Opinion issued April 27, 2017




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                          ————————————
                              NO. 01-16-00469-CV
                           ———————————
  JERRY D. CHRISTERSON AND MYRTLE CHRISTERSON, Appellants
                            V.
          GORDON W. SPEER, LENORA SPEER, KEVIN SPEER,
                   AND ED PICKETT, Appellees


                   On Appeal from the 344th District Court
                         Chambers County, Texas
                      Trial Court Cause No. CV29050

                         MEMORANDUM OPINION

      In this appeal from a summary judgment, we determine whether venue was

proper and whether the statute of limitations bars the buyers’ claims for fraud and

deceptive trade practices brought against the sellers, who financed the buyers’

purchase of their home. The buyers, Jerry and Myrtle Christerson, bought the home
                                         1
from the sellers, Gordon and Lenora Speer, in 2000. The Speers loaned the

Christersons $250,000 to finance the Christersons’ purchase. In 2014, the Speers

notified the Christersons that they owed outstanding interest on the note and began

foreclosure proceedings. Before the foreclosure took place, the Christersons sold the

home, and they used the proceeds to pay off the outstanding debt.

      Later that year, the Christersons sued the Speers in Harris County District

Court for fraud, breach of contract, and violations of the Texas Deceptive Trade

Practices Act, the federal Truth in Lending Act, and the federal Racketeer Influenced

and Corrupt Organizations Act. The Christersons also named Kevin Speer, who is

the Speers’ son and who acted as the real estate broker in the sale, and Ed Pickett,

the Christerson’s attorney, as defendants.

      Because the property is located in Chambers County, and the sale took place

in Chambers County, the seller parties moved to change venue from Harris County

to Chambers County. The Harris County District Court granted the motion and

transferred the case to Chambers County. After proceeding in Chambers County,

the seller parties moved for summary judgment, which the trial court granted as to

all of the Christersons’ claims.

      On appeal, the Christersons challenge the transfer of venue and contend that

fact issues preclude summary judgment. Because we conclude that the trial court




                                             2
properly transferred venue and that the Christersons’ claims against the seller parties

are barred by the applicable statutes of limitations, we affirm.

                                 BACKGROUND
      Kevin Speer, a licensed real estate broker and agent, agreed to help his parents

sell their home. In early 2000, the Christersons saw a “For Sale” sign in front of the

Speers’ home and called Kevin, who was the listed real estate broker.

      Jerry Christerson met with Kevin and Gordon Speer regarding the property.

Jerry told the Speers that he could afford to buy the property if he could pay $1,450

per month for 30 years. The Speers responded that they would try to arrange

financing according to the Christersons’ wishes.

      The parties ultimately agreed on a sales price of $275,000. The Speers loaned

$250,000—all but $25,000 of the sales price—to the Christersons as seller financing.

Kevin drafted an earnest money contract, using the form required by the Texas Real

Estate Commission (TREC). In a seller financing addendum, the earnest money

contract included the terms and conditions for the loan.

      Section 4D of the earnest money contract describes the financing agreement

as “[a] promissory note from Buyer to Seller of $250,000.00, bearing 8.000%

interest per annum, secured by vendor’s and deed of trust liens, in accordance with

the terms and conditions set forth in the attached TREC seller financing addendum.”

The seller financing addendum declares that the “Note shall be payable, [i]n monthly


                                          3
installments of $1,450.00 including interest beginning 30 days after the date of the

Note and continuing at monthly intervals thereafter for 30 years when the entire

balance of the Note shall be due and payable.”

      A $250,000 note at 8% interest per annum is not discharged with monthly

payments of $1,450 over 30 years. Under the “special provisions” section, the

earnest money contract states: “NOTICE: The Seller Financed Note will negatively

amortize based on a monthly payment of $1,450.”

      After the parties signed the earnest money contract, the Speers asked their

lawyer, Ed Pickett, to draft the closing documents, including a deed of trust and a

credit sale disclosure. The deed of trust, executed on May 13, 2000, provided for

monthly payments of $1,450 and interim catch-up payments every 10 years:

      A.    359 equal consecutive payments of $1,450 for 359 months;

      B.     A payment due on July 1, 2010 for all accrued, unpaid interest to
      date “together with sufficient payment of principal to reduce the unpaid
      principal balance on such date to that which would have existed had
      this note been amortized with timely full amortization monthly
      installments of $1834.41 per month;”

      C.     A payment due on July 1, 2020 for all accrued, unpaid interest to
      date, “together with sufficient payment of principal to reduce the unpaid
      principal balance on such date to that which would have existed had
      this note been amortized with timely full amortization monthly
      installments of $1834.41 per month.”

      D.    All unpaid, accrued interest and unpaid principal shall be due and
      payable on the final maturity date of April 1, 2030.



                                         4
The accompanying credit sale disclosure notified the Christersons of the 8% annual

percentage rate and the total finance charge of $410,387.60. It stated that the

payment schedule was $1,450 for 359 months, due on the first day of each month.

        The Christersons and the Speers closed the real estate transaction on May 16,

2000.

        Following the closing, the Christersons began making timely monthly

payments of $1,450. In August of 2013, the Speers notified the Christersons that a

catch-up payment of approximately $46,000 in unpaid principal and interest was due

on the loan. The Christersons did not pay that amount, but continued to make the

regular $1,450 monthly payments.

        In January of 2014, the Speers began refusing the Christersons’ monthly

payments and initiated foreclosure proceedings. The Christersons sold the home

before foreclosure could occur and with the proceeds from the sale, they paid the

amount outstanding on the Speers’ loan.

        The Christersons seek recovery for the Speers’ alleged fraud and violations of

consumer protection acts. The gravamen of the Christersens’ complaint is that the

Speers represented that $1,450 would cover the accrued interest and principal

payments on the loan when in fact it did not, thus triggering the catch-up payments.




                                           5
                                   DISCUSSION

      The Christersons challenge the Harris County district court’s transfer of venue

to Chambers County, contending that venue was proper in Harris County. The

Christersons also challenge the Chambers County district court’s summary judgment

ruling, contending that their claims are not barred by the applicable statutes of

limitations because they did not accrue until the Speers demanded a catch-up

payment and that material issues of fact exist for each of their causes of action.

I.    Venue

      We first address the Christersons’ challenge to venue in Chambers County,

because an improper venue decision requires reversal of the judgment and remand

for a new trial. TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(b) (West 2017); see

Airvantage L.L.C. v. TBAN Props., #1, L.T.D., 269 S.W.3d 254, 257 (Tex. App.—

Dallas 2008, no pet.).

      A.     Standard of review and applicable law

      An appellate court reviews a trial court’s denial of a motion to transfer venue

de novo. Killeen v. Lighthouse Elec. Contractors, L.P., 248 S.W.3d 343, 347 (Tex.

App.—San Antonio 2007, pet. denied) (citing Wilson v. Tex. Parks & Wildlife Dep’t,

886 S.W.2d 259, 260–62 (Tex. 1994)). In deciding whether the trial court properly

determined venue, we consider the entire record. TEX. CIV. PRAC. & REM. CODE

§ 15.064(b); see also Wilson, 886 S.W.2d at 261–62.


                                          6
      Venue may be proper in more than one county under the venue rules. See,

e.g., GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex. 1998).

Generally, courts will not disturb a plaintiff’s choice of venue as long as the suit is

initially filed in a county of proper venue. Hiles v. Arnie & Co., P.C., 402 S.W.3d

820, 825 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); In re Henry, 274

S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).

      A trial court must consider as true all venue facts set forth in the plaintiff’s

pleading, unless an adverse party specifically denies those facts. See TEX. R. CIV. P.

87(3)(a). Once the adverse party specifically denies venue facts, the plaintiff must

then respond with prima facie proof for each challenged venue fact. Id. “Prima facie

proof is made when the venue facts are properly pleaded and an affidavit, and any

duly proved attachments to the affidavit, are filed fully and specifically setting forth

the facts supporting such pleading.” Id. This prima facie proof is not subject to

rebuttal, cross-examination, impeachment, or disproof. Henry, 274 S.W.3d at 190;

Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 678 (Tex. App.—

Austin 2003, no pet.). On appeal, the trial court’s determination that venue is proper

in a particular county will be upheld if there is any probative evidence supporting

venue in the county of suit. Chiriboga, 96 S.W.3d at 678 (citing Bonham State Bank

v. Beadle, 907 S.W.2d 465, 471 (Tex. 1995)).




                                           7
      Section 15.002(a) of the Civil Practice and Remedies Code provides that all

lawsuits shall be brought:

      (1) in the county in which all or a substantial part of the events or
      omissions giving rise to the claim occurred;
      (2) in the county of defendant’s residence at the time the cause of action
      accrued if defendant is a natural person;
      (3) in the county of the defendant’s principal office in this state, if the
      defendant is not a natural person; or
      (4) if Subdivisions (1), (2), and (3) do not apply, in the county in which
      the plaintiff resided at the time of the accrual of the cause of action.

CIV. PRAC. & REM. CODE § 15.002(a). The Christersons rely on the first venue

provision, contending that they adduced prima facie evidence that Harris County is

a county in which all or a substantial part of the events or omissions giving rise to

the claim occurred.

      B.     Analysis

      The Christersons allege that “events relating to the foreclosure and the

subsequent injuries,” including negotiations over telephone and email, the sale of

the home, and the final payment of the outstanding loan, originated in Harris County.

      To support these contentions, Jerry Christerson averred in his affidavit that he

and his wife had moved to Harris County after the Speers demanded payment on the

note. They received the foreclosure notice in Harris County, and they sold the home

to a third party in a closing that took place at a title company in Harris County.




                                          8
          The Christersons’ receipt of notices regarding foreclosure and sale of the

    home to a third party in Harris County, however, do not constitute events or

    omissions giving rise to their claims against the sellers. The undisputed venue

    facts are that the financing transaction that forms the basis of the Christersons’

    complaint took place in Chambers County, in connection with a purchase of real

    property located in Chambers County. The closing on the property, transferring

    its ownership from the Speers to the Christersons, took place in Chambers County.

    The negotiations concerning the financing and sale also took place in Chambers

    County. Thus, the alleged conduct underlying the Christersons’ fraud and

    misrepresentation claims occurred in Chambers County. None of the sellers is

    alleged to have committed or performed any act or omission in Harris County

    relating to the Christersons’ claims. We hold that the trial court properly granted

    the sellers’ motion to transfer venue to Chambers County.

II.     Summary Judgment

        The Christersons contest all of the summary-judgment grounds granted on

their state law claims. 1 We affirm a summary judgment if any theory advanced in

the sellers’ summary-judgment motion is meritorious. See Joe v. Two Thirty Nine

Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). Among other grounds, the sellers


1
        The Christersons do not brief any claim of error concerning the trial court’s
        summary judgment on their federal claims for violations of the Truth in Lending
        Act, Regulation Z, or under RICO. See TEX. R. APP. P. 38.1(i).
                                            9
moved for summary judgment based on the applicable statutes of limitations. We

address this ground because it is dispositive of the appeal. See id.; Crockett Cty v.

Klassen Energy, Inc., 463 S.W.3d 908, 910 n.1 (Tex. App.—El Paso 2015, no pet.)

(citing TEX. R. APP. P. 47.1).

      A.     Standard of review and applicable law

      A defendant is entitled to summary judgment on an affirmative defense if it

conclusively proves all the elements of the affirmative defense. Rhône–Poulenc,

Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see also City of Houston v. Clear

Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). A defendant that seeks

summary judgment on the basis of limitations must conclusively prove when the

cause of action accrued and, if the plaintiff has pleaded the discovery rule or another

defensive theory, conclusively negate its application. Pustejovsky v. Rapid-Am.

Corp., 35 S.W.3d 643, 646 (Tex. 2000); KPMG Peat Marwick v. Harrison Cty.

Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If, as here, the summary

judgment does not specify the grounds on which it was granted, the appealing party

must demonstrate on appeal that none of the proposed grounds is sufficient to

support the judgment. Rogers v. Ricane Enters., 772 S.W.2d 76, 79 (Tex. 1989).

      All of the Christersons’ claims are subject to either a two- or four-year statute

of limitations. See CIV. PRAC. & REM. CODE § 16.004(a)(4) (West 2002) (four-year

statute of limitations for fraud); Id. § 16.004(a)(5) (four-year statute of limitations


                                          10
for breach of fiduciary duty); TEX. BUS. & COM. CODE ANN. § 17.565 (West 2011)

(two-year statute of limitations under DTPA); Barker v. Eckman, 213 S.W.3d 306,

309 (Tex. 2006) (four-year residual statute of limitations set forth in section 16.051

of the Civil Practice and Remedies Code applies to breach-of-contract claims).

      B.     Analysis

      In their summary-judgment motion, the sellers contended that the

Christersons’ claims accrued when the parties closed on the sale and financing,

approximately 14 years before their suit was filed. See Via Net v. TIG Ins. Co., 211

S.W.3d 310, 314 (Tex. 2006) (explaining that breach of contract claim accrues when

contract is breached). The Christersons responded by pleading the discovery rule,

asserting that their claims did not accrue until August 2013, when they received the

Speers’ letter demanding the first catch-up payment.

      The Christersons arrive at the August 2013 accrual date under three defensive

theories. First, they contend that the Speers fraudulently concealed the fact that the

financing agreement obligated the Christersons to make catch-up payments in 10-

year increments over the life of the loan because the catch-up payments were not

included in the earnest money contract. Second, the Christersons claim that the

discovery rule tolled the statute of limitations until they discovered the injury

resulting from the Speers’ wrongful acts and they did not discover their injury until

the demand for catch-up payments. Third, they claim that, under a continuous-tort


                                         11
or continuous-breach theory, the accrual date revived each time the Speers accepted

the Christersons’ monthly payments of $1,450.

      1. The loan documents, signed in May 2000, disclose the fact that
         $1,450 in monthly payments does not fully satisfy the loan.

      For limitations purposes, “a cause of action accrues when a wrongful act

causes some legal injury.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). A “legal

injury” occurs when facts come into existence that authorize a party to seek a judicial

remedy. Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003)

(citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507,

514 (Tex. 1998)). Accrual occurs “even if the fact of injury is not discovered until

later, and even if all resulting damages have not yet occurred.” S.V., 933 S.W.2d at

4. The determination of the date on which a cause of action accrued is typically a

question of law. Villarreal v. Wells Fargo Brokerage Servs., LLC, 315 S.W.3d 109,

117 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Provident Life, 128

S.W.3d at 221).

      The closing documents, and in particular the deed of trust, placed the

Christersons on notice that the terms of the loan required more than 359 monthly

payments of $1,450 to fully amortize the outstanding loan. The documents that the

Christersons signed at closing include a warranty deed with vendor’s lien, a deed of

trust, and a credit sale disclosure. The warranty deed recites that the consideration

includes
                                          12
        [T]he . . . sum of [250,000.00], secured to be paid as evidenced by one
        certain Vendor’s Lien Promissory Note . . . from Grantees herein to the
        order of Grantors herein in the principal amount of [$250,000.00],
        bearing interest from date at the rate of [8%] per annum on the principal
        balance from time to time remaining unpaid, said interest being payable
        monthly as it accrues . . . .

        The terms set forth in the deed of trust obligate the Christersons to pay the

loan “[i]n [359] equal consecutive monthly installments of [$1,450.00] each,

including accrued interest.” It further requires the Christersons to make three

additional catch-up payments—in 2010 and 2020, respectively—of

        all accrued, unpaid interest [from the prior 10-year period], together
        with sufficient payment of principal to reduce the unpaid principal
        balance on such date to that which would have existed had this note
        been amortized with timely full amortization monthly installments of
        $1,834.41 per month.

On the final maturity date in 2030, the Christersons were to pay “[a]ll unpaid,

accrued interest and unpaid principal.”

        The credit sale disclosure, which the Christersons also received at closing, sets

forth the loan’s terms as follows:

 ANNUAL               FINANCE            AMOUNT            TOTAL            TOTAL SALE
 PERCENTAGE           CHARGE             FINANCED          AMOUNT OF        PRICE
 RATE                                                      PAYMENTS
                      The dollar         The amount of     The amount you   The total cost of
 The cost of your     amount the         credit provided   will have paid   your purchase on
 credit at a yearly   credit will cost   to you or on      after you have   credit, including
 rate.                you.               your behalf.      made all         your down
                                                           payments as      payment of
                                                           scheduled.       $25,000.00.

 8.0%                 $410,387.60        $250,000.00       $660,387.60      $275,000.00



                                                13
Below these terms, the disclosure states that “[y]our payment schedule will be” 359

payments of $1,450.00, due on the first day of each month. The schedule cautions

that, “The note payment schedule results in negative amortization which must be

corrected every ten (10) years of the note term.”

      These loan document provisions, taken together, notified the Christersons that

the 359 payments of $1,450 per month would not fully satisfy their loan obligation

at the end of 30 years. Texas adheres to the longstanding rule that, absent proof of

mental incapacity, a party who signs a contract is presumed to have read it and

understood it. Cosgrove v. Cade, 468 S.W.3d 32, 34–35 (Tex. 2015) (declaring that

party who signs deed is presumed, as matter of law, to have immediate knowledge

of omissions and mistakes in deed). The Christersons therefore are charged, as a

matter of law, with knowing and understanding the contents of the deed and other

closing documents upon their signing. See id. at 37. Because the law presumes that

the Christersons read and understood the closing documents, as a matter of law, they

knew or should have known when they executed those documents of any

discrepancy between the terms of the loan as they understood them and the terms set

forth in the closing documents. 2


2
      In their reply brief, the Christersons, citing T.O. Stanley Boot Co. v. Bank of El Paso,
      847 S.W.2d 218 (Tex. 1992), claim that the deed of trust lacks the specificity
      required to form a binding agreement because it mentions neither the amount
      financed nor the interest rate for the loan. A written contract, however, may be
      comprised of multiple documents. See Fort Worth Indep. Sch. Dist. v. City of Fort
                                             14
      The loan document disclosure negates application of the discovery rule in this

case as a basis for deferring accrual of the limitations period beyond the closing date.

Under the discovery rule, accrual is deferred when “the nature of the injury incurred

is inherently undiscoverable and the evidence of injury is objectively verifiable.”

S.V., 933 S.W.2d at 6 (quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d

453, 456 (Tex. 1996)); see also BUS. & COM. CODE § 17.565 (statutorily

incorporating discovery rule by allowing consumer to bring DTPA claim “within

two years after the consumer discovered or in the exercise of reasonable diligence

should have discovered the occurrence of the false, misleading, or deceptive act or

practice”).

      For claims for breach of contract, “diligent contracting parties should

generally discover any breach during the relatively long four-year limitations period

provided for such claims.’” Clear Lake Ctr., L.P. v. Garden Ridge, L.P., 416 S.W.3d

527, 543 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (quoting Via Net, 211

S.W.3d at 315). Similarly, when a party has had a reasonable opportunity to review




      Worth, 22 S.W.3d 831, 840 (Tex. 2000)). The other documents executed at closing,
      including the warranty deed with vendor’s lien and the credit sale disclosure,
      identify the amount financed and the interest rate that applies to the loan, and thus
      supply the terms missing from the deed of trust. We construe these documents
      together and conclude that they contain sufficient specificity in the material terms
      necessary to notify the Christersons of their repayment obligations. See id.
      (explaining that court may construe multiple documents as if they were part of
      single, unified agreement).
                                           15
a contract’s terms before signing the contract, the party may not avoid those terms

by claiming fraudulent inducement. See Nat’l Prop. Holdings, L.P. v. Westergren,

453 S.W.3d 419, 424 (Tex. 2015) (rejecting plaintiff’s claim that defendants

fraudulently induced him to sign written release where plaintiff explained that he did

not read release he was signing because he was “in a hurry” and did not have his

reading glasses with him); In re Int’l Profit Assocs., Inc., 286 S.W.3d 921, 923 (Tex.

2009) (where parties read and had opportunity to discuss contracts before signing,

defendant’s failure to separately disclose forum-selection clauses did not constitute

evidence that defendant fraudulently induced plaintiff).

      2. Under the Texas Supreme Court’s decision in Cosgrove v. Cade,
         the Speers’ demand for payment did not revive the accrual date.

      The Christersons also claim that the Speers’ demands in 2013 and 2014 that

the Christersons increase their payments under threat of foreclosure constitute

separate breaches of the loan agreement and revive their claims. The Texas Supreme

Court, however, rejected a similar assertion in Cosgrove.

      In Cosgrove, the parties executed a deed that failed to reflect their agreement

that the sellers would retain all mineral rights to the property. See 468 S.W.3d at 35.

When the sellers discovered the omission four years later, they asked the buyer to

execute a correction deed, but the buyer refused. Id. at 35. The sellers sued, seeking

reformation of the deed and damages for breach of contract, civil theft, and tortious

interference with contract, among other claims. Id. Because more than four years
                                          16
had passed since execution of the original deed, the buyer moved for summary

judgment on limitations. Id. The sellers responded that their causes of action did

not accrue until the buyer refused to execute the correction deed. Id. at 39.

      The Texas Supreme Court rejected the contention that the later refusal to

reform the deed delayed the accrual date for limitation purposes. Id. To hold

otherwise, the Court observed, “would circumvent the statute of limitations by

allowing an open-ended breach of contract claim” that offends public policies meant

to preserve the accuracy, reliability, and stability of real property records as well as

the duty of diligence owed by the parties in such transfers. Id. Like the plaintiffs in

Cosgrove, the Christersons seek to recast later conduct performed under the terms

of the financing agreement as an independent breach of the original sale and

financing agreement. See id.

      We apply the holding in Cosgrove to the facts presented in this case and reject

the contention that the Christersons’ claims did not accrue until 2010.             The

Christersons’ claims for breach of contract accrued, and thus the limitations period

commenced, when the Speers and the Christersons signed the closing documents in

2000. The closing documents, including the deed of trust, reflect repayment terms

that differ from the terms of the agreement the Christersons claimed to have made.

See id. at 39 (explaining that claim for breach of contract accrues when contract is

breached).


                                          17
      3. The acceptance of payments under the loan does not constitute
         a continuing tort.

      The Christersons’ claim that the accrual of their tort claims was delayed under

a continuing tort theory also is unavailing.3 A continuing tort is an ongoing wrong,

causing a continuing injury that does not accrue until the tortious act ceases. Rogers

v. Veigel Inter Vivos Tr. No. 2, 162 S.W.3d 281, 290 (Tex. App.—Amarillo 2005,

pet. denied). Repeated injury proximately caused by repetitive wrongful or tortious

acts may constitute a continuing tort, but a continuing injury arising from one

wrongful act does not. Compare Upjohn Co. v. Freeman, 885 S.W.2d 538, 542

(Tex. App.—Dallas 1994, writ denied) (applying continuing-tort rule to repeated use

of mistakenly prescribed medication; each use created separate injury and cause of

action for damages was not complete and did not accrue until wrongful conduct

ended) with Rogers, 162 S.W.3d at 290 (holding that bank’s periodic collection of

fees as purported trustee of nonexistent trust did not constitute continuing tort; all

injury arose from bank’s single act of usurping control over property). Unlike

conduct constituting a continuing tort, the Christersons’ monthly payments, as well

as the Speers’ later demand for the catch-up payment, all stem from conduct that

occurred before and at the closing and pursuant to the written documents that both




3
      The Texas Supreme Court has “neither endorsed nor addressed” the continuing tort
      doctrine. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.8 (Tex. 2005).
                                         18
parties executed at that time. We hold that the trial court correctly granted summary

judgment based on the statute of limitations bar applicable to their claims.

      4. The trial court acted within its discretion in rejecting a claim of
         spoliation as a basis for denying summary judgment on
         limitations.

      Finally, the Christersons contend that the Speers spoliated evidence because

they could not produce the original promissory note that the Christersons contend

reflected the parties’ agreement to accept $1,450 in monthly payments for 30 years

to satisfy the loan. The Christersons complain of the trial court’s implicit refusal to

deny summary judgment as a spoliation sanction. Because the trial court granted the

Speers’ motion for summary judgment, we presume that the court considered and

rejected the Speer’s request for a spoliation presumption. See Clark v. Randalls

Food, 317 S.W.3d 351, 356 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). We

review a trial court’s ruling on a request for a spoliation remedy for an abuse of

discretion. See Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014).

      Parties have a duty to reasonably preserve discoverable evidence. Id. at 16–

17 (citing Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003)). The

party alleging spoliation bears the burden of establishing that the nonproducing party

had a duty to preserve the evidence. Id. at 20 (citing Wal-Mart Stores, 106 S.W.3d

at 722). The Christersons point to the Speers’ failure to produce the promissory note

in response to discovery requests, coupled with the Speers’ admission that they never


                                          19
provided the Christersons with a copy of the promissory note. The Christersons

contend that these admissions show that the Speers caused the destruction of material

evidence, precluding summary judgment on limitations. The evidence about the

note in the record is that the Speers, after a thorough search, were unable to find it.

This evidence does not demonstrate that the Speers destroyed the note or owed a

duty to preserve it beyond the passing of the limitations period. Because the

Christersons did not meet their burden to adduce evidence demonstrating that

spoliation occurred, the trial court did not err in rejecting their spoliation request.

                                   CONCLUSION
         We hold that transfer of venue from Harris County to Chambers County was

proper and that the trial court did not err in granting summary judgment based on

the applicable statutes of limitations. We therefore affirm the judgment of the trial

court.




                                                Jane Bland
                                                Justice

Panel consists of Justices Keyes, Bland, and Huddle.




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