                                             OPINION
                                        No. 04-10-00616-CV

              IN THE GUARDIANSHIP OF Otilia PATLAN, an incapacitated person

                         From the Probate Court No 2, Bexar County, Texas
                                  Trial Court No. 2007-PC-0832
                             Honorable Tom Rickhoff, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: May 11, 2011

AFFIRMED

           Appellant Mary Pena, Otilia Patlan’s guardian, appeals the trial court’s granting of

Appellee Jesus Patlan Jr.’s no-evidence and traditional motion for summary judgment. The main

issue in this appeal is whether the time period a previous lawsuit is pending before being

dismissed for want of prosecution, when that lawsuit is between the same parties and contains

the same allegations, should be considered in determining whether an adequate time for

discovery has passed in the subsequent suit pursuant to Texas Rule of Civil Procedure 166a(i).

Because we hold such time can be considered in determining whether an adequate time for

discovery has passed under Rule 166a(i), we find the trial court did not abuse its discretion in

denying Mary Pena’s motion to continue the summary judgment hearing. Further, because Mary
                                                                                                  04-10-00616-CV


Pena did not produce sufficient evidence in response to the no-evidence motion for summary

judgment, we hold the trial court did not err in granting the no-evidence motion for summary

judgment. Thus, we affirm the judgment of the trial court. 1

                                                 BACKGROUND

        Otilia Patlan is a ninety-six-year-old woman who suffers from senile dementia. Otilia and

her husband, Jesus Patlan Sr., married in 1971, but had no children together. However, they each

had children from previous marriages. Appellant Mary Pena (“Mary”), who was appointed

Otilia’s guardian on June 20, 2007, is Otilia’s daughter.

        At the time of Otilia and Jesus Sr.’s marriage, Appellee Jesus Patlan Jr. (“Jesus Jr.”) was

the youngest in this blended family and considered Otilia to be his mother, not a step-mother. He

lived with his parents until his mid-twenties, and as his parents grew older, he began taking care

of them and managing their affairs. He and his father even had a joint bank account set up so that

Jesus Jr. could pay his father’s bills. When his father died in 2005, he took over the same role for

his mother. Thus, Jesus Jr., who was an employee of Broadway National Bank, had a joint

account set up in his and his mother’s names. Otilia signed all the necessary documents to set up

the joint account. The funds from his father’s pension, which now belonged to his mother as

survivorship benefits, were deposited into that joint account. Also deposited were proceeds from

his father’s life insurance policy under which Otilia was the beneficiary.

        In January 2007, Otilia’s condition deteriorated to such an extent that she had to be

admitted to a hospital. She was later transferred to a nursing home for rehabilitation. On June 20,

2007, her daughter Mary was appointed her guardian. In looking at Otilia’s personal affairs,

Mary became suspicious that Jesus Jr. was using Otilia’s funds for his own personal benefit, and

1
 Because we hold the trial court did not err in granting Jesus Patlan Jr.’s no-evidence motion for summary judgment,
we need not reach the issue of whether the trial court should have granted the traditional motion for summary
judgment.

                                                       -2-
                                                                                    04-10-00616-CV


not for Otilia’s. Mary hired an attorney who, on January 31, 2008, filed an original petition and

application for a temporary restraining order. That same day, the trial court signed the temporary

restraining order and set the cause for a temporary injunction hearing. In response Jesus Jr. filed

an answer to the lawsuit.

       At the temporary injunction hearing on March 4, 2008, Jesus Jr. took the stand and

testified. He testified that the culture of his family was such that everyone helped whoever

needed the help. He testified that before his father’s death, his wife had lost her job, and his

father had been helping them through a tough period. After his father died, he testified that his

mother also wanted to help them. Jesus Jr. admitted that some of his mother’s money was used

for the benefit of his own family, but he claimed that these were gifts from his parents. He

further testified his mother knew he was taking money out of the joint account and wanted him

to do so because of his family’s situation.

       According to Jesus Jr., he was not aware his mother suffered from dementia. He testified

that Mary, who worked for Otilia’s treating doctor, took care of Otilia’s medical care and that

Mary never told him about Otilia’s condition. He also testified that in 2007, at some point before

Mary was appointed Otilia’s guardian, Adult Protective Services got involved in Otilia’s case,

and the case worker told him that he was not keeping a proper accounting of Otilia’s bank

account. The caseworker told him that he needed to be more “formal” and should not commingle

funds. Jesus Jr. also testified that Mary had taken the approximate $6,000 left in Otilia’s bank

account and that he had nothing left of Otilia’s money.

       Jesus Jr. further testified about the family home. According to Jesus Jr., his father had

owned the family home before his marriage to Otilia and thus, the family home was his father’s

separate property. And, because his father did not have a will, he and his four siblings now



                                               -3-
                                                                                                    04-10-00616-CV


owned the house as his father’s heirs. He testified that Otilia signed a deed transferring all her

interest in the family home to him. However, under Texas intestate laws, Otilia had only a life-

estate interest in the home and no longer lived there, as she was living with Mary. Jesus Jr. also

testified that in keeping with his family’s “culture,” one of his step-sisters (the youngest of

Otilia’s daughters) now lived in the family home with her son and paid only $250 per month in

rent, which was below the rental value of the house in the open market. Finally, according to

Jesus Jr., his parents would not want him to pay back the money he took because it was not part

of their family culture to require repayment. At the hearing, copies of the bank statements from

the joint bank account were not available. At the end of the injunction hearing, the trial court

dissolved the TRO and denied the temporary injunction.

         A month later, on April 8, 2008, Jesus Jr.’s attorney sent Mary’s attorney copies of the

bank statements related to Jesus Jr. and Otilia’s joint bank account. Then, there was no activity in

the case for almost a year.

         On March 4, 2009, Mary’s current attorneys 2 filed in probate court an “Application for

Authority to Retain Counsel and to Enter into a Contingent Fee Contract.” On May 8, 2009, the

trial court granted the application. Then, on July 15, 2009, Mary’s current attorneys filed in

district court, not probate court, a “Verified Petition to Take a Deposition Before Suit,”

requesting authority to take presuit depositions of Jesus Jr. and Broadway National Bank. 3 On

July 23, 2009, Jesus Jr. filed in the district court a motion to transfer the case to the probate

court, and on August 21, 2009, the cause was transferred to the probate court. On September 18,


2
  The record does not reflect why Mary’s former attorney was no longer an attorney in this case.
3
  The record does not reflect why Mary’s current attorneys filed a petition in district court to take a “presuit”
deposition of Jesus Jr. when Mary had already filed a lawsuit in probate court against Jesus Jr. At oral argument, one
of Mary’s current attorneys admitted that she had been aware of the previous lawsuit filed by Mary against Jesus Jr.
in the probate court and the injunction hearing in that lawsuit. However, Mary’s current attorney claimed to have
been unaware of what specific documents had been filed or exchanged in that lawsuit because Mary’s previous
attorney had not given Mary his file.

                                                        -4-
                                                                                                       04-10-00616-CV


2009, the trial court signed an order allowing Mary to take the oral deposition of the corporate

representative of Broadway National Bank. The trial court also ordered that Mary was allowed to

take the oral deposition of Jesus Jr., but limited the scope of such deposition to the facts and

circumstances surrounding the signature cards relating to the joint account made the basis of the

suit. Mary’s current attorneys took the deposition of a representative from Broadway National

Bank. 4 However, they never deposed Jesus Jr.

           On February 16, 2010, even though she had already filed a petition against Jesus Jr.,

Mary filed another “original” petition against Jesus Jr., alleging conversion, theft, fraud,

constructive trust, and rescission. On March 12, 2010, Jesus Jr. filed an answer and a motion to

dismiss for want of prosecution. In his motion, Jesus Jr. emphasized that there had been no

action on the case for a year and a half, that Mary’s second “original” petition contained the

same allegations as her first one, and that Mary had made no attempt to depose him. On April 1,

2010, Mary responded to the motion to dismiss for want of prosecution, arguing that neither she

nor her attorneys were aware of what discovery had been conducted or what pleadings were filed

between January 2008 and January 2009 because Mary’s former attorney had failed to provide

any of the documents. Mary’s response also stated that her current attorneys had been unaware of

the previous lawsuit and that “accident and mistake” had led to the filing of the second

“Original” Petition, which they admitted should have been titled “First Amended Petition.” On

April 26, 2010, the trial court granted Jesus Jr.’s motion and dismissed Mary’s case for want of

prosecution without prejudice, specifically stating that “[a]ll litigation in this cause filed on or

prior to April 1, 2010, is dismissed without prejudice to refiling.”




4
    After taking the deposition, Mary’s attorneys determined that Otilia did not have a claim against the bank.

                                                           -5-
                                                                                                       04-10-00616-CV


         On April 5, 2010,5 Mary filed another original petition, alleging common law fraud,

statutory fraud, fraud by nondisclosure, and fraud in the inducement. In response, Jesus Jr. filed

an answer, which alleged the affirmative defense of limitations, and a motion for no-evidence

and traditional summary judgment. On May 12, 2010, Mary filed a motion to continue the

summary judgment hearing. She later also filed a response to the summary judgment motion. 6

On May 20, 2010, the trial court denied Mary’s motion for continuance. On July 22, 2010, the

trial court granted Jesus Jr.’s motion for no-evidence and traditional summary judgment. Mary

now appeals.

                                          MOTION FOR CONTINUANCE

         In her motion for continuance, Mary argued that the trial court should continue the

summary judgment hearing because an adequate time for discovery had not yet passed. She

emphasized in her motion that the case had been on file for only one month and that no discovery

had been conducted in the case. Mary argued that since filing the lawsuit on April 5, 2010, she

had not had the opportunity to depose Jesus Jr. or to send him discovery requests. Mary also

argued that in order to respond to Jesus Jr.’s summary judgment motion, she needed to “confer

with and obtain affidavits from Plaintiff’s expert, Julian R. Cantu, M.D. 7 and Mary Pena.” 8

         On May 19, 2010, at the hearing on the motion for continuance, Mary’s attorney argued

that additional time was needed to obtain testimony from Dr. Cantu about whether Otilia was

capable of transferring her interest in the family home to Jesus Jr. at the time she signed the deed

5
  A hearing was held on April 1st on the motion to dismiss, but there is no reporter’s record of the hearing. At the
motion to continue the summary judgment hearing, Mary’s attorney makes reference to the trial court dismissing
Mary’s case on April 1st. Thus, it appears the trial court orally granted Jesus Jr.’s motion to dismiss on April 1st, but
did not sign the order dismissing the case for want of prosecution until April 26, 2010, at which point the trial court
was aware that Mary had filed a new petition on April 5th.
6
  Although there is a reporter’s record of the hearing on the motion for continuance, there is no reporter’s record of
the summary judgment hearing, which was held much later.
7
  Dr. Cantu was Otilia’s treating doctor and Mary’s employer.
8
  Mary’s attorneys did not indicate in Mary’s motion for continuance why they would need additional time to obtain
their client’s affidavit.

                                                          -6-
                                                                                                   04-10-00616-CV


or whether she was capable of consenting to Jesus Jr. withdrawing money from their joint bank

account. Mary’s attorney then stated that she had requested the bank documents regarding the

joint account from Broadway Bank, but had not yet received anything. 9 The trial court did not

rule at the hearing, but the next day signed an order denying Mary’s motion to continue the

summary judgment hearing.

        In her first issue on appeal, Mary argues that the trial court abused its discretion in

denying her motion to continue the summary judgment hearing because an adequate time for

discovery had not passed as required under Texas Rule of Civil Procedure 166a(i). When a party

contends that it has not had an adequate opportunity for discovery before a summary judgment

hearing, it must file either an affidavit explaining the need for further discovery or a verified

motion for continuance. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996).

Here, Mary’s motion for continuance was verified by her attorney.

        We review the trial court’s decision to grant or deny a motion for continuance for abuse

of discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986); see also Tenneco, 925

S.W.2d at 647. A trial court abuses its discretion only when it acts in an unreasonable and

arbitrary manner, or when it acts without reference to any guiding rules and principles. Beaumont

Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). Thus, we may not reverse a trial court’s

ruling for an abuse of discretion merely because we may disagree with that decision. Id.

        The function of summary judgment is not the deprivation of a party’s right to a full

hearing on the merits of any real issue of fact, but rather to “eliminate patently unmeritorious

claims and untenable defenses.” Casso v. Brand, 776 S.W.2d 551, 555 (Tex. 1989) (quotation

omitted). Thus, under Texas Rule of Civil Procedure 166a(i), a party may not move for a no-

9
  The hearing on the motion for continuance was held on May 19, 2010. The record request to Broadway Bank was
filed in the district clerk’s office on May 20, 2010. And, the request indicates that it was sent to Broadway Bank on
May 18th, the day before the hearing.

                                                        -7-
                                                                                     04-10-00616-CV


evidence summary judgment until after an adequate time for discovery has passed. TEX. R. CIV.

P. 166a(i). Notably, Rule 166a(i) does not require that discovery must have been completed, but

rather that there was “adequate time.” McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex. App.—

Houston [14th Dist.] 2008, no pet.). The comment to rule 166a(i) provides that “[a] discovery

period set by pretrial order should be adequate opportunity for discovery unless there is a

showing to the contrary, and ordinarily a motion under paragraph (i) [a no-evidence motion]

would be permitted after the period but not before.” TEX. R. CIV. P. 166a(i) cmt. Unlike other

notes and comments in the rules of civil procedure, this comment was specifically “intended to

inform the construction and application of the rule.” TEX. R. CIV. P. 166a(i) cmt.

       Pointing to this language, Mary emphasizes she filed her lawsuit on April 5, 2010, and

Jesus Jr. filed his no-evidence motion for summary judgment soon thereafter on April 22, 2010.

She argues that a time period of seventeen days from when the lawsuit is filed does not constitute

adequate time. However, in so arguing, Mary completely disregards the time period the previous

lawsuit had been on file before it was dismissed for want of prosecution. Thus, the issue in this

case is whether the time period a previous lawsuit is pending before being dismissed for want of

prosecution, when that lawsuit is between the same parties and contains the same allegations,

should be considered in determining whether an adequate time for discovery has passed in the

subsequent lawsuit. We have found no case addressing this issue, and the parties have not

directed us to such a case.

       Generally, in considering whether the trial court permitted an adequate time for

discovery, we consider the following factors: (1) the nature of the case, (2) the nature of the

evidence necessary to controvert the no-evidence motion, (3) the length of time the case was

active, (4) the amount of time the no-evidence motion was on file, (5) whether the movant had



                                               -8-
                                                                                      04-10-00616-CV


requested stricter deadlines for discovery, (6) the amount of discovery that already had taken

place, and (7) whether the discovery deadlines in place were specific or vague. McInnis, 261

S.W.3d at 201. We review a trial court’s determination that there has been an adequate time for

discovery on a case-by-case basis, under an abuse-of-discretion standard. Id.

       1. The Nature of the Case and Evidence Needed to Defeat Motion

       This case is not of a nature that would seem to require extensive or complex discovery.

See Rest. Teams Int’l, Inc. v. MG Sec. Corp., 95 S.W.3d 336, 340 (Tex. App.—Dallas 2002, no

pet.). None of Mary’s claims would require more than minimal discovery to defeat a no-evidence

motion for summary judgment. See id. In fact, in her motion for continuance and at the hearing

on the motion, all Mary argued she needed to do to respond to the motion for summary judgment

was to take Jesus Jr.’s deposition, obtain an affidavit from Otilia’s doctor about Otilia’s medical

condition, authenticate the bank records from the joint bank account, and authenticate the deed

transferring Otilia’s interest in the family home to Jesus Jr.

       2. The Length of Time the Case was Active

       This factor, of course, depends on whether the time the previous case had been pending

should be considered in determining whether an adequate time for discovery had passed. Mary

argues that the time the previous case had been on file should not be considered, as the previous

case was dismissed without prejudice. However, whether a case is dismissed with or without

prejudice does not really go to the issue of whether there has been an adequate time for

discovery. A dismissal with prejudice is a final determination on the merits and prevents a party

from re-filing a case under the doctrines of res judicata or collateral-estoppel. Mossler v. Shields,

818 S.W.2d 752, 754 (Tex. 1991). Thus, the plaintiff can appeal the dismissal but cannot re-file

the same lawsuit unless the dismissal is reversed on appeal. See id. In contrast, a dismissal



                                                 -9-
                                                                                      04-10-00616-CV


without prejudice is not a final determination on the merits. Thus, if the statute of limitations has

not run, a case may be re-filed without appealing the order of dismissal. Webb v. Jorns, 488

S.W.2d 407, 409 (Tex. 1972). Here, however, whether a party has had an adequate time for

discovery is not related to the question of whether a case may be re-filed.

       Looking at the language of Rule 166a(i), the rule states that “[a]fter an adequate time for

discovery,” a party may move for a no-evidence motion for summary judgment. TEX. R. CIV. P.

166a(i). The rule does not explicitly state whether “adequate time” refers to only the instant suit

or whether it can refer to a previous lawsuit, between the same parties and involving the same

allegations, that has been dismissed for want of prosecution. Instead, it refers only to “adequate

time.” And, in this case, Mary clearly had “adequate time” to conduct discovery. Mary filed her

original petition in her original lawsuit on January 31, 2008. At the time Jesus Jr. moved to

dismiss her original lawsuit for want of prosecution, she had had over two years to conduct

discovery. And, at the time the trial court granted Jesus Jr.’s no-evidence motion for summary

judgment, Mary had had almost two-and-a-half years to conduct discovery.

       Mary argues that most of the time her previous lawsuit was pending should not count

because her previous attorney was derelict in his duty to prosecute her case. However, the

actions of an attorney, as his client’s agent, necessarily binds the client. See Gracey v. West, 422

S.W.2d 913, 916 (Tex. 1968) (holding that attorney’s negligence in failing to prosecute lawsuit

was not ground for setting aside judgment dismissing cause for want of prosecution because “as

long as the attorney-client relationship endures, with its corresponding legal effect of principal




                                                - 10 -
                                                                                                     04-10-00616-CV


and agent, the acts of one must necessarily bind the other as a general rule”). 10 Therefore, the

actions of her previous attorney are not considered in looking at how long her case was active.

And, Mary’s case was active for an extended period of time.

         3. The Length of Time the No-Evidence Motion was on File

         Jesus Jr. filed the no-evidence motion for summary judgment on April 22, 2010. The

summary judgment hearing occurred on July 20, 2010. Thus, the no-evidence motion for

summary judgment was on file for almost ninety days at the time of the summary judgment

hearing. Further, we note that Rule 166a(i) does not mandate a minimum period of time a case

must be pending before a motion may be filed, as long as there was adequate time for discovery.

Rest. Teams, 95 S.W.3d at 340; see TEX. R. CIV. P. 166a(i).

         4. Status of Discovery

         Mary argued in her motion for continuance that she needed time to depose Jesus Jr.,

retrieve bank records, prepare an affidavit from Otilia’s treating doctor, and prepare her own

affidavit. As noted above, because the time period Mary’s previous case was on file should be

considered in determining whether an adequate time for discovery had passed, Mary had more

than sufficient time to accomplish these tasks.

         Looking at the above factors, we hold that the trial court did not abuse its discretion in

denying Mary’s motion for continuance.




10
   We further note that although not briefed, Mary’s attorney raised the issue during oral argument that she was
prevented from fully deposing Jesus Jr. by the trial court’s presuit deposition order of September 18, 2009, which
limited the scope of any deposition of Jesus Jr. to the facts and circumstances surrounding the signature cards
relating to the account made the basis of the suit. However, there is nothing in the record to reflect that Mary was
prevented from fully taking Jesus Jr.’s deposition before the trial court’s order of September 18, 2009, nor is there
any indication that Mary ever went back to the trial court after September 18, 2009, to request that the scope of Jesus
Jr.’s deposition be expanded.

                                                        - 11 -
                                                                                    04-10-00616-CV


                        NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

          Under Rule 166a(i), a party may move for a no-evidence summary judgment on the

ground that there is no evidence of one or more essential elements of a claim or defense on

which an adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i). The trial

court must grant the motion unless the respondent produces summary judgment evidence raising

a genuine issue of material fact. Id. The respondent is “not required to marshal its proof; its

response need only point out evidence that raises a fact issue on the challenged elements.” TEX.

R. CIV. P. 166a(i) cmt. In reviewing a trial court’s order granting a no-evidence summary

judgment, we consider the evidence in the light most favorable to the respondent and disregard

all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51

(Tex. 2003). Thus, a no-evidence summary judgment is improperly granted if the respondent

brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact.

Id. at 751; see TEX. R. CIV. P. 166a(i). In determining if the respondent has brought forth more

than a scintilla of evidence, we consider whether the evidence would enable reasonable and fair-

minded jurors to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.

2008).

          In her live petition, Mary brought the following claims against Jesus Jr.: common law

fraud, fraud in the inducement, fraud by nondisclosure, and statutory fraud. She also requested

the creation of a constructive trust based on fraud. In his no-evidence motion for summary

judgment, Jesus Jr. argued that Mary had no-evidence to support specific elements of these

claims.




                                               - 12 -
                                                                                   04-10-00616-CV


       1. Common Law Fraud, Fraud in the Inducement, and Fraud by Nondisclosure

       To bring a claim for common law fraud, a plaintiff must show the following: (1) a

material misrepresentation was made; (2) the representation was false; (3) when the

representation was made, the speaker knew it was false or made it recklessly without any

knowledge of the truth and as a positive assertion; (4) the speaker made the representation with

the intent that the other party should act upon it; (5) the party acted in reliance on the

representation; and (6) the party thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d

749, 758 (Tex. 2001) (orig. proceeding). To bring a claim for fraud in the inducement, a plaintiff

must show the elements of fraud, see Balogh v. Ramos, 978 S.W.2d 696, 701 (Tex. App.—

Corpus Christi 1998, pet. denied), and must show that she has been fraudulently induced to enter

into a binding agreement. Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001) (“Without a

binding agreement, there is no detrimental reliance, and thus no fraudulent inducement claim.

That is, when a party has not incurred a contractual obligation, it has not been induced to do

anything.”).

       In his no-evidence motion for summary judgment, Jesus Jr. argued that Mary had no

evidence that (1) he made any sort of material misrepresentation to Otilia; (2) any representation

made by Jesus Jr. was false; (3) when any alleged misrepresentation was made, he knew it was

false; (4) he made any representation with the intent that Otilia act on it; (5) Otilia reasonably

relied on a representation made by Jesus Jr.; and (6) Otilia entered into a binding agreement

based on the false misrepresentation. With respect to fraud by nondisclosure, Jesus Jr. argued in

his no-evidence motion that Mary cannot show he concealed from or failed to disclose material

facts to Otilia. He emphasizes in his appellate brief that Otilia was aware of their financial




                                              - 13 -
                                                                                                     04-10-00616-CV


arrangements and that she had signed signature cards and account designation documents at the

bank.

         In her brief, Mary argues that she did present some evidence that Jesus Jr. concealed or

failed to disclose certain facts to Otilia. She points to Jesus Jr.’s testimony during the injunction

hearing where he testified that he used some of the money from the joint bank account for his

personal expenses because his wife was unemployed. However, Jesus Jr. also testified that his

mother consented to these withdrawals. Mary argues that Jesus Jr. should have known that Otilia

was unable to approve such withdrawals as she had been diagnosed with senile dementia. For

this proposition, Mary points to her own affidavit in which she affirms that “[i]n early 2002, Dr.

Julian R. Cantu diagnosed Mrs. Patlan with senile dementia.” 11 However, while this statement is

evidence that Dr. Cantu diagnosed Otilia with senile dementia, it is not evidence that Jesus Jr.

knew Otilia had been diagnosed with senile dementia. And, at the injunction hearing, Jesus Jr.

testified that he believed Otilia was capable of giving consent and that he did not know she had

been diagnosed with dementia. According to Jesus Jr., although he sometimes took Otilia to

doctor’s appointments, the only thing he knew “at the time was that, you know, she was under

medications as far as for blood pressure. Trying to think of — she was taking a lot of

medications but we were never told what everything was for. We were never told what the

situation was.” According to Jesus Jr., “Mary was the one [who] worked at the doctor’s office, so

she would oversee whatever Dr. Cantu said. So we relied on her to fill us in on whatever

11
   We note that Jesus Jr. filed written objections to Mary’s affidavit, arguing that it was based on hearsay and
speculation, and constituted improper expert testimony. However, there is nothing in the record to reflect that Jesus
Jr. obtained a ruling on his objections. Nevertheless, we note that Jesus Jr. did not need to object or obtain a ruling
on any conclusory statements contained in Mary’s affidavit because conclusory statements are insufficient to raise a
fact issue. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); see also Selz v. Friendly Chevrolet,
Ltd., 152 S.W.3d 833, 837 (Tex. App.—Dallas 2005, no pet.) (holding affidavit that is nothing more than a sworn
statement of allegations in a pleading is conclusory and insufficient to create a fact issue); Old Republic Sur. Co. v.
Bonham State Bank, 172 S.W.3d 210, 217 (Tex. App.—Texarkana 2005, no pet.) (explaining that “statements of
legal conclusions amount to little more than the witness choosing sides on the outcome of the case” and “affidavits
containing conclusory statements unsupported by facts are not competent summary judgment proof”).

                                                        - 14 -
                                                                                      04-10-00616-CV


situation was wrong with [Otilia].” When asked whether Mary had told him that Otilia had been

diagnosed with senile dementia, Jesus Jr. replied, “[S]he never told us.” As evidence that Jesus

Jr. knew his mother had senile dementia, Mary also points to Jesus Jr.’s testimony at the

injunction hearing that a case worker from Adult Protective Services told him that he needed to

be “more formal” with the joint bank account. However, Jesus Jr. testified that Adult Protective

Services became involved with his mother’s case right before Mary was appointed his mother’s

guardian in 2007. This is not evidence that relates to the time period at issue – 2005.

       With respect to her claim for fraud by nondisclosure, Mary also argues that Jesus Jr. had

a fiduciary duty to disclose material facts to Otilia and that by not disclosing all the money

transactions made by him for his own personal use, he committed fraud. In support of this

statement, Mary points to the copies of the bank records from the joint account. However, while

the bank records are evidence that transactions occurred; they are not evidence that Jesus Jr.

failed to disclose those transactions to Otilia. Jesus Jr. testified at the injunction hearing that

Otilia knew about the transactions. According to Jesus Jr., he was just handling the family

finances, like he had for his father, and his mother knew about it. Mary, once again, points to

Otilia having senile dementia, but as noted above, there is no evidence Jesus Jr. knew about her

senile dementia. Therefore, we hold that Mary did not bring forth more than a scintilla of

probative evidence to raise a genuine issue of material fact with respect to her claims for

common law fraud, fraud in the inducement, and fraud by nondisclosure.

       2. Statutory Fraud

       To bring a claim for statutory fraud, Mary must show the following: (1) the transaction

involved real estate; (2) Jesus Jr. made a false representation of a material fact or made a false

promise to do an act to Otilia, or benefited by not disclosing that a third party’s representation or



                                                - 15 -
                                                                                      04-10-00616-CV


promise was false; (3) the false representation was made for the purpose of inducing Otilia to

enter into a contract; (4) Otilia relied on the false representation or promise in entering into the

contract; and (5) the reliance caused Otilia injury. See TEX. BUS. & COM. CODE ANN. § 27.01

(West 2009) (titled “Fraud in Real Estate and Stock Transactions”); Fletcher v. Edwards, 26

S.W.3d 66, 77 (Tex. App.—Waco 2000, pet. denied) (“A plaintiff establishes a statutory

fraudulent inducement claim under section 27.01 of the Business and Commerce Code by

showing: a false representation of a material fact; made to induce a person to enter a contract;

and relied on by that person in entering the contract.”). The statutory cause of action differs from

the common law only in that to recover actual damages, it does not require proof that the

defendant made a material false representation knowing it to be false or made it recklessly as a

positive assertion without any knowledge of its truth. Fletcher, 26 S.W.3d at 77.

       In his no-evidence motion, Jesus Jr. argued that Mary cannot prove that he made a false

misrepresentation of fact to Otilia, or benefited by not disclosing a third party’s representation or

promise was false. Similarly, he argued that Mary cannot show that any representation made by

him was made for the purpose of inducing Otilia to enter into a real estate contract. He also

argued that Mary cannot show that Otilia relied on the false representation or promise by

entering into the contract. And, Jesus Jr. argued that Mary cannot show that Otilia reasonably

relied on a representation made by him, and that therefore there is no evidence that such reliance

caused injury. As evidence, Jesus Jr. attached the original warranty deed showing that the family

home was his father’s separate property. Thus, Jesus Jr. argued that in executing the deed to him,

all Otilia conveyed was a life estate interest, which she abandoned when she moved out of the

family home.




                                                - 16 -
                                                                                   04-10-00616-CV


         As evidence of the above elements, Mary once again points to Jesus Jr.’s testimony at the

temporary injunction hearing and her own affidavit. The issue again is whether Jesus Jr. knew

his mother was suffering from senile dementia and was thus somehow taking advantage of her

because he knew his mother was incapable of giving her consent. However, as noted above,

Mary failed to produce any evidence that at the time these transactions occurred, Jesus Jr. had

any knowledge that his mother suffered from senile dementia.

                                          CONCLUSION

         Because the trial court did not abuse its discretion in denying Mary’s motion to continue

the summary judgment hearing and because Mary failed to bring forth more than a scintilla of

probative evidence to raise a genuine issue of material fact, we affirm the judgment of the trial

court.


                                                  Karen Angelini, Justice




                                               - 17 -
