W.3d at 363.


                                         10
the basis that David’s trespass claim is time-barred.15 We overrule the remainder of

David’s first, second, and third issues.

      In David’s fourth and final issue, he argues that the trial court erred by

granting summary judgment on his fraud and fraudulent concealment claims

because fraud has a four year statute of limitations. David’s main argument under

this issue is essentially a response to Sharon’s argument in the trial court that his

fraud and fraudulent concealment claims are nothing more than relabeled claims for

conversion and destruction. David argues that “fraud, fraudulent concealment[,] and

conversion all have separate and distinct essential elements to their causes of

action.” David then sets out the elements of fraud, fraudulent concealment, and

conversion and points out that they have different elements. He also points out that

fraud has a four-year statute of limitations and that courts have applied the

discovery rule to fraud claims.

      We agree with David that fraud, conversion, and trespass have different

elements. But David fails to address Sharon’s argument in her supplemental

summary judgment motion that in this case, looking to the substance of David’s

claims, he did not plead a fraud claim and only repled his conversion and

destruction of property claims, calling it fraud in order to avoid the statute of


      15
         See Palmer v. Sears, Roebuck & Co., 969 S.W.2d 582, 584–86 (Tex.
App.—Fort Worth 1998, no pet.) (holding that Appellant’s cause of action for his
physical injuries accrued from the point at which Sears negligently repaired his air
conditioner, not from the much later point at which he realized that his physical
illness could have been caused by the negligent repairs).


                                           11
limitations. Regarding fraud, David makes no argument for why the trial court erred

by granting summary judgment on his fraud claim other than noting that the torts of

fraud and conversion have different elements. And we note that in his pleading of

his fraud claim, David alleged that Sharon had possession of his engagement ring

and other personal property but denied having possession and refused to make the

property available to him, with the intent to deprive David of his property. We agree

with Sharon that, looking to the substance of his claim, David essentially repled his

conversion claim as a fraud claim.16 We therefore overrule the part of David’s fourth

issue regarding his fraud claim.

      Regarding David’s fraudulent concealment claim, we agree with Sharon that

fraudulent concealment is an affirmative defense to statutes of limitations and that it

is not an independent cause of action.17 Thus, to the extent that David attempted to

assert a cause of action for fraudulent concealment, the trial court did not err by

granting summary judgment on the claim.

      As we have stated, limitations generally begins to run when the cause of

action accrues, and the cause of action accrues “when a wrongful act causes some

legal injury.”18 But accrual of the cause of action is deferred in two types of cases.

      16
       See Hodge v. Northern Trust Bank of Tex. N.A., 54 S.W.3d 518, 522–23
(Tex. App.—Eastland 2001, pet. denied) (holding that plaintiff could not recast his
conversion claim as a contract claim to avoid limitations).
      17
       See Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 10 (Tex. App.—San
Antonio 2004, pet. denied) (op. on reh’g).
      18
        See S. V., 933 S.W.2d at 4.


                                          12
In one type of case, “‘the nature of the injury incurred is inherently undiscoverable

and the evidence of injury is objectively verifiable.’”19 In these types of cases, as we

have noted, the discovery rule applies. The other type of case in which the accrual

of the claim is deferred is when the case involves fraud or fraudulent concealment.

The cause of action is deferred in those cases (and thus limitations does not begin

to run at the time of the legal injury) “because a person cannot be permitted to avoid

liability for his actions by deceitfully concealing wrongdoing until limitations has

run.”20 But “[f]raudulent concealment will not . . . bar limitations when the plaintiff

discovers the wrong or could have discovered it through the exercise of reasonable

diligence.”21

      To the extent that David’s argument is that the trial court erred by granting

summary judgment because he raised a fact issue on this affirmative defense,22

David makes no argument about what evidence he produced below to raise a fact


      19
       Id. at 6 (quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453
(Tex.1996)).
      20
        Id.
      21
        Kerlin v. Sauceda, 263 S.W.3d 920, 925 (Tex. 2008).
      22
        See Nichols v. Smith, 507 S.W.2d 518, 521 (Tex. 1974) (noting that once
the summary judgment movant established the defense of limitations as a matter of
law, the non-movant had the burden to come forward with evidence raising a fact
issue regarding fraudulent concealment); see also Bassett v. Am. Nat’l Bank, 145
S.W.3d 692, 696 (Tex. App.—Fort Worth 2004, no pet.) (stating that “[a] defendant
relying on an affirmative defense in opposing a summary judgment must come
forward with summary judgment evidence sufficient to raise an issue of material fact
on each element of the defense”).


                                          13
issue. Furthermore, the summary judgment evidence showed that Sharon did not

conceal her trespass or conversion and that David could have discovered it (and did

discover it) through the exercise of reasonable diligence.23 Although the extent of

David’s loss may not have been known to him at the time his claim accrued—that is,

he may not have known that Sharon had damaged some of his property and that

she would never return other property—the fact that she had committed trespass

and conversion was not concealed from him. Accordingly, David failed to raise a

fact issue on this affirmative defense, which he was required to do in order to defeat

summary judgment.24

      Moreover, this court has held that fraudulent concealment is limited to

situations in which the defendant had a duty of disclosure,25 and David makes no

argument that Sharon had any duty of disclosure to him, nor does he make any

explanation of what the basis of that duty might be. We have reviewed David’s

petition and his summary judgment response, and we have found no assertion that

Sharon owed him any duty of disclosure. We therefore cannot say that the trial




      23
        See Kerlin, 263 S.W.3d at 925.
      24
        See Nichols, 507 S.W.2d at 521.
      25
        See Savage v. Psychiatric Inst. of Bedford, Inc., 965 S.W.2d 745, 753 (Tex.
App.—Fort Worth 1998, pet. denied) (noting the limitation and stating that
“[b]ecause of this requirement, the cases where fraudulent concealment applies are
rare, such as those involving doctor-patient or fiduciary relationships”).


                                         14
court erred by not denying the summary judgment based on fraudulent disclosure.26

Accordingly, we overrule David’s fourth issue.

      Having overruled all of David’s issues, we affirm the trial court’s judgment.




                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.

MCCOY, J., filed a dissenting opinion.

WALKER, J., concurs without an opinion.

DELIVERED: July 5, 2012




      26
       See Nichols, 507 S.W.2d at 521.


                                         15
                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-11-00266-CV


DAVID LEE CARPENTER, JR.                                           APPELLANT

                                       V.

SHARON K. CARPENTER, AKA                                            APPELLEE
SHARON KIMBERLY WEISE


                                    ----------

          FROM COUNTY COURT AT LAW NO. 3 OF TARRANT COUNTY

                                    ----------

                DISSENTING MEMORANDUM OPINION1

                                    ----------

      I respectfully dissent. “At common law, the term ‘fraud’ means an act,

omission, or concealment in breach of a legal duty, trust, or confidence justly

imposed, when the breach causes injury to another or the taking of an undue and

unconscientious advantage.     Common-law fraud includes both actual and

constructive fraud.” Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 702

      1
      See Tex. R. App. P. 47.4.
(Tex. App.—Fort Worth 2006, pet. denied). “The elements of actual fraud are: (1) a

false, material representation was made, (2) that was either known to be false when

made or was made without knowledge of its truth, (3) that was intended to be acted

upon, (4) that was relied upon, and (5) that caused injury.” Id. at 703.

      I would hold that the events as recounted in the majority’s opinion have raised

a fact question as to the issue of fraud.

      Fraudulent concealment tolls limitations because a person cannot be

permitted to avoid liability for her actions by deceitfully concealing wrongdoing until

limitations has run. Shell Oil Co. v. Ross, 356 S.W.3d 924, 927 (Tex. 2011). To

prove fraudulent concealment, a party must show that the concealing party had

knowledge of the wrongdoing, had a fixed purpose to conceal the wrong, and did in

fact conceal the wrong from the complaining party. Dernick Res. Inc. v. Wilstein,

312 S.W.3d 864, 878 (Tex. App.—Houston [1st Dist.] 2009, no pet.).

      I would likewise hold that a fact question exists as to the applicability of

fraudulent concealment to one or more of David’s causes of action.

      Therefore, I would remand this case to the trial court for further proceedings.



                                                     BOB MCCOY
                                                     JUSTICE


DELIVERED: July 5, 2012




                                            2
