Opinion issued July 9, 2019




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                           ————————————
                              NO. 01-18-00661-CV
                           ———————————
    COURTNEY SANDERS, INDIVIDUALLY, AND AS DEPENDENT
   ADMINISTRATOR OF THE ESTATE OF WILLIAM PAUL BROWN,
                         Appellant
                                       V.
                    CHARLOTTE HATHAWAY, Appellee



                   On Appeal from the 239th District Court
                           Brazoria County, Texas
                       Trial Court Case No. 87060-CV




                       MEMORANDUM OPINION

      Appellant Courtney Sanders, Individually, and as Dependent Administrator

of the Estate of William Paul Brown, appeals from the trial court’s order granting
summary judgment in favor of appellee, Charlotte Hathaway, on Sanders’s causes

of action for common law fraud, fraudulent inducement, breach of fiduciary duty,

and to set aside contracts. In two issues, Sanders contends that the trial court erred

in granting summary judgment on her claims because (1) a fact issue exists with

regard to her claims of lack of mental capacity and undue influence and (2) the

discovery rule and fraudulent concealment doctrine tolled the accrual of her causes

of action. We affirm.

                                    Background

      Sanders and Hathaway are sisters and the daughters of William Paul Brown.

Brown died on September 10, 2010.

      On June 10, 2016, Sanders filed suit against Hathaway asserting causes of

action for conversion, tortious interference with inheritance rights, fraudulent

inducement, common law fraud, breach of fiduciary duty. Sanders also sought to

set aside any distributions or transfers of, or change of beneficiary designations

regarding, real or personal property owned by Brown after January 2009 based on

Brown’s alleged lack of mental capacity to contract and undue influence exerted

over him by Hathaway. On November 16, 2016, Sanders filed her first amended

petition, omitting her conversion claim.




                                           2
      On November 3, 2017, Hathaway filed her first no-evidence motion for

summary judgment and second traditional motion for summary judgment.1 Sanders

filed her response to the motions on November 21, 2017. The summary judgment

evidence before the trial court, which included the transcripts of Sanders’s and

Hathaway’s depositions, Hathaway’s affidavit, certified copies of the deeds, and

Brown’s medical records, showed the following:

         • Prior to his death, Brown lived alone in a trailer on his property.
           Hathaway lived in a nearby mobile home on Brown’s property and
           Sanders lived more than 300 miles away.

         • Brown had a long history of heavy alcohol use and suffered from
           jaundice and cirrhosis of the liver. In addition to taking the pain
           medication, Darvon, Brown took Oxycontin during a two-week period
           in April or May 2010. When the Oxycontin caused him to hallucinate,
           Brown stopped taking the medication.

         • On March 17, 2010, approximately six months before he died, Brown
           changed the beneficiary designations on three of his four insurance
           policies, naming Hathaway as sole beneficiary (“beneficiary changes”).
           On his fourth policy, Sanders and Hathaway remained co-beneficiaries.

         • On March 17, 2010, Brown also executed four warranty deeds
           transferring his real property to Hathaway (“deeds”). The deeds, which
           were signed and notarized, were recorded in the property records of
           Brazoria County.

         • Five days later, on March 22, 2010, Brown executed documents at his
           financial institution, the Associated Credit Union, making his checking,
           savings, and share certificates accounts payable on death to Hathaway

1
      Hathaway previously filed a traditional motion for summary judgment which was
      denied on January 24, 2017.

                                        3
   (“payable on death accounts”). The beneficiary changes, deeds, and
   payable on death accounts disposed of all of Brown’s property except
   for household furnishings and personal effects.

• Sanders typically visited Brown four times a year and, in 2010, visited
  him twice. According to Sanders, Brown was able to care for himself,
  including feeding and dressing himself.

• In 2010, Hathaway visited Brown every day for approximately two
  hours, ensured that he took his medication, accompanied him to his
  doctor visits, made sure he had groceries, and occasionally cooked for
  him.

• When several of his friends passed away, Brown told Hathaway that he
  wanted to get his legal affairs in order. Brown, who could not type, sat
  next to Hathaway and gave her instructions while she created a
  declaration of trust and durable power of attorney using a will maker
  computer program. It is undisputed that the trust was never funded.

• On September 10, 2010, Brown died. On September 11, 2010,
  Hathaway told Sanders that their father had passed away.

• On September 12, 2010, two days after Brown’s death, Hathaway told
  Sanders that Brown did not have much when he passed away, and that
  what little remained he left to Hathaway in a trust.

• Sanders knew that she and Hathaway were to receive $10,000 each in
  life insurance proceeds but she did not know anything about Brown’s
  financial situation. Sanders also knew prior to Brown’s death that he
  had some property, but she did not know the nature and extent of it.

• In March 2014, Sanders learned from her uncle that Brown had assets
  worth approximately $1,000,000 before he died.

• On June 6, 2014, Sander’s attorney sent a letter to Hathaway requesting
  documentation concerning Brown’s deed transfers, beneficiary
  designations on his life insurance policies, and bank accounts.


                               4
            • On September 9, 2014, Sanders applied for the administration of
              Brown’s estate.

      Following a hearing, the trial court granted Hathaway’s no-evidence and

traditional summary judgment motions on June 26, 2018. On July 25, 2018, Sanders

filed a motion for new trial which was overruled by operation of law. This appeal

followed.

                                    Discussion

      On appeal, Sanders contends that the trial court erred in granting summary

judgment on her claims because (1) a fact issue exists with regard to her claims of

lack of mental capacity and undue influence, (2) the discovery rule and doctrine of

fraudulent concealment tolled the accrual of her causes of action, and (3) the

evidence is sufficient to create a fact issue on her claims of common law fraud and

breach of fiduciary duty.

   A. Standard of Review

      We review a trial court’s grant of summary judgment de novo. Travelers Ins.

Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When reviewing a summary

judgment motion, we must (1) take as true all evidence favorable to the nonmovant

and (2) indulge every reasonable inference and resolve any doubts in the

nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.

2003)). If a trial court grants summary judgment without specifying the grounds for
                                         5
granting the motion, we must uphold the trial court’s judgment if any one of the

grounds in the motion is meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d

145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

      In a traditional summary judgment motion, the movant has the burden to show

that no genuine issue of material fact exists and that the trial court should grant

judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.

Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant

moving for traditional summary judgment must conclusively negate at least one

essential element of each of the plaintiff’s causes of action or conclusively establish

each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d

910, 911 (Tex. 1997).

      In a no-evidence motion for summary judgment, the movant asserts that there

is no evidence to support an essential element of the nonmovant’s claim on which

the nonmovant would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i);

Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex. App.—Houston [1st Dist.] 2009, pet.

denied). The burden then shifts to the nonmovant to present evidence raising a

genuine issue of material fact as to each of the elements specified in the motion.

Hahn, 321 S.W.3d at 524; Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006).




                                          6
        Where, as here, a trial court grants a summary judgment involving both

no-evidence and traditional grounds, we ordinarily address the no-evidence grounds

first. See PAS, Inc. v. Engel, 350 S.W.3d 602, 607 (Tex. App.—Houston [14th Dist.]

2011, no pet.). However, if we conclude that we must affirm the trial court’s

summary judgment ruling on traditional grounds, we need not review the

no-evidence grounds. Davis-Lynch, Inc. v. Asgard Techs., LLC, 472 S.W.3d 50, 59

(Tex. App.—Houston [14th Dist.] 2015, no pet.); Wilkinson v. USAA Fed. Sav. Bank

Trust Servs., No. 14–13–00111–CV, 2014 WL 3002400, at *5 (Tex. App.—Houston

[14th Dist.] July 1, 2014, pet. denied) (mem. op.) (affirming summary judgment on

traditional grounds, without considering alternative no-evidence grounds, where

evidence conclusively proved defendants were entitled to judgment as matter of

law).

        “A defendant moving for summary judgment on the affirmative defense of

limitations bears the burden of conclusively establishing the elements of that

defense.” Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 833–34 (Tex. 2018)

(citing KPMG Peat Marwick, 988 S.W.2d at 748). “This includes conclusively

establishing when the cause of action accrued.” Id. “In cases in which the plaintiff

pleads the discovery rule, the defendant moving for summary judgment on

limitations bears the additional burden of negating the rule.” Id. at 834; Childs v.

Haussecker, 974 S.W.2d 31, 44 (Tex. 1998). Defendants may do this by either

                                         7
conclusively establishing that (1) the discovery rule does not apply, or (2) if the rule

applies, the summary judgment evidence negates it. KPMG Peat Marwick, 988

S.W.2d at 748; Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223–24 (Tex. 1999).

   B. Sanders’s Claim to Set Aside the Documents

      In her first amended petition, Sanders sought to set aside (1) the March 17,

2010 changes to the beneficiary designations on three of Brown’s four insurance

policies naming Hathaway as sole beneficiary; (2) the March 17, 2010 execution of

four warranty deeds transferring his real property to Hathaway; and (3) the March

22, 2010 execution of documents making Brown’s checking, savings, and share

certificates accounts payable on death to Hathaway. Sanders argues that these

documents are invalid because (1) Brown lacked mental capacity at the time he

executed the documents and (2) Hathaway exerted undue influence over Brown.

      In her summary judgment motion, Hathaway argued that (1) there was no

evidence that Brown lacked the mental capacity to execute the documents, and that

the evidence conclusively established as a matter of law that he did not lack the

mental capacity to do so, and (2) there was no evidence that she exerted undue

influence over Brown at the time he executed the documents. Hathaway further

argued that Sanders’s claims of mental incapacity and undue influence were barred

by the applicable statute of limitations, and that neither the discovery rule nor a claim

of fraudulent concealment tolled limitations on her claim to set aside the contracts.

                                           8
      In her summary judgment response, Sanders argued that there is sufficient

evidence to create a fact issue regarding whether Brown lacked the mental capacity

to execute the documents and whether Hathaway exerted undue influence at the time

of execution. She also argued that her claim seeking to set aside the documents

based on lack of mental incapacity and undue influence is not barred by the statute

of limitations because the discovery rule and fraudulent concealment doctrine tolled

their accrual. We address the limitations argument first.

   1. Statute of Limitations

      “It is settled law in Texas that a contract executed by a person who lacks

mental capacity is voidable, not void.” Cole v. McWillie, 464 S.W.3d 896, 900 (Tex.

App.—Eastland 2015, pet. denied) (citing Williams v. Sapieha, 61 S.W. 115, 116

(1901)); see also Kinsel v. Lindsey, 526 S.W.3d 411, 419 (Tex. 2017) (“Documents

executed by one who lacks sufficient legal or mental capacity may be avoided.”). A

cause of action to void a contract is personal and belongs to the parties to a contract.

See Wells v. Dotson, 261 S.W.3d 275, 284 (Tex. App.—Tyler 2008, no pet.). The

right to disaffirm a contract survives the death of an incompetent person and

descends to his heirs or his personal representative. See McWillie, 464 S.W.3d at

899–900 (citing Bennett v. Romos, 252 S.W.2d 442, 448–49 (1952)).

      The right to disaffirm is subject to a four-year statute of limitations. TEX. CIV.

PRAC. & REM. CODE § 16.051; McWillie, 464 S.W.3d at 900; Dyer v. Dyer, 616

                                           9
S.W.2d 663, 665 (Tex. App.—Corpus Christi 1981, writ dism’d) (“[T]he four-year

statute of limitations governs voidable deeds.”). Texas Civil Practice and Remedies

Code section 16.062 suspends the running of an applicable limitations period for

twelve months after the death of a person against whom or in whose favor there may

be a cause of action. See TEX. CIV. PRAC. & REM. CODE § 16.062(a). Thus, Sanders

had to bring her cause of action to set aside the contracts executed by Brown no later

than five years from the date of their execution.

       Here, even if the beneficiary designation changes, deed transfers, and

accounts payable on death were voidable because Brown lacked the mental capacity

to execute them or was subjected to undue influence, the right to disaffirm those

contracts ran on March 17, 2015 and March 22, 2015—five years from the March

17, 2010 and March 22, 2010 execution dates. Sanders did not file her lawsuit until

June 10, 2016.

   2. Discovery Rule

       Sanders argues that her claim to set aside the contracts is not barred because

the discovery rule applies and deferred accrual of her claim.

       Ordinarily, a cause of action accrues when “a wrongful act causes a legal

injury, even if the fact of injury is not discovered until later, and even if all resulting

damages have not yet occurred.” Sw. Energy Prod. Co. v. Berry–Helfand, 491

S.W.3d 699, 721 (Tex. 2016). Absent some exception, injuries that arise or develop

                                            10
after the legal injury are still deemed to have accrued on the same date as the legal

injury that caused them. See Pasko, 544 S.W.3d at 834.

      The discovery rule is a very limited exception to statutes of limitations. See

Computer Assocs. Int’l Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996). If the

discovery rule applies, it only defers accrual of a cause of action until the plaintiff

knew or in the exercise of reasonable diligence should have known of the wrongful

act and resulting injury, not when the plaintiff knows the specific nature of each

wrongful act that may have caused the injury. Pasko, 544 S.W.3d at 834; KPMG

Peat Marwick, 988 S.W.2d at 749; see also ExxonMobil Corp. v. Lazy R Ranch, LP,

511 S.W.3d 538, 542–43 (Tex. 2017) (“[A] claim accrues when injury occurs, not

afterward when the full extent of the injury is known.”). A plaintiff need not need

to know that she has a cause of action; rather, she must only know “the facts giving

rise to the cause of action.” Computer Assocs. Int’l, 918 S.W.2d at 457.

      The rule applies to classes of claims in which the alleged wrongful act and

resulting injury were both inherently undiscoverable at the time they occurred and

may be objectively verified. See S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996). An

injury is inherently undiscoverable if it is the type of injury that is not generally

discoverable by the exercise of reasonable diligence. HECI Expl. Co. v. Neel, 982

S.W.2d 881, 886 (Tex. 1998). That is, an injury is not inherently undiscoverable if

it could be discovered through the exercise of reasonable diligence. See BP Am.

                                          11
Prod. Co. v. Marshall, 342 S.W.3d 59, 66 (Tex. 2011). To be objectively verifiable,

a claim must be subject to demonstration by direct, physical evidence. See S.V., 933

S.W.2d at 7.

      In her summary judgment motion, Hathaway argued that Sanders, by her own

admission, knew all of the facts that gave rise to her cause of action to set aside the

beneficiary designation changes, deed transfers, and accounts made payable on death

by September 12, 2010. In support of her argument, Hathaway pointed to Sanders’s

testimony that she knew, prior to Brown’s death, that he owned some property, he

was sick, he was an alcoholic that drank every day, he was taking pain medication,

he had experienced hallucinations in the months before he died, and that Hathaway

was his primary caretaker in the year before he died. Sanders also testified that, two

days after Brown’s death, she learned from Hathaway that their father did not have

much when he passed away, and that other than fifty percent of one life insurance

policy, he left what remained of his assets to Hathaway.

      In her summary judgment response and on appeal, Sanders admits that she

knew Brown had property but that she “had absolutely no idea of the nature and

extent of such property.” She argues that she “did not know and could not have

known exactly when the beneficiary designations and bank accounts were changed,

or when the property was transferred.” However, the summary judgment evidence

demonstrates that Sanders only began investigating the extent and nature of Brown’s

                                          12
assets and later filed suit after she learned from an uncle that Brown had assets worth

approximately $1,000,000 before he died. Sanders knew of her alleged injury, i.e.,

that Brown gave almost all of his property to Hathaway and left her virtually nothing,

on September 12, 2010, two days after Brown died.         It is the fact of the alleged

injury—that Hathaway kept property that Sanders may have been entitled to—that

started the running of the statute of limitations. See, e.g., Johnson v. Walker, 824

S.W.2d 184, 187 (Tex. App.—Fort Worth 1991, writ denied) (“The fact that a party

may not immediately be able to determine the total amount of damages it may suffer

does not toll the statute of limitations.”). Once Sanders knew of facts that might

constitute some injury, the statute of limitations began to run even if she did not yet

know “the specific cause of the injury; the party responsible for it; the full extent of

it; or the chances of avoiding it.” Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d

194, 207 (Tex. 2010). That Sanders did not know the extent of her alleged injury,

i.e., the dollar value of Brown’s assets, is irrelevant to determining when the statute

of limitations began to run. Yalamanchili v. Mousa, 316 S.W.3d 33, 38 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied) (“[A]ccrual occurs upon notice of injury,

even if the claimant does not yet know the full extent of damages.”) (quoting

Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 270 (Tex. 2004)). Thus,

applying the discovery rule, the four-year statute of limitations (plus the additional

year due to Brown’s death) began to run from the date Sanders knew of her legal

                                          13
injury, i.e. September 12, 2010. The statute of limitations ran by September 12,

2015, nine months before Sanders filed her suit on June 10, 2016.

   3. Fraudulent Concealment

      Sanders also argues the doctrine of fraudulent concealment tolled the statute

of limitations on her cause of action to set aside the documents.

      The doctrine of fraudulent concealment is based on the doctrine of equitable

estoppel.   Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1981).            Fraudulent

concealment estops a defendant from relying on the statute of limitations as an

affirmative defense when the defendant owes a duty to disclose but fraudulently

conceals the existence of a cause of action. Id. “A party asserting fraudulent

concealment must establish an underlying wrong, and that ‘the defendant actually

knew the plaintiff was in fact wronged, and concealed that fact to deceive the

plaintiff.’” BP Am. Prod. Co., 342 S.W.3d at 67 (quoting Earle v. Ratliff, 998

S.W.2d 882, 888 (Tex. 1999); Weaver v. Witt, 561 S.W.2d 792, 793 (Tex. 1977) (per

curiam)); see Lilly v. Tex. Dep’t of Crim. Justice, 472 S.W.3d 411, 420 (Tex. App.—

Houston [14th Dist.] 2015, no pet.) (“The elements of fraudulent concealment are:

(1) existence of an underlying tort; (2) the defendant’s knowledge of the tort; (3) the

defendant’s use of deception to conceal the tort; and (4) the plaintiff’s reasonable

reliance on the deception.”).     A party asserting fraudulent concealment as an

affirmative defense to the statute of limitations bears the burden to raise it in

                                          14
response to the summary judgment motion and to come forward with summary

judgment evidence raising a fact issue on each element of the defense. KPMG Peat

Marwick, 988 S.W.2d at 749.

      “Fraudulent concealment only tolls the running of limitations until the fraud

is discovered or could have been discovered with reasonable diligence.” BP Am.

Prod., 342 S.W.3d at 67. If the fraudulent concealment is based on a fraudulent

representation by the defendant, the plaintiff must demonstrate that reliance on that

representation was reasonable. See id. at 68. Reliance on a fraudulent representation

“is not reasonable when information revealing the truth could have been discovered

within the limitations period.” Id.

      In her summary judgment response, Sanders argued that there was sufficient

evidence of each element of fraudulent concealment because (1) Hathaway told her

facts that were not true two days after their father died, (2) when Sanders began

investigating a potential cause of action against Hathaway, Hathaway knowingly and

intentionally refused to provide any information, (3) and Hathaway did so with a

fixed purpose of concealing the wrongs she committed before their father’s death.

Taking Sanders’s factual allegations as true, see Valence Operating Co., 164 S.W.3d

at 661, they do not raise a fact issue as to the existence of an underlying wrong.

Sanders’s assertions that Hathaway told her facts that were not true, refused to

provide her with information, and did so with the purpose of concealing her alleged

                                         15
wrongdoing might provide the element of deception, but they are not evidence of an

underlying wrong. See Lazy R Ranch, 511 S.W.3d at 544 (concluding fraudulent

concealment doctrine did not toll limitations period on ranch owners’ claim of

surface contamination against petroleum company where there was no evidence of,

among other things, misconduct on company’s part with respect to spills on property

or at abandoned sites).

      In sum, Sanders’s cause of action to set aside Brown’s beneficiary designation

changes, deed transfers, and making of accounts payable on death ran on March 17,

2015 and March 22, 2015—five years from the March 17, 2010 and March 22, 2010

execution dates. Applying the discovery rule, Sanders’s claim began to run from the

date Sanders knew of her legal injury, i.e. September 12, 2010, and, under the

applicable four-year statute of limitations plus the additional year due to Brown’s

death, her claim ran by September 12, 2015. Finally, the doctrine of fraudulent

concealment did not toll limitations on Sanders’s claim because there is no evidence

in the record that Brown’s actions in transferring assets to Hathaway were the result

of wrongful conduct on Hathaway’s part. We conclude that the trial court did not

err in granting summary judgment on Sanders’s claim to set aside the documents.

   C. Sanders’s Fraud Claim

      Sanders contends that the trial court erred in granting summary judgment on

her claim of common law fraud because the evidence is sufficient to raise a fact issue

                                         16
on all of the elements of her claim. Hathaway argues that Sanders has presented no

evidence to support her fraud claim.

       To prove fraud, Sanders must establish that (1) a material misrepresentation

was made; (2) the representation was false; (3) when the representation was made,

the speaker either knew it was false or made the statement without knowledge of the

truth; (4) the speaker intended the representation to be acted upon; (5) the party acted

in reliance upon the representation; and (5) the party suffered injury. Zorrilla v.

Aypco Constr. II, LLC, 469 S.W.3d 143, 153 (Tex. 2015) (quoting Formosa Plastics

Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998)).

In her summary judgment response, Sanders argued that the evidence showed that

(1) Hathaway told Sanders that Brown had left his entire estate to Hathaway in a

trust but then failed and refused to disclose the trust documents to her; (2)

Hathaway’s representation was false because the purported trust was never funded;

(3) Hathaway intended Sanders to rely on the representation and not take action

regarding Brown’s estate; (4) Sanders justifiably relied on Hathaway’s

representation and did not take action until much later; and (5) Sanders suffered

injury because she did not obtain any part of her father’s estate to which she is justly

entitled.

       A material representation is one which “a reasonable person would attach

importance to and would be induced to act on . . . in determining his choice of actions

                                          17
in the transaction in question.” Italian Cowboy Partners, Ltd. v. Prudential Ins. Co.

of Am., 341 S.W.3d 323, 337 (Tex. 2011) (quoting Smith v. KNC Optical, Inc., 296

S.W.3d 807, 812 (Tex. App.—Dallas 2009, no pet.)); Samson Lone Star Ltd. P’ship

v. Hooks, 497 S.W.3d 1, 13–14 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

Hathaway’s representation to Sanders—that Brown conveyed his entire estate to

Hathaway through a trust rather than through beneficiary designations changes to

his insurance policy, deed transfers, and making his accounts payable on death—is

not a material misrepresentation. It is undisputed that Brown conveyed his property

to Hathaway—that he did so through beneficiary changes, deed transfers, and

making his accounts payable on death, rather than through the instrument of a trust,

is immaterial. Further, Sanders has not shown how she was injured as a result of the

representation. Her alleged injury, i.e., that she did not obtain any part of her father’s

estate to which she is justly entitled, was not caused by Hathaway’s representation

that Brown conveyed his estate to her through a trust. Rather, it is the fact that

Brown left his property to Hathaway in the first place that caused her injury, if any.

      Because there is no evidence of a material representation or injury, we

conclude that the trial court did not err in granting summary judgment on Sanders’s

common law fraud claim.




                                           18
   D. Sanders’s Fraudulent Inducement Claim

      In her brief, Sanders states that Hathaway did not challenge Sanders’s claim

for fraudulent inducement. In her summary judgment motion, Hathaway argued that

Sanders’s cause of action for fraudulent inducement failed as a matter of law because

Sanders and Hathaway did not enter into a contract together and no cause of action

exists for general fraudulent inducement.

      Fraudulent inducement is a distinct category of common-law fraud that shares

the same elements but involves a promise of future performance made with no

intention of performing at the time it was made. Zorrilla, 469 S.W.3d at 153. To

prevail in a fraudulent inducement claim, the plaintiff not only must establish all of

the elements of a fraud claim, but must establish those elements “as they relate to an

agreement between the parties.” Haase v. Glazner, 62 S.W.3d 795, 798–99 (Tex.

2001). Because we conclude that Sanders did not establish all of the elements of her

fraud claim, much less as they relate to an agreement with Hathaway, the trial court

properly granted summary judgment on this claim.

   E. Sanders’s Breach of Fiduciary Duty Claim

      Sanders contends that the trial court erred in granting summary judgment on

her claim of breach of fiduciary duty because the evidence is sufficient to raise a fact

issue on the elements of her claim.




                                          19
      To prove breach of fiduciary duty, Sanders must establish that (1) a fiduciary

relationship existed between the plaintiff and the defendant; (2) the defendant

breached her fiduciary duty; and (3) the breach resulted in injury to the plaintiff or

benefit to the defendant. Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied). In her summary judgment response,

Sanders argued that the evidence showed that (1) an informal fiduciary duty existed

between Brown and Hathaway; (2) Hathaway breached her fiduciary duty to Brown

by transferring the entirety of Brown’s estate to herself; and (3) Hathaway’s breach

was detrimental to Brown and Sanders.

      Contrary to Sanders’s assertion, there is no evidence that Hathaway

“transferred the entirety of Brown’s estate to herself.” The evidence shows that, on

March 17, 2010, Brown changed the beneficiary designations on three of his four

insurance policies to Hathaway but left Sanders and Hathaway as co-beneficiaries

under one of his policies. That same day, Brown also executed four warranty deeds

transferring his real property to Hathaway, and the deeds were signed and notarized

before a notary public. Five days later, on March 22, 2010, Brown went to his credit

union and executed documents in front of credit union employees to make his

checking, savings, and share certificated accounts payable on death to Hathaway.

This evidence shows that Brown, not Hathaway, distributed his property to

Hathaway.

                                         20
      Because Sanders has not produced any evidence showing that Hathaway

breached a fiduciary duty to Brown, summary judgment on her breach of fiduciary

duty claim was proper. 2 Accordingly, we overrule Sanders’s first and second issues.

                                     Conclusion

      We affirm the trial court’s judgment.




                                               Russell Lloyd
                                               Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




2
      The trial court granted summary judgment on Sanders’s claim of tortious
      interference with inheritance. The Texas Supreme Court recently held that
      “[b]ecause existing law affords adequate remedies for the wrongs [tortious
      interference with inheritance] would redress, and because the tort would conflict
      with Texas probate law, we hold that there is no cause of action in Texas for
      intentional interference with inheritance.” Archer v. Anderson, 556 S.W.3d 228,
      229 (Tex. 2018). Presumably in light of Archer, on appeal Sanders does not
      challenge the trial court’s grant of summary judgment on her tortious interference
      with inheritance claim.
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