AFFIRM and Opinion Filed March 4, 2020




                                    S In The
                                Court of Appeals
                         Fifth District of Texas at Dallas

                               No. 05-19-00179-CV

                         THOMAS C. DAVIS, Appellant
                                     V.
                          L. LOUISE DAVIS, Appellee

               On Appeal from the 298th Judicial District Court
                            Dallas County, Texas
                    Trial Court Cause No. DC-16-13843

                         MEMORANDUM OPINION
                   Before Justices Molberg, Reichek, and Evans
                            Opinion by Justice Evans
      This is an appeal from a summary judgment granted in favor of appellee L.

Louise Davis. In two issues, appellant Thomas C. Davis asserts that the trial court

erred by granting summary judgment on Louise’s breach of contract claim because

the statute of limitations on that claim expired pursuant to: (1) Section 9.003 of the

Texas Family Code or (2) Section 16.004 of the Texas Civil Practice and Remedies

Code. We affirm.

                                 BACKGROUND

      Tom and Louise were married in 1988 and divorced in 2005. On July 13,

2005, Tom and Louise entered into an Agreement Incident to Divorce and each
received a fifty percent share in Lone Star Self Storage Allen – Ltd. (IRA

investment). On February 4, 2009, Tom emailed Louise that “[w]e have the Lone

Star self storage project in Allen under contract to sell. While the price might change

a little, I think that my IRA’s interest will get approximately $240,000, half of which

is yours and can be distributed to your IRA.”

      On November 6, 2012, Louise emailed Tom that she “was talking to Bill

Adams this morning and he said he mailed a check for $360,000 or so directly into

your IRA about 3 years ago when the investors got their money back from the

investment. I remember it being in an IRA but was wondering how and when I get

my half. How does that work?” Tom wrote back on November 6, 2012 that he did

not recall the facts that way and would look into it. Tom followed up in December

2012 that he still had not “found out where this distribution from Lone Star Self

Storage is” but stated he would “eventually track it down.”

      On March 20, 2014, Louise emailed Tom asking to meet about the “Lone Star

money.” In response, Tom admitted that “my 401K was distributed some money

from Lone Star” and he was going to “piece together what happened” and asked that

Louise “forgive [him] for this screw up.” On April 24, 2014, Tom emailed Louise

that he would “put some sort of a proposal together for you to look at. Whatever we

decide I owe you from the Lone Star distribution, I need to pay out over [sic] period

of time.”



                                         –2–
        On September 12, 2014, Louise received a check from Tom in the amount of

$5,000.     Louise and Tom continued to email back and forth in October and

November 2014 about the Lone Star money. On November 7, 2014, Louise received

a check for $5,000 from Tom with a note in the memo section that it was for the

“Lone Star Deal.” In March 2015, Tom and Louise exchanged emails about meeting

to discuss payment of the Lone Star deal. On April 13, 2015, Louise received a

check in the amount of $10,000 from Tom with a note in the memo section that it

was for a “distribution.” Tom and Louise continued to exchange emails about

payment in June and August 2015. Louise received additional payments from Tom

on August 27, 2015 ($5,000), October 20, 2015 ($5,000), and March 2, 2016

($5,000).

        On March 19, 2016, Louise received a check for $5,000 and a note stating as

follows: “I have enclosed a check for $5,000. According to my records this makes

$55,000 that I have paid you. I will pay you $5,000 a quarter until we agree the

obligation is fulfilled. I am not sure how much I owe you after taxes. I need to

figure it out.”1 Louise responded that the check was “not ‘a large part of the

distribution’ that you said you would send. And it’s $35,000 not $55,000, paid so

far.”




    1
     We note that the record reference containing this quote is partially incomplete as a page is missing
from the clerk’s record. However, as this statement is uncontested, we accept the facts as stated as true.
See TEX. R.. APP. P. 38.1(g).
                                                  –3–
         On October 21, 2016, Louise received her last check in the amount of $10,000

from Tom with a note in the memo section that it was for “repayment.”

         Louise filed her lawsuit on October 25, 2016, for the sum of $145,000 and

attorney’s fees.

                                            ANALYSIS

         A.      Standard of Review

         We review an order granting summary judgment de novo. Alexander v.

Wilmington Savings Fund Soc’y, 555 S.W.3d 297, 299 (Tex. App.—Dallas 2018, no

pet.). When we review a summary judgment in favor of a claimant, we determine

whether the claimant established every element of its claim as a matter of law. Id.

We consider the evidence in the light most favorable to the non-movant, indulge

every reasonable inference in favor of the non-movant, and resolve any doubts

against the movant. Id. When, as in this case, the summary judgment does not

specify the grounds on which it was granted, we affirm if any ground advanced in

the motion is meritorious. See Garza v. CTX Mortg. Co., LLC, 285 S.W.3d 919,

922–23 (Tex. App.—Dallas 2009, no pet.).

         B.      Statute of Limitations

         In his first issue, Tom argues that Louise’s claim is barred by the two-year

statute of limitations under section 9.003 of the Texas Family Code.2 Alternatively,


   2
       Section 9.003 provides as follows:


                                              –4–
in his second issue, Tom argues that Louise’s breach of contract claim is barred by

the four-year statute of limitations under section 16.004 of the Texas Civil Practice

and Remedies Code.3 We need not decide which applies4 because Tom’s conduct

renewed the limitations period within either limitation period.

         Texas law provides that partial payment of a debt or written acknowledgement

of a debt renews the statute of limitations. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.065 (“An acknowledgment of the justness of a claim that appears to be barred

by limitations is not admissible in evidence to defeat the law of limitations if made

after the time that the claim is due unless the acknowledgment is in writing and is

signed by the party to be charged.”); Parks v. Seybold, No. 05-13-00694-CV, 2015

WL 4481768, at *2 (Tex. App.—Dallas July 23, 2015, no pet.) (“A creditor may sue



         (a) A suit to enforce the division of tangible personal property in existence at the time of
         the decree of divorce or annulment must be filed before the second anniversary of the date
         the decree was signed or becomes final after appeal, whichever date is later, or the suit is
         barred.
         (b) A suit to enforce the division of future property not in existence at the time of the
         original decree must be filed before the second anniversary of the date the right to the
         property matures or accrues or the decree becomes final, whichever date is later, or the suit
         is barred.
TEX. FAM. CODE ANN. § 9.003.
   3
       Section 16.004 provides,
         A person must bring suit on the following actions not later than four years after the day the
         cause of action accrues: (1) specific performance of a contract for the conveyance of real
         property; (2) penalty of damages on the penal clause of a bond to convey real property; (3)
         debt; (4) fraud; or (5) breach of a fiduciary duty.
TEX. CIV. PRAC. & REM. CODE ANN. § 16.004.
   4
      See Chakrabarty v. Ganguly, 573 S.W.3d 413 (Tex. App.—Dallas 2019, no pet.) (en banc) (holding
funds-transfer obligation in agreement incident to divorce was not tangible personal property subject to
section 9.003 of the family code, overruling Long v. Long, 196 S.W.3d 460, 467–68 (Tex. App.—Dallas
2006, no pet.)).
                                                     –5–
to recover a debt otherwise barred by limitations if the debtor has acknowledged the

debt in writing.”); Tri-State Mortgage Co. v. Coronado Fin. I P’ship, No. 08-99-

00087-CV, 2001 WL 225933, at *5 (Tex. App.—El Paso Mar. 8, 2001, no pet.)

(“Under both Texas and federal law, partial payment of a debt or written

acknowledgment of a debt renews the statute of limitations.”). When a creditor

acknowledges a debt, the law implies a promise to pay the debt and the debtor may

sue for breach of that promise. Parks, 2015 WL 4481768, at *2. Whether a writing

constitutes an acknowledgement of debt is a question of law, but whether an

acknowledgement refers to the particular debt sued on is a question of fact. See

DeRoeck v. DHM Ventures, LLC, 576 S.W.3d 875, 877–78 (Tex. App.—Austin

2019, no pet.). Texas courts have held that a check can be an acknowledgement of

debt. Id. at 878.

      As described above, the summary judgment evidence includes multiple email

communications, written notes and checks exchanged between Louise and Tom.

Tom conceded in his correspondence with Louise that he owed a debt comprised of

her portion of the Lone Star deal and expressed his willingness to pay it over time.

For example, Tom emailed Louise “[w]hatever we decide I owe you from the Lone

Star distribution, I need to pay out over [sic] period of time.” In addition, Tom

directly referenced the debt owed to Louise on the checks written to Louise. By

check dated November 7, 2014, Tom sent Louise a check in the amount of $5,000

for the “Lone Star Deal.” Tom also sent Louise a check dated October 21, 2016 in
                                        –6–
the amount of $10,000 for “repayment.” This last check from Tom to Louise in the

amount of $10,000 was written only four days prior to the filing of this lawsuit.

These checks and communications—which were in writing, signed by Tom, and

referenced the debt at issue—met the requirements of a written acknowledgment.

See Parks, 2015 WL 4481768, at *3. As these acknowledgments occurred less than

two years prior to the filing of this lawsuit, we conclude that neither the two-year

nor the four-year statute of limitations could bar Louise’s breach of contract claim.

See Parks, 2015 WL 4481768, at *2; Tri-State Mortgage Co., 2001 WL 225933, at

*5. Accordingly, we overrule both of Tom’s issues.

                                 CONCLUSION

      We affirm the judgment of the trial court as to the granting of Louise’s motion

for summary judgment on the breach of contract claim.




                                           /David Evans/
                                           DAVID EVANS
                                           JUSTICE


190179F.P05




                                        –7–
                                    S
                            Court of Appeals
                     Fifth District of Texas at Dallas
                                   JUDGMENT

THOMAS C. DAVIS, Appellant                     On Appeal from the 298th Judicial
                                               District Court, Dallas County, Texas
No. 05-19-00179-CV           V.                Trial Court Cause No. DC-16-13843.
                                               Opinion delivered by Justice Evans.
L. LOUISE DAVIS, Appellee                      Justices Molberg and Reichek
                                               participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

      It is ORDERED that appellee L. LOUISE DAVIS recover her costs of this
appeal from appellant THOMAS C. DAVIS.


Judgment entered March 4, 2020.




                                         –8–
