Opinion filed May 7, 2015




                                    In The


        Eleventh Court of Appeals
                                  __________

                            No. 11-13-00090-CV
                                  __________

 ENDURA PRODUCTS CORP AND NOVASTAR LP, Appellants
                                       V.
                       DAVID A. ALTEMUS, Appellee


                    On Appeal from the 385th District Court
                           Midland County, Texas
                       Trial Court Cause No. CV49202


                     MEMORANDUM OPINION
      This is an appeal from a summary judgment order entered in favor of
Appellee, David A. Altemus. We affirm.
      In 2003, Endura Products Corp and Novastar LP entered into an agreement
with World Wide Web Productions (WWWP). Under the terms of the agreement,
WWWP agreed to create a computer software system for each of Appellants’
businesses. Wesley Groves, WWWP’s Senior Program Analyst, was the primary
WWWP representative with whom Appellants dealt during the negotiations that led
up to the contract. Groves made a number of representations about Appellee during
the negotiations. For instance, Groves represented that Appellee was WWWP’s
president and chief financial officer, that Appellee was WWWP’s only investor, that
Appellee was willing to allow Appellants to pull his credit report to validate the
company’s financial status, and that Appellee was also the majority owner of Web
Design Houston, WWWP’s sister company.
       Three years after the parties entered into the contract, WWWP had still not
provided Appellants with a functional computer system. On October 26, 2006,
Groves sent an e-mail to Appellants in which he stated that the project was not going
as planned and that the contract would need to be reconfigured or abandoned. By
that time, Appellants had paid more than $103,000 to WWWP for the creation of the
computer software system.
       Appellants filed suit on April 16, 2008, and alleged claims for fraud and civil
conspiracy against Appellee.1              Appellee asserted the affirmative defense of
limitations in his answer. After an adequate time for discovery, Appellee filed
traditional and no-evidence motions for summary judgment. In his traditional
motion for summary judgment, Appellee claimed that he was entitled to judgment
as a matter of law because Appellants were barred by the statute of limitations from
bringing their fraud and civil conspiracy claims. In his no-evidence motion for
summary judgment, Appellee asserted that there was no evidence as to certain
elements of those claims. He also argued that, in the alternative, Appellants could
not show, as a matter of law, that they relied on any representations or that any
representations were material.            The trial court granted Appellee’s motions for
summary judgment. Appellee filed a motion to sever Appellants’ claims against him


       1
         Appellants also sued Avette Renee Groves d/b/a WWWP; Anabasis Solutions, LLC; and Wesley
Groves for breach of contract, breach of express warranty, breach of implied warranty of good and
workmanlike services, promissory estoppel, fraud, violations of the Texas Deceptive Trade Practices Act,
and civil conspiracy. The trial court ultimately entered a default judgment against these defendants for
approximately $1.2 million. Avette Renee Groves d/b/a WWWP; Anabasis Solutions, LLC; and Wesley
Groves are not parties to this appeal.
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from Appellants’ remaining claims against the other defendants. The trial court
granted Appellee’s motion to sever and this appeal followed.
      Appellants present eight issues for our review. In their first issue, Appellants
allege that the trial court erred when it granted Appellee’s motions for summary
judgment. Appellants’ second, third, fourth, and fifth issues concern whether
Appellants raised a genuine issue of material fact as to the accrual date of their claims
and whether such claims were barred by the applicable statute of limitations. In their
sixth and seventh issues, Appellants argue that they presented more than a scintilla
of evidence to raise a genuine issue of material fact as to the representation and
reliance elements of their fraud claim. And, in their final issue, Appellants contend
that they presented more than a scintilla of evidence to raise a genuine issue of
material fact as to the “meeting of the minds” element of their civil conspiracy claim.
      We review a trial court’s grant of summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When reviewing a
summary judgment, we take as true evidence favorable to the nonmovant. Id. A
trial court must grant a traditional motion for summary judgment if the moving party
establishes that no genuine issue of material fact exists and that the movant is entitled
to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Lear Siegler, Inc. v. Perez,
819 S.W.2d 470, 471 (Tex. 1991); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979). The nonmovant is not required to file a response to
defeat the movant’s summary judgment motion; however, once the movant
establishes a right to judgment as a matter of law, the nonmovant must come forward
with evidence or law that precludes summary judgment. Clear Creek, 589 S.W.2d
at 678–79. A trial court must grant a no-evidence motion for summary judgment if
the nonmovant fails to produce more than a scintilla of evidence raising a genuine
issue of material fact on the challenged element of the cause of action. TEX. R.
CIV. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A
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nonmovant produces more than a scintilla of evidence when the evidence “rises to a
level that would enable reasonable and fair-minded people to differ in their
conclusions.” Ridgway, 135 S.W.3d at 601 (quoting Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997)) (internal quotation marks omitted).
Because the trial court did not specify the grounds on which it granted summary
judgment, we must affirm the summary judgment if any of the grounds presented to
the trial court are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 216 (Tex. 2003).
      When a defendant moves for summary judgment on the affirmative defense
of limitations, he has the burden to conclusively establish that defense. KPMG Peat
Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). To
meet this burden, the defendant must conclusively prove when the cause of action
accrued and negate the discovery rule, if applicable and at issue, by proving as a
matter of law that there is no genuine issue of material fact regarding when the
plaintiff discovered or, in the exercise of reasonable diligence, should have
discovered the nature of its injury. Id.
      In their second issue, Appellants contend that they raised a genuine issue of
material fact as to when Appellants’ claims accrued. Specifically, Appellants assert
that their claims did not accrue until October 26, 2006, when WWWP first indicated
that it might abandon the computer software project. In the alternative, Appellants
assert that their claims did not accrue until February 24, 2005, when they last made
a payment on the contract in reliance upon Appellee’s fraudulent statements.
Appellants also argue that the discovery rule applies to their fraud and civil
conspiracy claims.
      “[A] cause of action accrues 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.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996).
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Normally, a tort cause of action accrues when the allegedly tortious act is committed.
Hoover v. Gregory, 835 S.W.2d 668, 676 (Tex. App.—Dallas 1992, writ denied)
(citing Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990)).
However, sometimes accrual is deferred and a cause of “action does not accrue until
the plaintiff knew or in the exercise of reasonable diligence should have known of
the wrongful act and resulting injury.” S.V., 933 S.W.2d at 4. In S.V., the Supreme
Court of Texas explained that there were two types of cases in which accrual was
deferred: fraud and fraudulent concealment cases, and all others. Id. at 4, 6. The
court distinguished the two categories of cases and explained that what is known as
the “discovery rule” only applies to the latter cases. Id. Thus, the discovery rule
does not apply to the causes of action in this case even though accrual is deferred.
Id. at 4–6. But see Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997) (“This
exception, which we call the ‘discovery rule’, applies in cases of fraud and fraudulent
concealment, and in other cases in which ‘the nature of the injury incurred is
inherently undiscoverable and the evidence of injury is objectively verifiable.’”)
(quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996)
(discussing the discovery rule and deferral based on fraud) and citing S.V., 933
S.W.2d at 6 (discussing same)).
      In causes of action for fraud and fraudulent concealment, “accrual is deferred
because a person cannot be permitted to avoid liability for his actions by deceitfully
concealing wrongdoing until limitations ha[ve] run.” S.V., 933 S.W.2d at 6. Causes
of action for fraud accrue when the fraud is perpetrated or, if concealed, when the
fraud is discovered or could have been discovered with reasonable diligence.
Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). “The statute
of limitations for fraud begins to run from the time the party knew of the
misrepresentation.” Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194,
216 (Tex. 2011) (citing Little v. Smith, 943 S.W.2d 414, 420 (Tex. 1997)).
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      Appellee argued in his traditional motion for summary judgment that
Appellants had information by November 13, 2003, that gave them notice or, had
they exercised reasonable diligence, would have caused them to discover the alleged
fraud. Appellee attached the following documents to his motion to show that
Appellants knew the misrepresentations made by Groves about Appellee were false
well before 2006: an e-mail from Groves, Appellee’s credit application, the credit
report, and a report from Dun & Bradstreet. Appellee argued that, “[a]t the very
least, they were on notice of contradictions sufficient to put them to a duty to further
investigate to discover the alleged fraud.”
      In the October 27, 2003 e-mail, Groves stated that Appellee was willing to
have his credit checked and that, because Appellee was WWWP’s “only investor,”
checking Appellee’s credit was “the most effective way to evaluate [WWWP’s]
stability.” Appellants received Appellee’s credit report and a Dun & Bradstreet
business information report on October 29, 2003, regarding WWWP. The credit
report contained no reference to WWWP. The Dun & Bradstreet report contained
no reference to Appellee; instead, it listed Groves’s wife as the president of WWWP.
Appellants hired a private investigator to conduct a background check on WWWP
and on Appellee. On November 13, 2003, Appellants received a report from the
private investigator in which the investigator noted his concerns about WWWP and
Appellee. The investigator could not find a connection between WWWP and
Appellee, nor could he find any records concerning the financial stability of
WWWP.
      Appellants argue that, regardless of when they discovered or should have
discovered Appellee’s wrongful acts of fraudulent misrepresentation, Appellants
could not, and did not, discover the resulting injury until, at the earliest, October
2006. Appellants claim that they had to know about the wrongdoing and the injury
for the claim to accrue and that they did not discover the injury until Groves sent the
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e-mail indicating that WWWP might abandon the computer software project.
Appellee responds that the fraud claim against him must be based on his actions, not
the actions of Groves. “WWWP’s indication that it might abandon the project might
be relevant to the accrual of Appellant’s breach of contract claim against Groves and
WWWP, but it was not an act in furtherance of any tort claimed against [Appellee].”
We agree with Appellee. Appellants’ alleged injury, with regard to their fraud claim
against Appellee, occurred when they entered into the contract with WWWP, not
when WWWP indicated that it might breach the contract.
      The summary judgment evidence shows that Appellants knew the nature of
their alleged injury, or could have discovered it by the exercise of reasonable
diligence, by November 13, 2003. The credit report, the Dun & Bradstreet report,
and the private investigator’s report should have alerted Appellants that Groves
misrepresented the company and Appellee’s role in the company. Thus, Appellee
proved as a matter of law that Appellants knew or, by the exercise of reasonable
diligence, should have known about the fraud in November 2003. Appellants did
not provide any summary judgment evidence to rebut the fact that they received
these three reports in November 2003 or that the reports contained information that
conflicted with the representations made about WWWP and Appellee. Therefore,
Appellants did not raise a genuine issue of material fact as to when their cause of
action against Appellee for fraud accrued.
      Likewise, Appellants did not raise a genuine issue of material fact as to when
their cause of action against Appellee for civil conspiracy accrued. Appellants argue
on appeal that, “even if Appellee was not personally involved at every point of the
conspiracy to defraud Appellants, the accrual date of the civil conspiracy claim as to
all of the Defendants was deferred to the last offense causing loss and damage by
any one of the co-conspirators.” Appellants therefore contend that their civil
conspiracy claim also did not accrue until October 2006, when Groves indicated that
                                          7
WWWP might abandon the project. Civil conspiracy is a derivative tort and is
dependent on participation in an underlying statutory violation or tort, other than
negligence. Chu v. Hong, 249 S.W.3d 441, 444–47 (Tex. 2008); Tri v. J.T.T., 162
S.W.3d 552, 557 (Tex. 2005); Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996).
Appellants alleged that Appellee and the other defendants conspired to commit fraud
against them and did so by making misrepresentations about Appellee prior to when
Appellants entered into the contract. Thus, Appellants claim of civil conspiracy was
not that the defendants conspired to breach the contract but that they conspired to
commit fraud in order to get Appellants to sign the contract. Therefore, when
Appellants knew or, by the exercise of reasonable diligence, should have known
about the fraud, they also knew or, by the exercise of reasonable diligence, should
have known that Groves, as WWWP’s representative, and Appellee acted in concert
in making misrepresentations.        The summary judgment evidence shows that
Appellants’ civil conspiracy claim against Appellee accrued at the same time that
their fraud claim against Appellee accrued: November 2003.                 We overrule
Appellants’ second issue.
      In Appellants’ third issue, they address whether their cause of action for fraud
was barred as a matter of law by the four-year statute of limitations. Because the
summary judgment evidence shows that Appellants’ cause of action against
Appellee accrued in November 2003, Appellants were required to file suit by
November 2007 to be within the four-year statute of limitations for fraud cases. See
TEX. CIV. PRAC. & REM. CODE ANN. § 16.004(a)(4) (West 2002) (a person must
bring suit on a fraud action not later than four years after the cause of action accrues).
Therefore, because Appellants did not file suit until April 16, 2008, their fraud cause
of action against Appellee is barred as a matter of law. Appellants’ third issue is
overruled.


                                            8
      Similarly, Appellants’ fifth issue is whether their cause of action against
Appellee for civil conspiracy to defraud is barred as a matter of law by the applicable
statute of limitations. In their fourth issue, Appellants claim that the statute of
limitations for civil conspiracy to defraud is four years. Appellee claims that the
statute of limitations for civil conspiracy is two years. Regardless of whether the
statute of limitations for civil conspiracy is two years or four years, Appellants did
not file suit until four years and five months after the cause of action accrued.
Therefore, their civil conspiracy cause of action against Appellee is also barred as a
matter of law. The trial court did not err when it granted Appellee’s traditional
motion for summary judgment. We overrule Appellants’ fourth and fifth issues, and
we overrule Appellants’ first issue as to Appellee’s traditional motion for summary
judgment.
      Because we have found that the trial court did not err when it granted
judgment in favor of Appellee on the ground that Appellants’ claims against
Appellee were barred by the statute of limitations, we do not reach Appellants’ sixth
through eighth issues regarding whether they raised a genuine issue of material fact
as to certain elements of their asserted causes of action. In that regard, it is also not
necessary for us to determine whether the trial court erred when it granted Appellee’s
no-evidence motion for summary judgment.
      We affirm the order of the trial court by which it granted Appellee’s traditional
motion for summary judgment.




                                               JIM R. WRIGHT
May 7, 2015                                    CHIEF JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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