                             NUMBER 13-12-00095-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

RAMIRO HERNANDEZ                                                             Appellant,

                                            v.


LAW OFFICE OF JOHN KING AND
QUALIFIED INTERMEDIARY, INC.,                                                Appellees.


               On appeal from the County Court at Law No. 7
                        of Hidalgo County, Texas.


                         MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      Appellant, Ramiro Hernandez, appeals a final summary judgment granted in

favor of appellees, Law Office of John King and Qualified Intermediary, Inc. (collectively,

“appellees”). We reverse and remand.
                                              I. BACKGROUND
        This case arises out of a 2003 sale of real estate in Starr County, Texas. Mis

Tres Properties, LLC executed a $70,000 promissory note and deed of trust in favor of

appellant in return for releasing a lien appellant held on a property Mis Tres was

attempting to sell to a third party. The Law Office of John King (“King”) drew up the

paperwork for the transaction, and Qualified Intermediary, Inc. (“Qualified”) held the

funds after Mis Tres completed the sale. By the time the sale closed, appellant had

been incarcerated on federal drug charges out of state and was unable to retrieve his

funds. Following his release, appellant filed claims against appellees, as well as Mis

Tres Properties, a limited liability company, Jamie Garcia (the principal of Mis Tres), and

Steve Deck for assumpsit, conversion, and fraud.1 In this case, appellant alleges that

appellees are vicariously liable for the actions of Deck, an employee of both King and

Qualified.    Appellant specifically alleges that, by various misrepresentations, Deck

prevented appellant’s wife from obtaining his funds after appellant sent her to Deck’s

office to obtain them, and that appellees eventually released the funds back to Garcia.

All of the appellees filed motions for summary judgment, which the trial court granted.

The trial court also granted King and Qualified’s motion for severance. This appeal

followed.

                                                 II. ANALYSIS
        A. Standard of Review
        We review summary judgments de novo. Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003); Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex.

App.—Corpus Christi 2002, no pet.). We take as true all evidence that is favorable to
        1
           We decide issues pertaining to appellant’s claims against Mis Tres, Garcia, and Deck today in
a companion case, Hernandez v. Garcia, No. 13-12-096-CV. A fuller explanation of the facts can be
found in the background section of that opinion.

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the nonmovant and indulge every reasonable inference and resolve all doubts in favor

of the non-moving party. Provident, 128 S.W.3d at 215; Southwestern Elec. Power Co.

v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). The moving party has the burden to show

that no genuine issues of material fact exist and that it is entitled to summary judgment

as a matter of law. TEX. R. CIV. P. 166a; Ortega v. City Nat’l Bank, 97 S.W.3d 765, 772

(Tex. App.—Corpus Christi 2003, no pet.). Summary judgment is proper if the movant

disproves at least one element of each of plaintiff’s claims or affirmatively establishes

each element of an affirmative defense. Ortega, 97 S.W.3d at 772 (citing Am. Tobacco

Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)).

      In a no-evidence summary judgment motion, the moving party contends that the

nonmovant has produced no evidence to support at least one element of a particular

claim for which the nonmovant would have the burden of proof at trial. TEX. R. CIV. P.

166a(i); See Ortega, 97 S.W.3d at 772. Unlike with a traditional motion, the adverse

party must respond with evidence, but it is not required to “marshal its proof; its

response need only point out evidence that raises a fact issue on the challenged

elements.” TEX. R. CIV. P. 166a(i) cmt. We review “the evidence in the light most

favorable to the non-movant, disregarding all contrary evidence and inferences.” King

Ranch v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003); Merrell Dow Pharms. Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-evidence summary judgment motion

must be reversed if the non-movant brought forth “more than a scintilla of probative

evidence on each challenged element of his claim.” Midwest v. Harpole, 293 S.W.3d

770, 775 (Tex. App.—San Antonio 2009, no pet.). More than a scintilla of evidence

exists where there is enough evidence to “enable reasonable and fair minded people to



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differ in their conclusions.” King Ranch, 118 S.W.3d at 751; Zapata v. Children’s Clinic,

997 S.W.2d 745, 747 (Tex. App.—Corpus Christi 1999, no pet.). Less than a scintilla

creates only a surmise or suspicion of the existence of a fact. King Ranch, 118 S.W.3d

at 751 (citing Merrell Dow Pharms., 953 S.W.2d at 711); In re Estate of Schiwetz, 102

S.W.3d 355, 361–62 (Tex. App.—Corpus Christi 2003, pet. denied).

      B. Applicable Law
      When a defendant moves for traditional summary judgment on the basis of the

affirmative defense of the statute of limitations, the movant bears the burden to

conclusively establish that the statute is applicable, including the date on which the

statute began to run. Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846

(Tex. 2005); Provident, 128 S.W.3d at 220.        Determining when a cause of action

accrued is a question of law. Provident, 128 S.W.3d at 221. In most cases, a cause of

action accrues, and the statute begins to run, “when a wrongful act causes a legal

injury, regardless of when the plaintiff learns of that injury or if all resulting damages

have yet to occur.” Id. (citing S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)). The statute

begins to run on the accrual date even if the injury is not discovered until later or all

damage resulting from the injury has not yet occurred. Id. In certain narrow cases,

however, the discovery rule defers accrual until a plaintiff “knew or, exercising

reasonable diligence, should have known of the facts giving rise to a cause of action.”

HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998). The supreme court

has ruled that the discovery rule applies where both “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 Assoc. Int’l, Inc. v. Altai, Inc., 918 S.W.3d 453, 456

(Tex. 1996)). The party moving for summary judgment on the basis of limitations must

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negate the discovery rule if it applies and has been plead by the nonmoving party.

Envtl. Procedures, Inc. v. Guirdy, 282 S.W.3d 602, 622 (Tex. App.—Houston [14th Dist.]

2009, pet. denied) (op. on rehr’g). A defendant moving for summary judgment on the

basis of the statute of limitations where the non-movant has pleaded the rule negates

the discovery rule by proving as a matter of law that there is no question of material fact

“about when plaintiff discovered, or in the exercise of reasonable diligence should have

discovered the nature of its injury.” KPMG Peat Marwick v. Harrison County Housing

Fin. Corp., 988 S.W.2d 746, 749 (Tex. 1999).

       C. Discussion
       Appellees filed a traditional motion for summary judgment as to appellant’s

breach of contract, assumpsit, and conversion claims, and a no-evidence motion as to

appellant’s common law fraud claim.2

               1. Claims for Assumpsit and Conversion
       Appellees’ motion on these two claims is materially identical to the motions filed

by Jamie Garcia (the principal of Mis Tres properties) and Deck and suffers from the

same defects. Our reasoning for reversing summary judgment can be found in the

companion case, and we will not repeat it here. See Hernandez v. Garcia, No. 13-12-

96-CV. The trial court erred in granting summary judgment to appellees on these two

claims.

               2. No Evidence Motion on Claim for Fraud
       In the no-evidence portion of their motion, appellees argued that appellant could

not provide evidence proving two of the elements of fraud. The elements of common-

       2
          The claim for breach of contract against King and Qualified appeared in appellant’s earlier
pleadings, but the Third Amended Petition appears to abandon the claim against King and Qualified and
proceeds only against Garcia and Mis Tres Properties. Therefore, we will not reach that part of King’s
motion.

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law fraud are: (1) a material representation; (2) that was false; (3) when the speaker

made the representation he knew it was false or made it recklessly without knowledge

of the truth and as a positive assertion; (4) the speaker made the representation

intending to induce the other part to act on it; (5) the party acted in reasonable reliance

on the representation; and (6) the party relying on the representation suffered injury. In

re First Merit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). Appellees argued in their

motion that appellant could not produce any evidence of the last two elements of fraud,

reliance and damages.

      In his response, appellant presented evidence in the form of an affidavit from his

wife that appellees’ employee, Deck, eventually represented to her that it would be

necessary for appellant to present himself in person to retrieve the funds even though

appellant had executed a power of attorney. Appellant also included a letter from King

to appellant representing that the funds had been released to Mis Tres Properties and

that Garcia would provide documentation of the federal government’s alleged seizure of

the funds. Furthermore, appellant’s own affidavit presents evidence that he took no

further action once appellee’s employee made that representation and that appellant

subsequently presented himself to retrieve the funds almost immediately after his

release from custody. Once he was unsuccessful, appellant retained the services of an

attorney.

      In the context of common-law fraud, a plaintiff can be induced to act or refrain

from acting by reliance on the alleged misrepresentation. TCA Bldg. Co. v. Entech, Inc.,

86 S.W.3d 667, 674 (Tex. App.—Austin 2002, no pet.) (citing Ernest & Young, L.L.P. v.

Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001)). Assuming the truth of



                                            6
appellant’s evidence as we must, we conclude that appellant has presented sufficient

evidence that he relied on the false representations allegedly made to him by refraining

from making further inquiries regarding his funds until he was able to present himself in

person. We also conclude that appellant presented sufficient evidence of damages,

because he presented uncontroverted evidence that he was owed $70,000 from the

proceeds of the sale, money that was eventually released back to Garcia.

      Appellees objected to the evidence appellant offered in response to the no-

evidence motion and now allege that appellant produced no competent summary

judgment evidence in response. We understand appellees as arguing that the trial court

impliedly sustained their objections to appellant’s summary judgment evidence and

appellant did not amend his response. See TEX. R. CIV. P. 166a(f). We disagree.

      This Court has ruled in the past that a trial court does not impliedly sustain a

movant’s objections simply by granting summary judgment. Jones v. Ray Insurance

Agency, 59 S.W.3d 739, 752–53 (Tex. App.—Corpus Christi 2001, pet. denied); see

also SSP Partners v. Gladstrong Invs. (USA) Corp., 169 S.W.3d 27, 34 (Tex. App.—

Corpus Christi 2005, aff’d on other grounds, 275 S.W.3d 444 (Tex. 2008)). We have

reviewed the court’s order granting summary judgment and the rest of the record and

have found no indication that the trial court acted on King’s objections. The order

simply recites that the court considered the motions, the evidence on file, the arguments

of counsel, and proceeds to grant the motion. In the absence of a written ruling or some

other indication in the record that the court acted on appellees’ objections, we find that

the affidavits were part of appellant’s summary judgment evidence. See Jones, 59

S.W.3d at 752–53; Schiwetz, 102 S.W.3d at 360-61; SSP Partners, 169 S.W.3d at 34.



                                            7
       In sum, we hold that appellant produced more than the scintilla of evidence

necessary to survive no-evidence summary judgment on his claim of common law

fraud, and we reverse the trial court’s grant of summary judgment on this issue.

                                          III. CONCLUSION
       We reverse the trial court’s entire order granting summary judgment and remand

to the trial court for further proceedings consistent with this opinion.



                                                  _______________________
                                                  NORA L. LONGORIA
                                                  Justice

Delivered and filed the
4th day of April, 2013.




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