     Case: 14-10671      Document: 00512829906         Page: 1    Date Filed: 11/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals

                                    No. 14-10671
                                                                                 Fifth Circuit

                                                                               FILED
                                  Summary Calendar                      November 7, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
SHARLEEN O. JEANBAPTISTE,

              Plaintiff–Appellant

v.

WELLS FARGO BANK, N.A.,

              Defendant–Appellee



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:14-CV-264


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM:*
       Sharleen Jeanbaptiste challenges the district court’s grant of Wells
Fargo Bank’s (Wells Fargo) motion to dismiss on the grounds that: (1) her
claims are not time-barred; (2) she was not granted an opportunity to amend
her complaint; and (3) she stated claims upon which relief could be granted.
As her claims are barred by statutes of limitation, we affirm.



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                             I
      Jeanbaptiste bought a home during the summer of 2000 with a mortgage
loan. Wells Fargo later became the mortgage servicer on the loan. After
Jeanbaptiste began struggling financially, she and the bank entered into two
successive loan modification agreements; she continued to make payments
during this time. In 2008, Wells Fargo informed her that it was unable modify
the loan a third time and advised her to contact the bank to “discuss [her]
options.” In December of that year, she temporarily moved to Louisiana “to
care for her terminally-ill mother” and, while there, continued efforts to modify
her loan. Despite these efforts, in June of 2009, Wells Fargo foreclosed on
Jeanbaptiste’s home. In October, a friend who “happened to be driving by and
observed someone removing items from the residence . . . immediately
contacted Ms. Jeanbaptiste to inform her.” Two years later, in December of
2011, she received notification from the Board of Governors of the Federal
Reserve that it was reviewing whether Wells Fargo had improperly foreclosed
on her home. She filed suit in state court against Wells Fargo on December
18, 2013, alleging breach of contract, wrongful foreclosure, civil theft under the
Texas Theft Liability Act (TTLA), 1 and conversion. Wells Fargo removed the
case to federal court and filed a motion to dismiss. The magistrate judge
recommended dismissal because Jeanbaptiste’s complaint was time-barred
and failed to state a claim upon which relief could be granted. The district
judge adopted these recommendations, and we now affirm on grounds that the
claims are barred under the relevant statutes of limitation.




      1   TEX. CIV. PRAC. & REM. CODES ANN. § 134.003, .005 (West 2013).
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                                                II
        We review de novo a district court’s grant of a motion to dismiss under
Rule 12(b)(6). 2 We accept “all well-pleaded facts as true, viewing them in the
light most favorable to the plaintiff.” 3
        A federal court exercising diversity jurisdiction must apply appropriate
state law, including state statutes of limitation, to resolve a dispute. 4 To
determine state law, a federal court “look[s] to the final decisions of the state’s
highest court.” 5 Where no such precedent is available, a federal court must
employ state methodology to make an “Erie guess” to “determine, in its best
judgment, how the highest court of the state would resolve the issue if
presented with the same case.” 6 It is undisputed that Texas law applies in this
case.
                                                III
        In Texas, under the “injury rule,” unless an exception applies, “a cause
of action generally accrues when a wrongful act causes a legal injury regardless
of when the plaintiff discovers the injury or if all resulting damages have not
yet occurred.” 7 A four-year statute of limitations applies to breach of contract 8




        2   In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007).
        3   Id. (citations and internal quotation marks omitted).
        Guar. Trust Co. of N.Y. v. York, 326 U.S. 99, 111 (1945); Erie R.R. Co. v. Tompkins,
        4

304 U.S. 64, 78-79 (1938).
        5Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir.
2014) (quoting Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th
Cir. 2003)).
        6   Id.
        7Holland v. Thompson, 338 S.W.3d 586, 593 (Tex. App.—El Paso 2010, pet. denied)
(citing Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998)).
        8   TEX. CIV. PRAC. & REM. CODE ANN. § 16.004 (West 2013).
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                                         No. 14-10671
and wrongful foreclosure 9 claims. A two-year limitations period applies to
conversion 10 and TTLA 11 claims. Thus, as Jeanbaptiste’s injuries occurred at
the latest in June of 2009, when Wells Fargo foreclosed, and she did not bring
her claim until December of 2013, all of her claims are time-barred.
       Jeanbaptiste nevertheless contends that the “discovery rule,” a narrow
exception to the injury rule, tolled the statute of limitations such that her suit
can move forward. We disagree.
       The discovery rule exception applies only if:
       the nature of the plaintiff’s injury is both inherently
       undiscoverable and objectively verifiable. An injury is inherently
       undiscoverable if it is, by its nature, unlikely to be discovered
       within the prescribed limitations period despite due diligence.
       “Inherently discoverable” does not mean that a particular plaintiff
       did not discover his or her particular injury within the applicable
       limitations period. Instead, we determine whether an injury is
       inherently undiscoverable on a categorical basis because such an
       approach brings predictability and consistency to the
       jurisprudence. 12
The discovery rule does not apply to breach of contract 13 or conversion 14 claims.
While the Supreme Court of Texas has not yet addressed the application of the
discovery rule to wrongful foreclosure and TTLA claims, Texas courts of appeal


       9 Gonzales v. Lockwood Lumber Co., 668 S.W.2d 813, 815 (Tex. App.—Houston [14th
dist.] 1984, writ ref’d n.r.e.) (citing Int’l Printing Pressmen and Assistants’ Union of N. Am.
v. Smith, 198 S.W.2d 729, 735 (Tex. 1946)).
       10   TEX. CIV. PRAC. & REM. § 16.003(a).
       11 Id. § 134.003, .005; see Howard v. Sony Music BMG Entm’t, 293 F. App’x 350, 352
(5th Cir. 2008) (per curiam).
       12Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734 (Tex. 2001) (citations and
internal quotation marks omitted); see Priester v. JP Morgan Chase Bank, N.A., 708 F.3d
667, 675 (5th Cir. 2013).
       13   Via Net v. TIG Ins. Co., 211 S.W.3d 310, 315 (Tex. 2006) (per curiam).
       14Rogers v. Ricane Enters., Inc., 930 S.W.2d 157, 167 (Tex. App.—Amarillo 1996, writ
denied), cited with approval in HECI Exploration Co. v. Neel, 982 S.W.2d 881, 888 (Tex.
1998).
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                                        No. 14-10671
have uniformly refused to apply the discovery rule to them. 15                   Accordingly,
the district court did not err in dismissing Jeanbaptiste’s suit with prejudice
because her claims are time-barred.
                                      *        *        *
       For the foregoing reasons, the judgment of the district court is
AFFIRMED.




       15 E.g., Trunkhill Capital, Inc. v. Jansma, 905 S.W.2d 464, 468 (Tex. App.–—Waco
1995, writ denied) (“The creditor’s cause of action for any deficiency exists on the date of
foreclosure.”); Nabelek v. Bradford, No. 14-01-00240-CV, 2002 WL 1438662, at *3 & n.3, *5
(Tex. App.–—Houston Aug. 22, 2002) (“While it is perhaps probable that a reasonably diligent
person whose property had been seized would not know of his injury as of [the date of seizure],
we cannot say that he would continue to remain unaware of that failure for a period of two
years thereafter.”); see also Howard v. Sony BMG Music Entm’t, No. H-06-3133-CV, 2007 WL
2537865, at *3-4 (S.D. Tex. Aug. 31, 2007), aff’d, 293 F. App’x 350 (5th Cir. 2008) (per curiam).
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