                            NUMBER 13-08-00595-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


CORINE L. BRADSHAW,                                                        Appellant,

                                           v.

DAVID BONILLA AND DAVID BONILLA, P.C.,                                     Appellees.


                   On appeal from the 319th District Court
                         of Nueces County, Texas.


                         MEMORANDUM OPINION

            Before Justices Yañez, Rodriguez, and Benavides
               Memorandum Opinion by Justice Rodriguez

      Appellant Corine L. Bradshaw appeals a summary judgment granted in favor of

appellees David Bonilla and David Bonilla, P.C. (collectively Bonilla) on her breach of

fiduciary duty and fraud claims. By two issues, which we renumber as five, Bradshaw

contends that the trial court erred in granting Bonilla's motion for summary judgment and
in denying her motion to continue the summary judgment proceeding. We affirm, in part,

and reverse and remand, in part.

                                              I. BACKGROUND 1

        Kelly Bragg is Bradshaw's granddaughter. In 2002, Bragg hired Bonilla to represent

her in legal matters involving the custody of her two children, who were then residing in

Virginia with their father and Kelly's former husband, Jeffrey Bragg. For at least a two-year

period, in addition to custody issues, Bonilla represented Bragg in criminal proceedings

and in other matters involving numerous creditors and hot checks. During that time,

Bradshaw, who was then in her late eighties and early nineties, issued checks to Bonilla

totaling more than $700,000. According to Bradshaw, the monies were to be used for

Bragg's legal representation in certain custody and criminal matters. Bonilla deposited

Bradshaw's checks into his IOLTA account. During that same two-year period, Bonilla

disbursed approximately $430,000 from his IOLTA account to Bragg or for Bragg's benefit.

        Bradshaw sued Bonilla for breach of fiduciary duty and fraud.2 She alleged that

Bonilla had procured her money by fraud and failed to account for the money or return it

to her. Bonilla filed a general denial and asserted, among other defenses, limitations and

res judicata. Motions for summary judgment and responses were filed by both parties.

See TEX . R. CIV. P. 166a(c), (i). Bradshaw filed a partial motion for summary judgment on

her breach of fiduciary duty claim. Bonilla filed a combined traditional/no-evidence motion


        1
           As this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite them
here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See T EX .
R. A PP . P. 47.4.

        2
         Although it is unclear from Bradshaw's petition, both parties' m otions for sum m ary judgm ent
reference a breach of contract claim . Bradshaw, however, does not argue that the trial court erred in granting
sum m ary judgm ent on her contract claim , if any. Therefore, that m atter is not before us in this appeal.

                                                        2
challenging proof of the elements of Bradshaw's claims and asserting that the evidence

established his limitations and res judicata affirmative defenses. Bradshaw also filed a

motion for continuance asking the trial court to allow her time to take Bonilla's deposition

prior to the summary judgment hearing.

       On July 24, 2008, the trial court heard all motions. After hearing arguments on the

motion for continuance, the trial court denied the continuance in open court.           On

September 23, 2008, without stating the grounds for its ruling or upon which summary

judgment motion it was granted, the trial court granted Bonilla's motion for traditional and

no-evidence summary judgment. In the same order, the trial court denied Bradshaw's

motion for partial summary judgment. This appeal ensued.

                                II. STANDARDS OF REVIEW

       The standard of review for the granting of a motion for summary judgment is

determined by whether the motion was brought on no-evidence or traditional grounds. See

TEX . R. CIV. P. 166a(c), (i); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex.

App.–Corpus Christi 2003, no pet.) (op. on reh'g).

                                A. No-Evidence Motion

       Under rule 166a(i), the movant must allege that there is no evidence of a material

element of the adverse party's claims. TEX . R. CIV. P. 166a(i); see Sw. Elec. Power Co.

v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). While not required to marshal her proof, the

non-movant must produce more than a scintilla of summary judgment evidence, thus,

raising a genuine issue of material fact. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598,

600 (Tex. 2004); Grant, 73 S.W.3d at 215. If the non-movant fails to produce more than



                                             3
a scintilla of evidence under rule 166a(i), then there is no need to analyze whether

appellee's summary judgment proof satisfies the less stringent rule 166a(c) burden.

Ridgway, 135 S.W.3d at 600. If, however, the non-movant brings forward more than a

scintilla of probative evidence, then a no-evidence summary judgment is not proper.

Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.–San Antonio 1998, pet. denied).

       We review a no-evidence summary judgment for evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005)). We "examine the entire record in the light most favorable to the non[-]movant,

indulging every reasonable inference and resolving any doubts against the motion." Sudan

v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (quoting City of Keller, 168

S.W.3d at 823).

                                  B. Traditional Motion

       We review the trial court's granting of a traditional motion for summary judgment de

novo, Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003);

Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.–Corpus Christi 2003, no pet.), and

consider whether reasonable and fair-minded jurors could differ in their conclusions in light

of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d

754, 755 (Tex. 2007) (per curiam) (citing Wal-Mart Stores, Inc. v. Spates, 186 S.W.3d 566,

568 (Tex. 2006) (per curiam); City of Keller, 168 S.W.3d at 822-24); Branton, 100 S.W.3d

at 646.

       A party moving for summary judgment must establish its right to summary
       judgment on the issues expressly presented to the trial court by conclusively


                                             4
       proving all elements of its cause of action or defense as a matter of law. The
       defendant as movant must disprove at least one of the essential elements
       of the plaintiff's causes of action to prevail on summary judgment. On
       appeal, the defendant still bears the burden of showing that there are no
       genuine fact issues and that it is entitled to judgment as a matter of law.

Elliott-Williams Co. v. Diaz, 9 S.W.3d 801, 803 (Tex. 1999) (citations omitted); see TEX . R.

CIV. P. 166a(b), (c). A matter is conclusively established if reasonable people could not

differ as to the conclusion to be drawn from the evidence. City of Keller, 168 S.W.3d at

816. The movant bears the burden of proof in a traditional motion for summary judgment,

and we indulge every reasonable inference in favor of the non-movant and resolve all

doubts about the existence of a genuine issue of material fact against the movant. See

Mayes, 236 S.W.3d at 756 (citing Sudan, 199 S.W.3d at 292). Only when the movant has

produced sufficient evidence to establish his right to summary judgment does the burden

shift to the non-movant to come forward with competent controverting evidence raising a

genuine issue of material fact. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.

1999); see Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

       When, as here, a summary judgment does not specify the grounds on which it was

granted, the appealing party must demonstrate that none of the movant's proposed

grounds is sufficient to support the judgment. See Star-Telegram, Inc. v. Doe, 915 S.W.2d

471, 473 (Tex. 1995). We will affirm the judgment if any one of the theories advanced in

the motion for summary judgment and preserved for appellate review is meritorious. Joe

v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). Finally, when a party

moves for summary judgment under both rules 166a(c) and 166a(i), as in this case, "[w]e




                                             5
first review the trial court's summary judgment under the standards of [r]ule 166a(i)."

Ridgway, 135 S.W.3d at 600.

                                   III. SUMMARY JUDGMENT

       By her first four issues, Bradshaw generally claims that the trial court erred in

granting Bonilla's motion for summary judgment. By issues one and two, Bradshaw urges

that the evidence establishes her claims, and by issues three and four, she asserts that

Bonilla's summary judgment evidence did not conclusively prove his affirmative defenses

of limitations and res judicata.

                            A. Breach of Fiduciary Duty Claim

       By her first issue, Bradshaw contends that there is evidence to support each

element of her breach of fiduciary duty claim. In response, Bonilla contends that summary

judgment against Bradshaw was proper because there is no evidence that he had a

fiduciary relationship with Bradshaw and, therefore, owed her no duty.

                                      1. Applicable Law

       In order to prevail on a breach of fiduciary duty claim, a plaintiff must prove: (1) the

existence of a fiduciary relationship between the plaintiff and the defendant, (2) a breach

by the defendant of his or her fiduciary duty to the plaintiff, and (3) an injury to the plaintiff

or benefit to the defendant as a result of the breach. Lundy v. Masson, 260 S.W.3d 482,

501 (Tex. App.–Houston [14th Dist.] 2008, pet. denied). A fiduciary relationship may arise

as a matter of law in certain formal relationships, including attorney-client and trustee

relationships. Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex. 2005) (per curiam); Priddy v.

Rawson, 282 S.W.3d 588, 600 (Tex. App.–Houston [14th Dist.] 2009, pet. denied); see



                                                6
Lundy, 260 S.W.3d at 501; Cotten v. Weatherford Bancshares, Inc., 187 S.W.3d 687, 698

(Tex. App.–Fort Worth 2006, pet. denied).

       Because not every relationship involving a high degree of trust and confidence rises

to the stature of a formal fiduciary relationship, the law also recognizes the existence of an

informal or confidential fiduciary relationship. Meyer, 167 S.W.3d at 330. An informal

fiduciary relationship may arise from a moral, social, domestic, or purely personal

relationship of trust and confidence. Id.; Crim Truck & Tractor Co. v. Navistar Int'l Transp.

Corp., 823 S.W.2d 591, 594 (Tex. 1992); Priddy, 282 S.W.3d at 600; Cotten, 187 S.W.3d

at 698. However, the moral, social, domestic, or personal relationship upon which the

informal or confidential relationship is predicated "must exist prior to, and apart from the

agreement made the basis of the suit." Meyer, 167 S.W.3d at 331 (quoting Schlumberger

Tech. Corp. v. Swanson, 959 S.W.2d 171, 177 (Tex. 1997)); Priddy, 282 S.W.3d at 600;

see Hubbard v. Shankle, 138 S.W.3d 474, 483 (Tex. App.–Fort Worth 2004, pet. denied)

("In other words, there must be a preexisting special relationship of trust and confidence

that is betrayed in later dealings."). A person is justified in placing confidence in the belief

that another party will act in her best interest only where she is accustomed to being

guided by the judgment or advice of the other party and there exists a long association in

a business relationship as well as a personal friendship. Hoggett v. Brown, 971 S.W.2d

472, 488 (Tex. App.–Houston [14th Dist.] 1997, pet. denied). In addition, mere subjective

trust is insufficient to establish a confidential relationship that gives rise to a fiduciary duty.

Meyer, 167 S.W.3d at 331. Finally, while the existence of an informal fiduciary relationship




                                                7
"is ordinarily a question of fact, when the issue is one of no evidence, it becomes a

question of law." Crim Truck, 823 S.W.2d at 594 (citing Thigpen, 363 S.W.2d at 253).

                             2. Motions, Responses, and Evidence

        On February 26, 2008, Bradshaw filed a motion for partial summary judgment

claiming that she proved, as a matter of law, each element of her breach of fiduciary duty

claim. See TEX . R. CIV. P. 166a(c). In her motion, Bradshaw urged the following:

        [Bonilla] owed [her] a fiduciary duty to account for monies received from her
        and to expend them only for the benefit of her granddaughter in pending
        litigation or criminal matters. [She] had a fiduciary relationship with [Bonilla]
        by [his] accepting her monies in trust and as evidenced by letters attached
        to [her] affidavit. [Bonilla] had a duty to return said monies to [her].

        In support of her motion, Bradshaw attached the following: (1) her affidavit, in which

she identified a number of checks she issued to Bonilla for the representation of Bragg in

a custody case and in certain criminal matters; and (2) letters from Bonilla to Bradshaw,

dated between April 19, 2002, and April 12, 2004.3

        In his response to Bradshaw's motion for partial summary judgment, Bonilla

asserted that the evidence showed he had neither a formal attorney-client relationship nor

an informal fiduciary relationship with Bradshaw.                   In addition, Bonilla incorporated

arguments made in his traditional/no-evidence motion for summary judgment. Relevant

to our analysis is the portion of his no-evidence motion where he urged that Bradshaw had

        3
          Bonilla's letters included (1) three acknowledging receipt of a num ber of Bradshaw's checks; (2) one
requesting a $30,000 check from Bradshaw and suggesting that the check would be used as a cash bond to
secure a visit by Bragg's children to C orpus Christi; (3) one estim ating attorney's fees in the am ount of
$30,000 to $40,000 for the cost of litigation concerning the visitation of the children; (4) one regarding the
dism issal of Bragg's crim inal case involving Bradshaw; (5) one inform ing Bradshaw of (a) Bonilla's referral
of Bragg to a counselor for her spending addiction and the paym ent for the visits through his office and (b)
the pending sale of a BMW purchased by Bragg and the return of the m oney to Bradshaw; and (6) one
inform ing Bradshaw of the sale of the BMW , advising her that if she needed assistance paying taxes to notify
Bonilla so that he could forward a check to assist her, and, per her instructions, placing the proceeds of the
sale of the BMW into Bonilla's IOLTA Trust Account.

                                                      8
no evidence that she had standing to claim breach of fiduciary duty through either a formal

or an informal relationship.

        In Bradshaw's response to Bonilla's combined motion, she continued to maintain

that material fact issues remained as to her breach of fiduciary duty claim because there

was summary judgment evidence to show that she "acted in a trusting and confidential

relationship with [Bonilla], and that [she] trusted that [Bonilla] would use the delivered

monies as promised." In her response, Bradshaw made the following argument:

        [Bonilla] received and accepted monies from [Bradshaw] and made written
        representations as to the use of said monies. There was no formal agency
        or escrow agreement; none is required. The letters sent by [Bonilla] and
        received by [Bradshaw] clearly state that an agreement existed between the
        parties as to the use of the transferred funds. [Bradshaw] trusted [Bonilla].
        The parties were not equals. One was a 90 year old woman; the attorney,
        an attorney with almost 30 years of experience. Because he was an attorney
        and accepted the monies and deposited them into his IOLTA account with
        the understanding as represented in writing to [Bradshaw], and because of
        the unequal nature and mindset of the parties, [Bonilla] was under a duty to
        use the funds as directed or instructed by [Bradshaw, or to advise
        [Bradshaw] of the same. [Citations to authority omitted.]

        Bradshaw supported her responsive arguments with the following: (1) her affidavit4

and its attachments, which included copies of twelve personal checks and six cashier's

checks totaling over $700,000, all made payable to Bonilla; (2) correspondence from

Bonilla including a September 17, 2004 letter, in which he identified checks that he had


        4
          In her attached affidavit, Bradshaw (1) repeated statem ents found in her earlier-filed affidavit; (2)
explained that the m onies she provided to Bonilla were from personal funds and not from a trust fund as Bragg
claim ed; (3) added that she "trusted Mr. Bonilla . . . [to] handle the m onies [she] gave him as indicated in his
letters and for the purposes indicated in the letters and on the checks;" (4) stated that she did "not recall
[Bragg] sharing this list [of checks] with [her] in Septem ber of 2004;" and (5) averred that after she read
Bragg's October 16, 2006 affidavit filed in support of Bonilla's com bined m otion for sum m ary judgm ent, she
learned (a) that m onies had been disbursed to Bragg directly; (b) that they were not used for attorney's fees
in obtaining visitation with [her great-]grandchildren or for a bond; and (c) that Bragg allegedly m ade expensive
jewelry purchases, paid her boyfriend's ad valorem taxes, and m ade m any other "foolish" expenditures with
these m onies. Bradshaw affied that she authorized none of these disbursem ents.

                                                        9
issued from his IOLTA account through August 20, 2004, to or on behalf of Bragg in the

amount of approximately $430,000; and (3) the affidavit of Jeffrey Bragg explaining that

he had no discussions with Bonilla about a bond and that there was no visitation

agreement.5

                                 3. Fiduciary Relationship Element

        On appeal, as to this first element of a breach of fiduciary duty claim, Bradshaw

presents no argument regarding the existence of any formal fiduciary relationship between

herself and Bonilla, and we find no evidence demonstrating the existence of a formal

relationship upon which to base a fiduciary duty.6 Rather, Bradshaw argues that an



        5
          Jeffrey Bragg set out the following in his affidavit: (1) on one occasion, a m an who identified him self
as Mr. Bonilla, called him regarding visitation of his sons with Bradshaw, and he asked the m an why he was
calling him and not Kelly; (2) on a second occasion, a party talked to this m an on Jeffrey Bragg's behalf and
m ade it very "clear to him that under no circum stances would [his sons] be leaving the State of Virginia, and
any visitation, . . . in Virginia, would have to be m ade around their school and sum m er schedules as well as
[his] own"; (3) "[a] bond securing the return of [his sons] from their visitation with Kelly Bragg and/or Corine
Bradshaw was never m entioned nor [sic] discussed"; (4) there were no visitation agreem ents with Kelly Bragg
after Jeffrey Bragg becam e the custodial parent of their sons and he never agreed they could visit Texas; and
(5) he has heard nothing from anyone claim ing to represent his ex-wife since the above-referenced phone
conversations, and the last tim e Kelly visited the boys was in February 2001.

        6
          Bonilla suggests that Bradshaw is asserting, on appeal, that a form al fiduciary relationship existed
because Bonilla acted as her escrow agent. W e do not construe her argum ent as such. Nonetheless, even
were we to agree that this contention has been m ade, an escrow agent relationship is based on a written
agreem ent that sets out the duties owed, and there is no evidence in the record of a written agreem ent
appointing Bonilla as Bradshaw's escrow agent. See, e.g., Jones v. Blume, 196 S.W .3d 440, 448 (Tex.
App.–Dallas 2006, pet. denied) ("An escrow agent m ust be appointed through a specific legal docum ent that
im parts a specific legal obligation."); Chapman Children's Trust v. Porter & Hedges, L.L.P., 32 S.W .3d 429,
438 (Tex. App.–Houston [14th Dist.] 2000, pet. denied) (affirm ing a sum m ary judgm ent in favor of an attorney
who was alleged to have been an escrow agent with respect to settlem ent funds and concluding that absent
a written agreem ent, a lawyer has no duty to act as an escrow agent). Bradshaw asserts that the letters sent
to her by Bonilla clearly state that an agreem ent existed between the parties as to the use of the transferred
funds. W e cannot conclude, however, that the letters evidence a specific legal docum ent appointing Bonilla
escrow agent of the m onies, such that Bradshaw has m et her burden as a m atter of law as m ovant in her
m otion for partial sum m ary judgm ent. See Jones, 196 S.W .3d at 448; see also T EX . R. C IV . P. 166a(c); Sw.
Elec. Power Co. v. Grant, 73 S.W .3d 211, 215 (Tex. 2002). Neither can we conclude that Bradshaw m et her
burden in response to Bonilla's no-evidence m otion for sum m ary judgm ent. Through her sum m ary judgm ent
evidence, Bradshaw failed to produce m ore than a scintilla of probative evidence to raise a genuine issue of
m aterial fact regarding whether a duty existed based on a form al fiduciary relationship. Ford Motor Co. v.
Ridgway, 135 S.W .3d 598, 600 (Tex. 2004).

                                                       10
informal fiduciary relationship existed because she trusted and relied on Bonilla to use her

funds as directed. Our review of the evidence, however, indicates otherwise.

       There is no evidence that Bradshaw had a reason to place a high degree of trust

in Bonilla before she began sending him money for Bragg's expenses and fees. See

Meyer, 167 S.W.3d at 330. There is no evidence that Bradshaw was accustomed to being

guided by the judgment or advice of Bonilla or that there existed a long association in a

business relationship or a personal friendship. See Hoggett, 971 S.W.2d at 488. There

is no evidence of a pre-existing special relationship that was betrayed in later dealings.

Hubbard, 138 S.W.3d at 483.

       To support her claim of an informal or confidential relationship, Bradshaw relies only

on the letters, which she describes as an agreement, and on Bonilla's conduct in

disbursing funds allegedly for undesignated purposes. However, this is not evidence of a

prior special relationship that would justify the imposition of a fiduciary duty on Bonilla. See

Meyer, 167 S.W.3d at 331. The agreement, if any, and Bonilla's conduct do not represent

prior dealings between Bonilla and Bradshaw. Rather, they form the basis of the present

lawsuit. And, the fact that Bradshaw stated she trusted Bonilla is not, in and of itself,

enough to establish an informal or confidential fiduciary relationship. See id.

       Therefore, after examining the entire record in the light most favorable to Bradshaw,

indulging every reasonable inference and resolving any doubts against the motion, see

Sudan, 199 S.W.3d at 292, and after reviewing the summary judgment record for evidence

that would enable reasonable and fair-minded jurors to differ in their conclusions, see

Hamilton, 249 S.W.3d at 426, we conclude, as to Bonilla's no-evidence motion for



                                              11
summary judgment, that Bradshaw has failed to produce more than a scintilla of evidence

raising a genuine issue of material fact regarding the existence of a fiduciary duty owed her

by Bonilla. See Ridgway, 135 S.W.3d at 600. Likewise, we conclude that Bradshaw did

not establish her right to summary judgment as movant in her motion for partial summary

judgment because she did not conclusively prove the fiduciary duty relationship element

of her cause of action as a matter of law. See TEX . R. CIV. P. 166a(b), (c); Diaz, 9 S.W.3d

at 803. Therefore, the trial court did not err in granting Bonilla's motion for no-evidence

summary judgment and denying Bradshaw's motion for partial summary judgment on her

breach of fiduciary duty claim.

        Having concluded that Bradshaw did not meet her burden on Bonilla's no-evidence

motion, there is no need to analyze whether Bonilla's summary judgment proof satisfies

the less stringent rule 166a(c) burden on Bradshaw's fiduciary duty claim. Ridgway, 135

S.W.3d at 600; see TEX . R. APP. P. 47.1. And because this analysis is dispositive of this

issue, we need not address Bonilla's affirmative defenses as they apply to this claim. See

TEX . R. APP. P. 47.1. We overrule Bradshaw's first issue.

                                              B. Fraud Claim

        By her second issue, Bradshaw alleges that the evidence supports her fraud claim.

Bonilla contends that, as a matter of law, there is no evidence of fraud on his part.

                                            1. Applicable Law

        In Texas, it has long been established that a lawyer may be liable if he knowingly

commits a fraudulent act that injures a third person.7 See, e.g., Chu v. Chong Hui Hong,


         7
           A lawyer m ay also be "liable . . . if he knowingly enters into a conspiracy to defraud a third person."
Mendoza v. Fleming, 41 S.W .3d 781, 787 (Tex. App.–Corpus Christi 2001, no pet.). In addition, through her
briefing, Bradshaw suggests that Bonilla m ay be liable as a party-in-interest for the fraudulent

                                                       12
249 S.W.3d 441, 446 (Tex. 2008) ("An attorney who personally steals goods or tells lies

on a client's behalf may be liable for conversion or fraud in some cases.") (citing Estate of

Stonecipher v. Estate of Butts, 686 S.W.2d 101, 103 (Tex. 1985) (per curiam); Poole v.

Houston & T.C. Ry. Co., 58 Tex. 134, 137-38 (1882) (explaining that where an attorney

acting on behalf of his client participates in fraudulent activities, his conduct is "foreign to

the duties of an attorney")); Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472

(Tex. App.–Houston [1st Dist.] 1985, no writ); Querner v. Rindfuss, 966 S.W.2d 661, 666,

670 & n.1 (Tex. App.–San Antonio 1998, writ denied); cf. McCamish, Martin, Brown &

Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 794 (Tex. 1999) (noting that fraud

actions cannot be brought against an opposing attorney in litigation as reliance in those

circumstances is unreasonable). To establish a claim for fraud in this case, Bradshaw

must establish that (1) Bonilla made a material representation knowing the representation

was false or recklessly as a positive assertion without any knowledge of its truth with the

intention to induce Bradshaw to act upon it; (2) Bradshaw actually and justifiably relied

upon the representation; and (3) Bradshaw suffered injury. Ernst & Young, L.L.P. v. Pac.

Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001); Bradford v. Vento, 48 S.W.3d 749,

754-55 (Tex. 2001).



m isrepresentations of Bragg by m ere silent acquiescence when he benefitted from the fraud. See In re Arthur
Andersen L.L.P., 121 S.W .3d 471, 481 (Tex. App.–Houston [14th Dist.] 2003, orig. proceeding) (citing
Bransom v. Standard Hardware, Inc., 874 S.W .2d 919, 924 (Tex. App.–Fort W orth 1994, writ denied); Corpus
Christi Teachers Credit Union v. Hernandez, 814 S.W .2d 195, 202 (Tex. App.–San Antonio 1991, no writ)).
However, at the tim e of the sum m ary judgm ent proceeding, Bradshaw's pleadings asserted only that Bonilla
had com m itted direct fraudulent acts that caused her injury, not that he conspired with Bragg to defraud
Bradshaw or that he was a party-in-interest who benefitted from Bragg's allegedly fraudulent actions through
his silent acquiescence. Therefore, these proposed theories of recovery were not presented to the trial court
and will not be considered in this appeal. See T EX . R. C IV . P. 166a(c) ("Issues not expressly presented to the
trial court by written m otion, answer or other response shall not be considered on appeal as grounds for
reversal.")

                                                       13
                        2. Motions, Responses, and Evidence

       Bonilla filed a motion for traditional and no-evidence summary judgment on

Bradshaw's fraud claim. In his no-evidence argument, Bonilla asserted that Bradshaw had

no evidence, even after an adequate time for discovery, to support each of the essential

elements of her fraud claim, arguing that there was no evidence that he made a material

representation knowing it was false and intending to induce Bradshaw to act or that there

was justifiable reliance by Bradshaw and injury to her. Ernst & Young, 51 S.W.3d at 577.

       In the traditional language of his motion, Bonilla generally argued that Bradshaw's

fraud claim failed because the summary judgment evidence conclusively established that

the claim was meritless, that no genuine issue of material fact existed—i.e., that the

evidence conclusively negated her claim. In support of his motion, Bonilla attached his

affidavit, the affidavit of Kelly Bragg, excerpts from Bradshaw's deposition testimony, and

copies of miscellaneous letters regarding matters related to Bragg's representation.

       Bradshaw responded to Bonilla's combined motion asserting that material fact

issues remained and supported her response with evidence detailed above in section

III. A. 2. As to her fraud claim, Bradshaw asserted that there were fact issues regarding

Bonilla's request for money for (1) a cash bond to secure visitation with her great-

grandchildren, (2) child support that allegedly did not exist, and (3) other payments related

to her great-grandchildren.

                                   3. Fraud Elements

       Bradshaw's supporting evidence filed in response to Bonilla's motion established

that through written correspondence, Bonilla acknowledged receipt of a number of

Bradshaw's checks, requested a $30,000 check from Bradshaw, and suggested that the


                                             14
check would be used in the future as a cash bond to secure a visit by Bragg's children to

Corpus Christi. Bonilla also informed Bradshaw that he estimated attorney's fees in the

amount of $30,000 to $40,000 for the cost of litigation concerning the visitation of her

great-grandchildren. Bradshaw's affidavit identified a number of checks that she issued

to Bonilla for his representation of Bragg in certain custody and criminal matters. Asserting

in her response that there were fact issues regarding Bonilla's request for money for the

cash bond and for child support that allegedly did not exist and for other payments related

to her great-grandchildren, Bradshaw's evidence reveals a discrepancy in the amount of

money provided by Bradshaw to Bonilla—more than $700,000—and the monies disbursed

by Bonilla either for or to Bragg—approximately $430,000. Bradshaw averred that she did

not authorize the disbursement of monies to Bragg directly, some of which, according to

Bradshaw's affidavit, were used to purchase expensive jewelry and to pay Bragg's

boyfriend's ad valorem taxes. Bradshaw stated in her affidavit that she learned that the

monies were not used for attorney's fees in obtaining visitation with her great-grandchildren

or for a bond. Jeffrey Bragg's affidavit, also filed in support of Bradshaw's response,

established that Bonilla never mentioned or discussed a bond with him and that it was very

unlikely that any visitation of his sons with Bradshaw would be arranged because, as set

out in his affidavit, "under no circumstances would [his sons] be leaving the State of

Virginia, and any visitation, . . . in Virginia, would have to be made around their school and

summer schedules as well as [his] own."

       Based on our examination of the entire record in the light most favorable to

Bradshaw, indulging every reasonable inference and resolving any doubts against Bonilla's

motion, see Sudan, 199 S.W.3d at 292, and reviewing the no-evidence summary judgment

                                             15
for evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions, see Hamilton, 249 S.W.3d at 426, we conclude that Bradshaw presented

more than a scintilla of probative evidence to raise a genuine issue of material fact as to

each element of fraud. See Ernst & Young, 51 S.W.3d at 577. Thus, the trial court

improperly granted summary judgment if it did so on the grounds asserted in Bonilla's

no-evidence motion as to Bradshaw's fraud claim. See Moore, 981 S.W.2d at 269.

       Before shifting the burden to Bradshaw to come forward with competent

controverting evidence raising a genuine issue of material fact with regard to any fraud

elements challenged by Bonilla, see Steel, 997 S.W.2d at 223, we next turn to the

arguments and evidence presented in Bonilla's traditional motion for summary judgment

to determine whether he conclusively established his right to judgment as a matter of law

by negating at least one essential element of Bradshaw's fraud cause of action, thus,

satisfying his rule 166a(c) burden. Ridgway, 135 S.W.3d at 600; see TEX . R. CIV. P.

166a(c). Using language appropriate to a traditional summary judgment motion, Bonilla

specifically asserted only the following: "the evidence conclusively establishes that Bonilla

(1) never spoke to Ms. Bradshaw, (2) was never present when Kelly was asking her

grandmother for money, (3) and never dealt personally with Ms. Bradshaw." In his motion,

Bonilla urged that he met his burden and "is entitled to summary judgment as a matter of

law, by disproving by clear and convincing evidence, at least one essential element . . . [of]

fraud." Bonilla appears to be arguing that he disproved the misrepresentation element

because he allegedly had no personal interaction or contact with Bradshaw regarding the

matters at issue in this case. However, even assuming that the evidence Bonilla attached

to his motion established such facts, we cannot conclude that Bonilla has negated this

                                             16
element of Bradshaw's fraud claim. Bonilla provides us with no authority, and we find

none, that supports his argument that representations upon which a fraud claim is based

must be made through personal conversations, presence, or contact. In his traditional

motion for summary judgment, Bonilla challenges no other element of fraud.8 Thus, we

conclude that Bonilla's evidence failed to conclusively establish his right to judgment as a

matter of law by negating the misrepresentation element of Bradshaw's fraud cause of

action. Accordingly, we also conclude that the trial court improperly granted traditional

summary judgment in Bonilla's favor on Bradshaw's fraud claim, if it did so on this basis.

We sustain Bradshaw's second issue.

                                        4. Affirmative Defenses

        Because we will also affirm a summary judgment based on a defendant's traditional

motion if the record establishes that the defendant has conclusively established each

element of the affirmative defense as a matter of law, we now determine whether summary

judgment was proper as to Bradshaw's fraud claim based on Bonilla's affirmative defenses

of limitations or res judicata. See TEX . R. CIV. P. 166a(b), (c); Diaz, 9 S.W.3d at 803.

                                        a. Statute of Limitations

        By her third issue, Bradshaw contends that the trial court erred in granting summary

judgment on the basis of limitations because her claims are subject to the discovery rule.


         8
           Bonilla presents appellate argum ents challenging other elem ents of Bradshaw's fraud claim . The
purpose, however, of requiring that a m otion for sum m ary judgm ent state its specific grounds is to give fair
notice to the opponent and define the issues, and for that reason, a defendant-m ovant is not entitled to
sum m ary judgm ent on a ground or defense not asserted in his m otion, even where the sum m ary judgm ent
proof m ight conclusively establish his right to judgm ent on that ground. See Sledge v. Mullin, 927 S.W .2d 89,
95 (Tex. App.–Fort W orth 1996, no writ) (citations om itted). Here, we have addressed the grounds expressly
stated in Bonilla's m otion and conclude that he has failed to conclusively establish his entitlem ent to judgm ent
as a m atter of law by negating at least one essential elem ent of Bradshaw's fraud claim . See Elliott-W illiams
Co. v. Diaz, 9 S.W .3d 801, 803 (Tex. 1999) (citations om itted).

                                                       17
On appeal, each party argues that the other had the burden to establish, as a matter of

law, when Bradshaw discovered or should have discovered the nature of the injury and did

not do so.

       The checks at issue in this case were made payable by Bradshaw to Bonilla

between March 26, 2002 and August 25, 2003, and on August 17, 2004. Except for one

check, all complaints involve checks written prior to September 4, 2003.9 Bradshaw filed

her lawsuit against Bonilla on September 7, 2007.

       In his motion for summary judgment and in his response to Bradshaw's partial

motion for summary judgment, Bonilla asserted that Bradshaw's claims were barred by

limitations because the actions related to her claims took place more than four years

before suit was brought. See TEX . CIV. PRAC . & REM . CODE ANN . § 16.004(a)(5) (Vernon

2002) (providing for a four-year limitations period for a breach of fiduciary duty action); TEX .

CIV. PRAC . & REM . CODE ANN . § 16.004(a)(4) (Vernon 2002) (setting out that the statute of

limitations for fraud is four years); Willis v. Donnelly, 199 S.W.3d 262, 278 n.33 (Tex. 2006)

(providing that the statute of limitations for breach of fiduciary duty is four years); see

Exxon Corp. v. Emerald Oil & Gas Co., L.C., 39 Tex. Sup. Ct. J. 467, 2009 Tex. LEXIS

113, at *22 (Tex. Mar. 27, 2009) (explaining that "[t]he [four-year] statute of limitations for

fraud begins to run from the time the party knew of the misrepresentation"). In response

to Bonilla's limitations defense, although not pleaded in her petition, Bradshaw asserted

the discovery rule. Bonilla did not address the discovery rule after Bradshaw raised it in

her response.



       9
           The noted exception is a check dated August 17, 2004, issued by Bradshaw to Bonilla for $22,000.

                                                     18
       When moving for summary judgment on the affirmative defense of limitations, the

movant must conclusively establish that defense by (1) conclusively proving the date the

cause of action accrued, and (2) "negat[ing] the applicability of the discovery rule if it

applies and has been pleaded or otherwise raised, by proving as a matter of law that there

is no genuine issue of material fact about when the plaintiff discovered, or in the exercise

of reasonable diligence should have discovered the nature of its injury." KPMG Peat

Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999) (emphasis

added); Envtl. Procedures, Inc. v. Guidry, 282 S.W.3d 602, 622 (Tex. App.–Houston [14th

Dist.] 2009, pet. denied) (op. on rehr'g). It is undisputed that the discovery rule applies to

Bradshaw's fraud claims. See Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997)

(providing that the "discovery rule" applies in cases of fraud and fraudulent concealment).

       Relying on Via Net v. TIG Ins. Co., Bonilla asserts that because Bradshaw did not

amend her petition to include the discovery rule and only raised it in her summary judgment

response, and because the issue was then tried by consent, the burden switched to

Bradshaw to prove when she discovered or should have discovered the nature of the

injury. 211 S.W.3d 310, 313 (Tex. 2006) (per curiam). We disagree.

       Via Net is silent on this proposition. Rather, in Via Net, the supreme court explained

that "[w]hen [appellee] Safety Lights asserted the discovery rule for the first time in its

summary judgment response, Via Net had two choices: it could object that the discovery

rule had not been pleaded, or it could respond on the merits and try the issue by consent."

Id. Because it chose to respond on the merits and complained, in part, of the applicability

of the discovery rule, the rule's "applicability was placed squarely before the trial and



                                             19
appellate courts." Id. (citing TEX . R. CIV. P. 166a(c) ("Issues not expressly presented to the

trial court by written motion, answer or other response, shall not be considered on appeal

as grounds for reversal.") (emphasis added by supreme court)). Having determined that

the discovery rule applicability issue was properly raised as a basis for the summary

judgment and tried by consent, the supreme court overruled the court of appeal's

determination that the issue was not raised. The supreme court then addressed "whether

the discovery rule applie[d] to contract claims like the one asserted" in that case and

concluded that the discovery rule did not apply. Id. at 313-15.

       Under the facts of its breach-of-contract case, the Via Net court determined only that

Via Net raised the issue of applicability in its response to Safety Lights's discovery rule

claim and that the discovery rule did not apply; it did not conclude or imply, in any way, that

the burden of proof shifted to the non-movant in that case. Id. In fact, by its analysis, the

supreme court implied that, if no objection is made, the burden remains on the movant to

respond on the merits and prove, as a matter of law, when the plaintiff discovered or

should have discovered the nature of the injury. Bonilla's reliance on Via Net therefore is

misplaced. Based on the summary judgment law as set out in KPMG Peat Marwick,

because Bradshaw "otherwise raised" the discovery rule in her response, Bonilla had the

burden to conclusively negate the applicability of the discovery rule by proving as a matter

of law that there is no genuine issue of material fact about when Bradshaw discovered, or

in the exercise of reasonable diligence should have discovered the nature of her injury.

See 988 S.W.2d at 748; Proctor v. White, 172 S.W.3d 649, 651-652 (Tex. App.–Eastland

2005, no pet.).



                                              20
       At oral argument, Bonilla's counsel conceded that if the burden did not shift and

Bonilla retained the burden to negate the discovery rule, he did not do so. Accordingly, we

sustain Bradshaw's third issue and conclude that the trial court erred in granting Bonilla

summary judgment on Bradshaw's fraud claim if it did so on this basis.

                                     b. Res Judicata

       By her fourth issue, Bradshaw contends that her fraud claim is not barred by res

judicata. She asserts that Bonilla did not prove as a matter of law (1) that he was in privity

with Bragg in the 2005 suit discussed below or (2) that the present suit is based on the

same claims that were raised or could have been raised in the 2005 suit.

       As the summary judgment movant, it was Bonilla's burden to conclusively prove his

affirmative defense of res judicata. See Dardari v. Tex. Commerce Bank Nat'l Ass'n, 961

S.W.2d 466, 470 (Tex. App.–Houston [1st Dist.] 1997, no pet.).

       Res judicata is an affirmative defense that may support a summary judgment
       if the movant conclusively proves all the elements necessary to support the
       defense. Fernandez v. Memorial Healthcare Sys., Inc., 896 S.W.2d 227, 230
       (Tex. App.–Houston [1st Dist.] 1995, writ denied). Res judicata precludes
       relitigation of claims that have been finally adjudicated, or that arise out of
       the same subject matter and that could have been litigated in the prior
       action. Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992).
       Res judicata requires proof of the following elements: (1) a prior final
       judgment on the merits by a court of competent jurisdiction; (2) identity of
       parties or those in privity with them; and (3) a second action based on the
       same claims as were raised or could have been raised in the first action.
       Amstadt v. United States Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996).

Id.

       In the background section of his motion, Bonilla discussed a 2005 lawsuit brought

by Bradshaw against Bragg. He attached the petition and judgment from that case as




                                             21
exhibits to his summary judgment motion.10 As set out in the petition, Bradshaw alleged

that Bragg coerced her into issuing certain checks from an account at Navy Army Federal

Credit Union (NAFCU) and misrepresented to her that the checks were to be directly

deposited into Bragg's dentist's account as payment for Bragg's needed and excessive

dental work. Bradshaw sought a permanent injunction against Bragg to protect her from

a pattern of "exploitation and coercion" by restraining Bragg from, among other things,

"[c]ontacting [Bradshaw] in any manner" and "taking and/or accepting any checks, cash or

other property from . . . Bradshaw." The lawsuit sought damages of an unknown amount

in excess of $24,000. As a result of the 2005 lawsuit, an agreed judgment was entered

permanently enjoining Bragg from, among other things, contacting Bradshaw and taking,

from Bradshaw, checks, cash, or other property, including funds from any account at

NAFCU.

      After describing the 2005 lawsuit in his motion, Bonilla summarily applied res

judicata to Bradshaw's fraud claims as follows:

      Bradshaw sued . . . Bragg in 2005 and alleged the same pattern of facts
      (exploitation; obtaining checks and money under false pretenses) and
      received a [f]inal [j]udgment.    Bradshaw also recognizes that her
      granddaughter has spent or given away all the money she received. So
      [Bradshaw] now seeks to recover damages from Bonilla, as any further
      claims for damages against Kelly Bragg would be barred by res judicata.

      Based on our review of the record, we conclude that Bonilla did not conclusively

prove that his res judicata defense defeated Bradshaw's fraud claim. See id. The record

does not establish that Bonilla conclusively established each element of this affirmative

defense as a matter of law, specifically the third element—that Bradshaw's suit against

Bonilla was based on the same claims as were raised or could have been raised in the first


      10
        W e note that Bonilla was Bragg's legal counsel in this 2005 lawsuit.

                                                   22
action. See TEX . R. CIV. P. 166a(b), (c); Amstadt, 919 S.W.2d at 652. Although Bonilla

claimed that the same pattern of facts was alleged in the 2005 suit, he neither alleged nor

established that the second suit was based on the same claims as were raised or could

have been raised in the first action. Therefore, although the summary judgment was

granted generally in this case, we cannot affirm the judgment based on res judicata. We

sustain Bradshaw's fourth issue.

                                IV. MOTION FOR CONTINUANCE

       By her fifth issue, Bradshaw contends that the trial court erred in denying her motion

for continuance. She argues that "the deposition of Bonilla was needed in that Bonilla had

taken inconsistent positions in his Affidavits, indicating an admission of one or more of the

elements of fraud would be obtained in said deposition." Having sustained all issues

related to her fraud claim, we need not consider this final issue because it is not

"necessary to the final disposition of the appeal." TEX . R. APP. P. 47.1.

                                      V. CONCLUSION

       We affirm the judgment of the trial court on Bradshaw's breach of fiduciary duty

claim, and we reverse the judgment on her fraud claim and remand for proceedings

consistent with this opinion.


                                                    NELDA V. RODRIGUEZ
                                                    Justice

Delivered and filed the 28th
day of January, 2010.




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