Mary Moczygemba v. Thomas J. Moczygemba and Harry Lee Moczygemba ( 2015 )


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  •                                                                                               ACCEPTED
    04-14-00110-CV
    FOURTH COURT OF APPEALS
    SAN ANTONIO, TEXAS
    5/19/2015 8:06:08 PM
    KEITH HOTTLE
    CLERK
    NO. 04-14-00110-CV
    IN THE COURT OF APPEALS FOR THE            FILED IN
    4th COURT OF APPEALS
    FOURTH COURT OF APPEALS DISTRICT      SAN ANTONIO, TEXAS
    SAN ANTONIO, TEXAS          5/19/2015 8:06:08 PM
    __________________________________________________________________
    KEITH E. HOTTLE
    Clerk
    MARY MOCZYGEMBA,
    Appellant,
    v.
    THOMAS J. MOCZYGEMBA and HARRY LEE MOCZYGEMBA,
    Appellees.
    __________________________________________________________________
    APPELLANT’S MOTION FOR EN BANC RECONSIDERATION
    TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS:
    MARY MOCZYGEMBA, Appellant, files this Motion under Rule 49 Tex. R.
    App. P.
    Appellant’s Motion for Rehearing was denied on May 4, 2015. The opinion
    in this case holds that deeds to a fiduciary by a beneficiary of the fiduciary
    relationship are not evidence of an objectively verifiable injury.       Appellant
    believes that en banc reconsideration is vital here because the opinion: 1) impairs
    well-established Texas fiduciary law; 2) creates confusion in the law because it
    contradicts previous opinions of this Court without explanation; and 3) creates a
    dangerous precedent in the jurisprudence of elder abuse.
    1
    This Court Erred By Repudiating the Cardinal Rule That
    Transactions between a Fiduciary and a Beneficiary
    Are Presumptively Fraudulent and Tortious
    Unquestionably, the three deeds at issue in this case constituted transactions
    between Appellant and her fiduciaries. Unquestionably, the three transactions
    were objectively verifiable, because they are themselves specific documents.1
    Transactions between a fiduciary and the beneficiary of the fiduciary relationship
    are “presumptively fraudulent.” Jordan v. Lyles, -- S.W.3d --, 
    2015 WL 393791
    *4 (Tex.App.-Tyler 2015, no pet.); Lesikar v. Rappeport, 
    33 S.W.3d 282
    , 298
    (Tex.App.-Texarkana 2000, pet. denied); Chien v. Chen, 
    759 S.W.2d 484
    , 495
    (Tex.App.-Austin 1988, no writ).
    However, this Court repudiated the well-settled rule that the deeds are
    presumptively fraudulent when it erroneously held the following:
    While the deeds are evidence that Mary’s mineral interests passed to
    her sons, they are not evidence that the mineral interests were
    wrongfully transferred to her sons…. we cannot conclude that the
    mere transfer of mineral interests necessarily equates to Mary having
    suffered from a wrongful transfer of her property.
    [Op., at 11].
    This Court’s erroneous holding above also repudiated the well-established
    “presumption of unfairness” of “transactions between a fiduciary and a party to
    whom the fiduciary owes its duties.” Porter v. Denas, 
    2006 WL 1686515
    *5
    1
    Polk Mechanical Co., LLC v. Jones, 
    2009 WL 1900414
    *4 (Tex.App.-San Antonio 2009, pet.
    denied) (not for publication).
    2
    (Tex.App.-San Antonio, pet. denied) (not for publication); Lee v. Hasson, 
    286 S.W.3d 1
    , 21 (Tex.App.-Houston [14th Dist.] 2007, pet. denied); Miller v. Miller,
    
    700 S.W.2d 941
    , 946 (Tex.App.-Dallas 1985, writ ref'd n.r.e.).
    The common law deems the deeds to be injurious to Appellant, in and of
    themselves, subject to rebuttal proof by Appellees of “the fairness of the
    transaction.” Porter at *5. Because this Court made no mention of any evidence
    showing the fairness of the deeds to Appellant (and, in fact, did not even mention
    the legal concept of “fairness”), the effect of the above presumptions stand, and the
    deeds are fraudulent and tortious by default. The only way this Court could
    conclude that these deeds do not provide objectively verifiable evidence of the
    injury, is to repudiate these long-standing presumptions.
    This Court Erred by Focusing on the Beneficiary’s Intent While Ignoring
    The Fairness of the Transactions to the Beneficiary
    This Court ignored the issue of the fairness of the transactions and based its
    opinion solely on the allegedly unexpressed intent of Appellant:
    Mary herself testified that she wanted to transfer her property to her
    sons at a price lower than market value because they were her sons
    and they were helping her. … Mary agrees that at the time of the
    transfer of the property, there were no discussions about the mineral
    interests because she never thought about the mineral interests.
    [Op., at 11]. Texas case law, however, is clear that the determination of injury
    resulting from a transaction between a fiduciary and the beneficiary of the
    fiduciary relationship focuses solely on the fairness of the transaction, and the
    3
    beneficiary’s intent in the transaction is not determinative (and generally not even
    relevant).   In Kirkpatrick v. Cusick, 
    2013 WL 6730049
    *6 (Tex.App.-Corpus
    Christi 2013, pet. denied), the court of appeals held that the fiduciaries had failed
    to meet their burden of proving the fairness of their survivorship account
    transaction with the beneficiary of their fiduciary duties, and further that:
    even if [the beneficiary] knowingly and voluntarily named [the
    fiduciary] as a joint tenant with right of survivorship on the bank
    accounts, that fact by itself does not conclusively demonstrate that
    [plaintiff] could not prove her pleaded allegations that [the fiduciary]
    breached a fiduciary duty to [the beneficiary].
    
    Id. (emphasis added).
    Likewise, this Court in Sorrell v Elsey, 
    748 S.W.2d 584
    (Tex.App.-San Antonio 1988, writ denied), held that:
    Whether the complaining party in a fiduciary transaction understood
    the transaction in question is not the critical issue. … Under fiduciary
    circumstances, a claim that a transaction was adopted by the
    execution of a document in conjunction therewith does not
    preclude an inquiry into the fairness of the entire transaction and the
    imposition of the fiduciary burdens. Archer v. 
    Griffith, 390 S.W.2d at 739
    , 740.
    
    Id. at 586
    (emphasis added).
    The Court in Miller held that the fact that the beneficiary of the fiduciary
    relationship 1) read the contract with her fiduciary; 2) signed it; 3) asked no
    questions about it; and 4) intended to be bound by the contract was not relevant to
    the determination of the fairness of the transaction. 
    Miller, 700 S.W.2d at 943
    .
    4
    The Court held that the beneficiary’s intent was immaterial, and that the sole issue
    was the fairness of the transaction:
    Under the charge as submitted by the court, materiality of the
    nondisclosed facts did not depend on Judy's state of mind. The court
    defined “material fact” as a “fact which a reasonable person, under the
    same or similar circumstances, would attach importance to in
    determining his course of conduct or action.” If the facts known to
    Howard were “material” in this sense, he had a fiduciary duty to
    disclose them, and his breach of this duty cannot be excused on the
    ground that Judy has failed to establish her reliance on Howard's duty
    to disclose them.
    
    Id. at 948.
    This Court erred by doing the converse of the above three cases –
    ignoring the fairness of the transactions and determining the lack of a documented
    injury to Appellant based only on her unexpressed intent.
    This Court Erred By Contradicting Its Own Opinions
    Tolling Limitations in Breach of Fiduciary Duties Cases
    A.     Appellant cited Sorrell v Elsey, 
    748 S.W.2d 584
    (Tex.App.-San
    Antonio 1988, writ denied), a deed rescission case very similar to this one, for the
    following propositions: 1) the fact that Appellant may have understood that she
    was making a gift of some sort and consented to the gifts by signing the deeds was
    irrelevant to the determination of her injury; and 2) a gift deed from the beneficiary
    of the fiduciary relationship to the fiduciary is prima facie injury to the beneficiary.
    This Court completely ignored Sorrell and, in fact, held the opposite -- that the
    intent of the beneficiary determines whether she was injured, and that a gift deed to
    a fiduciary is not a prima facie injury.
    5
    B.     Similarly, Appellant cited Camp Mystic, Inc. v. Eastland, 
    390 S.W.3d 444
    (Tex. App.-San Antonio 2012, pet. granted, remanded by agr.), a lease case,
    for the propositions that 1) the discovery rule applies to transactions between a
    fiduciary and the beneficiary of the fiduciary relationship; and 2) the signing by a
    beneficiary of a contract with a fiduciary does not preclude an attack by the
    beneficiary on the contract for unfairness. This Court completely ignored Camp
    Mystic, and held the opposite, that the discovery rule does not necessarily apply to
    transactions between a fiduciary and a beneficiary; and that a beneficiary’s
    unexpressed intent precludes an attack on a written transaction with a fiduciary.
    This Court Erred In Applying the S.V. Opinion to This Case
    Appellant pled that Appellees breached their “fiduciary duty of full
    disclosure” by failing to disclose to Appellant “the ramifications of signing these
    deeds, in particular that [Appellant] would be giving up her mineral interests.”
    (CR1455). As shown below, the failure of a fiduciary to disclose material facts to
    the beneficiary has been characterized as both fraud and fraudulent concealment.
    Although S.V. v. R.V., 
    933 S.W.2d 1
    (Tex. 1996) was a repressed memory
    case and not a fiduciary transaction case, this Court cited it twenty times in its
    opinion. Clearly, S.V. provided the fundamental underpinning for its holding that
    Appellant’s injury was not objectively verifiable. The Supreme Court in S.V.,
    however, acknowledged that the typical discovery rule analysis, including the
    6
    requirement of an objectively verifiable injury, does not apply to cases “involving”
    fraud or fraudulent concealment:
    Strictly speaking, the cases in which we have deferred accrual of
    causes of action for limitations purposes fall into two categories:
    those involving fraud and fraudulent concealment, and all others.
    The deferral of accrual in the latter cases is properly referred to as the
    discovery rule. We observe the distinction between the two categories
    because each is characterized by different substantive and procedural
    rules. … Fraud, we have said, in and of itself prevents running of the
    statute of limitations … Restated, the general principle is this:
    accrual of a cause of action is deferred in cases of fraud or in
    which the wrongdoing is fraudulently concealed, and in discovery
    rule cases in which the alleged wrongful act and resulting injury were
    inherently undiscoverable at the time they occurred but may be
    objectively verified.
    
    Id. at 4
    (emphasis added).      Because this case involves fraud and fraudulent
    concealment, limitations was automatically tolled, the discovery rule does not
    apply, and there is no requirement of an objectively verifiable injury. Thus, the
    entire foundation for, and analysis in, this Court’s opinion is fundamentally
    erroneous. By requiring an objectively verifiable injury in a case involving fraud
    and fraudulent concealment, this Court’s opinion turns S.V. on its head, and holds
    the opposite of S.V.
    A fiduciary’s transactions with a beneficiary and failure to disclose material
    facts to a beneficiary are presumptively fraud:
    All transactions between a fiduciary and his principal are
    presumptively fraudulent and void; therefore, the burden lies on the
    fiduciary to establish the validity of any particular transaction in
    which he is involved. …          Silence is equivalent to a false
    7
    representation where circumstances impose a duty to speak and one
    deliberately remains silent. Spoljaric v. Percival Tours, Inc., 
    708 S.W.2d 432
    , 435 (Tex.1986). So, for there to be actionable
    nondisclosure fraud, there must be a duty to disclose. Bradford v.
    Vento, 
    997 S.W.2d 713
    , 725 (Tex.App.-Corpus Christi 1999, pet.
    granted); Hoggett v. 
    Brown, 971 S.W.2d at 487
    –88. Whether such a
    duty exists is a question of law. Bradford v. 
    Vento, 997 S.W.2d at 725
    . A duty to disclose may arise in four situations: (1) where there is
    a special or fiduciary relationship; …
    Lesikar v. Rappeport, 
    33 S.W.3d 282
    , 298-99 (Tex.App.-Texarkana 2000, pet.
    denied) (emphasis added). See also, Bright v. Addison, 
    171 S.W.3d 588
    , 599
    (Tex.App-Dallas 2005, pet. denied) (“The failure [of a fiduciary] to disclose
    constitutes fraud.”).
    A fiduciary’s failure to disclose material facts to a beneficiary of the
    fiduciary relationship is also fraudulent concealment:
    A breach of a fiduciary duty of disclosure is tantamount to
    concealment for limitations purposes. 
    Id. at 645;
    see 
    Seureau, 274 S.W.3d at 228
    (including as additional element of fraudulent
    concealment doctrine “a duty to disclose the wrong”). Thus, the
    statute of limitations for a breach of fiduciary duty claim does not
    begin to run until the claimant “knew or should have known of facts
    that in the exercise of reasonable diligence would have led to the
    discovery of the wrongful act.” Little v. Smith, 
    943 S.W.2d 414
    , 420
    (Tex.1997)
    Dernick Resources, Inc. v. Wilstein, 
    312 S.W.3d 864
    , 878 (Tex.App.–Houston [1st
    Dist.] 2009, no pet.) (emphasis added).
    A breach of a [fiduciary’s] duty to disclose is tantamount to
    concealment. 
    Id. Failure to
    disclose in such situations constitutes
    fraudulent concealment which will prevent the wrongdoer from
    perpetrating further fraud by using limitations as a shield.
    8
    Haas v. George, 
    71 S.W.3d 904
    , 913 (Tex.App.–Texarkana 2002, no pet.)
    (emphasis added).
    By S.V.’s express holding, the type of breach of fiduciary duty case
    presented here tolls limitations, regardless of the objectively verifiable prong of the
    discovery rule.
    By Ruling That Appellant’s Injury Cannot Be Objectively Verified, The
    Court Has Effectively Created a New Shield for Defalcating Fiduciaries
    This Court’s opinion is a classic example of “bad facts make bad law.”
    Collateral damage from the Court’s opinion will likely be significant. Essentially,
    the Court has rejected all of the burdens placed on fiduciaries to prove fairness and
    prove full disclosure - burdens that this Court has frequently recognized and
    enforced, and which satisfy the objectively verifiable prong. Instead, the Court has
    effectively classified Mary’s claim as just an unverifiable swearing match, because
    Mary had to document her intention to keep the minerals. This Court’s opinion
    turns the law of fiduciary duty on its head and switches the burden away from the
    fiduciary and back to the beneficiary, as in any arms-length case.               More
    importantly, this Court negated its own holding in Sorrell that “whether the
    complaining party in a fiduciary transaction understood the transaction in
    question is not the critical issue.” 
    Id. at 586
    . Here, the Court has determined that
    the critical issue is whether Mary understood the transaction: that is, she had to
    9
    understand that the minerals were being taken and objectively express that she
    wanted to keep her minerals.
    Essentially, this Court held that Mary could not objectively show that she
    intended to retain the minerals in order to satisfy the objectively verifiable prong.
    The Court specifically held that deposition testimony is not objectively verifiable:
    The evidence in this case consists of deposition testimony, which is
    not objectively verifiable evidence, and copies of the actual deeds
    showing a transfer of the mineral estate from Mary to Tommy and
    Harry, respectively. While the deeds are evidence that Mary’s mineral
    interests passed to her sons, they are not evidence that the mineral
    interests were wrongfully transferred to her sons.
    This statement by the Court effectively holds that no abusive gift, loan, sale,
    or transfer between a beneficiary and her fiduciary will ever be subject to the
    discovery rule. Apply this Court’s holding above to a deed given by an elderly
    beneficiary to her lawyer, to a check given to a close confidante, or to the signing
    of a survivorship account agreement at the request of a fiduciary. To trigger the
    discovery rule in those situations, the beneficiary would be forced by this Court to
    objectively prove that the transaction was not intended to be a gift, or not intended
    to be compensation, or not made for some other legitimate reason. And, the Court
    has effectively opined that one cannot show that the injury is objectively verifiable
    via the long recognized presumptions of fraud and unfairness or through testimony.
    How could any beneficiary ever meet that prong under this Court’s erroneous
    interpretation?
    10
    This Court’s opinion is potentially devastating to beneficiaries of fiduciary
    duty, especially to the elderly who are more apt to execute transactions without
    fully grasping what they are. Any time a fiduciary slips a piece of paper in front of
    his beneficiary, the clock will now run, even though the beneficiary may not know
    what he or she signed, or the true effect of signing the document and regardless of
    whether the transaction is unfair.      Because of this Court’s opinion, “sharp
    bargains,” like the one here, will become the new elder abuse game in town.
    WHEREFORE, Appellant prays that the Court consider this Motion, grant
    a reconsideration en banc, and grant general relief.
    Respectfully submitted,
    THE HARTNETT LAW FIRM
    By:    /s/ Jim Hartnett, Jr.
    Jim Hartnett, Jr.
    Texas Bar Card No. 09169200
    jim@hartnettlawfirm.com
    Will Hartnett
    Texas Bar Card No. 09170200
    will@hartnettlawfirm.com
    Fred Hartnett
    Texas Bar Card No. 00790833
    fred@hartnettlawfirm.com
    Melinda J. Hartnett
    Texas Bar Card No. 24032403
    2920 N. Pearl Street
    Dallas, Texas 75201
    Telephone (214) 742-4655
    Facsimile (214) 855-7857
    11
    ATTORNEYS FOR MARY MOCZYGEMBA,
    APPELLANT
    CERTIFICATE OF COMPLIANCE
    I hereby certify that the above document complies with the word count
    limits set forth in the amendments to the Texas Rules of Appellate Procedure. The
    document has a word count of 2,768.
    /s/ Jim Hartnett, Jr.
    Jim Hartnett, Jr.
    CERTIFICATE OF SERVICE
    I hereby certify that on the 19th day of May, 2015, a copy of the above and
    foregoing response was sent pursuant to T.R.A.P. Rule 9.5 to the following parties
    and counsel of record:
    Joyce W. Moore
    Langley & Banack, Inc.
    745 East Mulberry, Suite 900
    San Antonio, Texas 78212
    Telephone (210) 736-6600
    Facsimile (210) 735-6889
    jwmoore@langleybanack.com
    Attorneys for Thomas J. Moczygemba
    And Harry Lee Moczygemba
    /s/ Jim Hartnett, Jr.
    Jim Hartnett, Jr.
    12