Sharleen Wilson Allen v. Bryon Wilson

ACCEPTED
06-15-00060-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
12/18/2015 10:52:19 AM
DEBBIE AUTREY
CLERK
NO. 06-15-00060-CV
FILED IN
6th COURT OF APPEALS
STATE OF TEXAS TEXARKANA, TEXAS
12/18/2015 10:52:19 AM
COURT OF APPEALS
DEBBIE AUTREY
SIXTH DISTRICT OF TEXAS AT TEXARKANA Clerk
SHARLEEN WILSON ALLEN, Appellant
v
BRYON WILSON, Appellee
Appeal from the 6th District Court,
The Honorable Eric S. Clifford, Presiding
BRIEF OF APPELLANT, SHARLEEN WILSON ALLEN
ORAL ARGUMENT REQUESTED
Charles Cotropia
2001 Ross Avenue
Suite 3600
Dallas, Texas 75201
Phone 214 981-3305
Fax 214 981-3400
ccotropia@sidley.com
Ron Uselton
402 W. Lamar, Ste. 101
Sherman, Texas 75090
Phone 903 893-9624
Fax 903.813.0306
ronuse@aol.com
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Texas Rule of Appellate Procedure 38.1(a), Appellant presents the following
list of all parties and names and addresses of counsel:
Plaintiff/Appellant: Counsel:
Sharleen Wilson Allen Charles Cotropia
Texas Bar No. 04858600
2001 Ross Avenue
Suite 3600
Dallas, Texas 75201
Phone 214 981-3305
Fax 214 981-3400
ccotropia@sidley.com
Ron Uselton
Texas Bar No. 20415775
402 W. Lamar, Ste. 101
Sherman, Texas 75090
Phone 903 893-9624
Fax 903 813-0306
ronuse@aol.com
Defendant/Appellee: Counsel:
Bryon Allen Donald Johnston
Texas Bar No. 10834550
306 N. Travis Street, Ste. 102
Sherman, Texas 75090
Phone 903 891-9840
Fax 903 891-4051
DJohnston50@verizon.net
Scott Smith
Texas Bar No.18688900
120 South Crockett Street
P.O. Box 354
Sherman, Texas 75091-0354
smithlaw@airmail.net
Phone (903) 868-8686
Fax (903) 870-1446
TABLE OF CONTENTS
STATEMENT OF THE CASE ....................................................................................................... 1
STATEMENT REGARDING ORAL ARGUMENT..................................................................... 1
ISSUES PRESENTED.................................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 1
A. Introduction ............................................................................................................. 1
B. The Facts ................................................................................................................. 2
SUMMARY OF THE ARGUMENT ............................................................................................. 6
ARGUMENT .................................................................................................................................. 6
A. The Appellee Carries the Burden of Pleading, Proving and Securing Findings
to Support His Motion for Summary Judgment .......................................................6
B. Appellee’s Motion For Summary Judgment Should have been Denied For
Failure To Meet The Burden Of Showing that the Appellant’s Causes Of
Action Did Not Accrue Within the Limitations Period ...........................................7
C. Appellee failed to Establish that the Causes of Action Based on Fraud accrued
outside the applicable 4 year Statute of Limitations. ...............................................8
D. Appellee’s Acts have Caused an Ongoing Ever Increasing Injury that Precludes
the Running of either the 4 year or 2 years Statute of Limitations. .......................10
E. Appellant was Not Aware of Appellee’s Wrongful Recording of the Grayson
County Judgment against her Red River County Property and Had No Reason
to Be Aware of Same before Commencement of the Limitations Periods. ...........13
PRAYER FOR RELIEF ............................................................................................................... 15
APPENDIX ....................................................................................Error! Bookmark not defined.
i
TABLE OF AUTHORITIES
Cases
Abbott v. City of Kaufman, 717 S.W.2d 927 (Tex.App.-Tyler 1986, no writ) ...........................7, 8
Adler v. Beverly Hills Hosp., 594 S.W.2d 153 (Tex.Civ.App.1980, no writ)...............................13
City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.
1979) ..........................................................................................................................................7
Cormier v. Highway Trucking Co., 312 S.W.2d 406, 407 (Tex.Civ.App. San
Antonio 1958, no writ).............................................................................................................10
Creswell Ranch & Cattle Co. v. Scoggins, 39 S.W. 612 (Tex.Civ.App.1897, no
writ). .........................................................................................................................................12
Delgado v. Burns, 656 S.W.2d 428 (Tex. 1983)....................................................................7, 8, 10
Franzetti v. Franzetti, 120 S.W.2d 123 (Tex.Civ.App.1938, no writ) ...........................................13
Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex. 1970)......................................7
Gottlieb v. Hofheinz, 523 S.W.2d 7 (Tex.Civ.App.-Houston 1975, writ dism’d).......................7, 8
Hartnett v. Adams & Holmes Mortgage Co., 539 S.W.2d 181, 184 (Tex.Civ.App.
Texarkana 1976, no writ) .........................................................................................................10
Holmes v. Canlen Management Corp., 542 S.W.2d 199 (Tex.Civ.App.-El Paso
1976, no writ) .........................................................................................................................7, 8
Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514
(Tex. 1998) .................................................................................................................................7
Mart. v. Phillips Petroleum Co., 455 S.W.2d 429, 436 (Tex.Civ.App. Houston
(14th Dist.) 1970, no writ) ......................................................................................................10
Millers Mutual Fire Insurance Co. v. Mitchell, 392 S.W.2d 703, 705
(Tex.Civ.App. Tyler 1965, no writ) .........................................................................................10
Missouri-Kansas-Texas Railroad Co., v. City of Dallas, 623 S.W.2d 296, 298
(Tex. 1981) ...............................................................................................................................14
Peggy Woods, C.R.N.A., v. William M. Mercer, et al., 769 S.W.2d 515, 518
(1988) .......................................................................................................................................14
Pitts v. Ennis & Reynolds, 1 Tex. 604, 605 (1846) .......................................................................10
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003) ...........................7
ii
Solares v. Solares, 232 S.W.3d 873, 878 (Tex.App.—Dallas 2007, no pet.) ..............................6, 7
Twyman v. Twyman, 790 S.W.2d 819, 821 ............................................................................11, 13
Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993) ................................................................11, 13
Weaver v. Will, 561 S.W.2d 792 (Tex. 1977) .......................................................................6, 7, 14
Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988) ......................................6, 7
Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975) .....................................................6, 7
Statutes
Civil Practice and Remedies Code, §16 et seq. .............................................................................11
Civil Practice and Remedies Code § 16.004 ..................................................................................11
Chapter 16 of the Texas Civil Practice and Remedies Code .........................................................11
Other Authorities
Tex. Civ. Proc. Rule 166a(c). ........................................................................................................10
Tex.R. Civ. P. 94 ....................................................................................................................6, 7, 14
Tex.R.Civ.P. 166a(c) .......................................................................................................................7
iii
RECORD REFERENCES
The Court Record is referred to as “CR ___ (page number).”
The Reporter’s Record of the hearing on Appellee’s Motion for Summary Judgment is referred
to as “RR ___ (page number).”
iv
STATEMENT OF THE CASE
This appeal is from a Judgment entered August 22, 2015 (Appendix; CR212), by the
Honorable Eric S. Clifford, on Appellee‘s First Motion for Summary Judgment (CR 60-70) and
Appellee’s Amended First Motion for Summary Judgment (CR 197-207) that Appellant’s claims
against Appellee were barred by applicable statutes of limitations.
STATEMENT REGARDING ORAL ARGUMENT
While Appellant believes that the trial court’s error in granting Summary Judgment based
on the Statutes of Limitations will be apparent from Appellant’s brief, Appellant requests oral
argument to address any questions let unaddressed by this brief.
ISSUES PRESENTED
1. Did the trial court err in concluding that the 4 year statute of limitations for fraud had run
on the date of Appellant’s filing of suit on April 8, 2013, when there were unresolved issues of
material facts as to the date of accrual of Appellant’s causes of action for fraud?
2. Did the trial court err in concluding that the 2 year statute of limitations for unjust
enrichment and restitution had run on the date of Appellant’s filing of suit on April 8, 2013,
when the injury to Appellant under the asserted causes of action is an ongoing every increasing
injury caused by Appellee’s recordal of a contested judgment against Appellant’s real property?
3. Did the trial court err in concluding that the 2 year statute of limitations for unjust
enrichment and restitution had run on the date of Appellant’s filing of suit on April 8, 2013,
when the injury to Appellant under the asserted causes of action resulted from the wrongful
recordal of a contested judgment against Appellant’s real property, which recordal was not
known to Appellant until September 2012?
STATEMENT OF FACTS
A. Introduction
Appellant is Sharleen Wilson Allen (“Allen” or “Appellant), a resident of Grayson
County. Appellee Bryon Wilson (“Bryon Wilson”, “Wilson” or “Appellee”) is a resident of
Harris County and is Appellant’s brother.
This appeal arises out of a suit brought by Appellant against Appellee seeking to recover
damages based on fraud, unjust enrichment and restitution for failure of Appellee to make
payments on a mobile home for which Appellee obtained title and a recovery for the unpaid
balance due on the mobile home. In her suit against Appellee, Appellant contends that in view
of a judgment in favor of Appellee awarding Appellee title to the mobile home and a judgment
for the unpaid balance due, Appellee became obligated to pay off the balance due which
Appellee failed to do.
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B. The Facts
In 2001, Appellant Allen rented to her brother, Appellee Wilson, her 1998 Redman
mobile home (herein “Mobile Home”) on land located in Grayson County, Texas, such property
being located at 745 Yowell Hill Road, Whitewright, Texas 75491 (herein the “Grayson County
Property”). At the time, the Grayson County Property was being purchased by Appellant
Sharleen Allen and her husband Paul Allen from Appellant’s father. Appellant Allen made
monthly payments over many years but did not own the property without lien until 2007. (CR
121-122, ¶ 5). The Mobile Home also had an outstanding mortgage held by Green Tree
Servicing, LLC (herein “Green Tree”).
From 2001 to 2007, Appellee Wilson made infrequent payments on an agreed $600 per
month rent of the Mobile Home and made several attempted payments with bad checks. (CR
121-122, ¶¶ 4, 5). When Appellee failed to make the required rental payments, Sharleen Allen
and Paul Allen sued Appellee in Justice Court for Forceful Entry and Detainer.
In retaliation, and to prevent Appellant from coming onto her property, Appellee obtained
a restraining order (herein “Restraining Order”) prohibiting Appellant from entering onto the
property and also giving Appellee the right to make payments directly to Green Tree for the
mortgage due on the Mobile Home. (CR 127-129). The Restraining Order (CR 127-129) was
issued against Appellant on August 9, 2007. Such Order enjoined Appellant “from going onto
the property, from taking down and/or removing fences on the property, from placing onto or
running cattle or other livestock on the property, and from preventing plaintiff [Appellee Bryon
Wilson] from making payment to Green Tree Servicing, LLC, as necessary.” (CR 128). This
Restraining Order was in place from August 9, 2007.
At the time of filing for the Restraining Order, Appellee Bryon Wilson filed suit in the
336th District Court, Grayson County, styled Bryon Wilson v. Paul Allen and Sharleen Wilson
Allen, District Court, 336th Judicial District, Civil Action No. 07-1451-336 (herein the “Grayson
County Civil Action”). (CR 130-136). In the Grayson County Civil Action, Appellee presented
a document dated February 17, 2001 (herein “Contract for Sale”), purportedly between himself
and Appellant Sharleen Allen and Paul Allen, to transfer the Grayson County Property, and the
Mobile Home thereon, to Appellee contingent upon his payments of $600 per month for eight
(8) years. The purported Contract for Sale was not signed by Appellant Sharleen Allen and
contained the forged signature of Paul Allen. (CR 121-122, ¶¶ 5, 6). Despite the fact that the
$600 monthly payments were only periodically made to Sharleen Allen and Paul Allen and
despite the fact that the document was referred to the District Attorney for examination as to a
forgery in the Grayson County Civil Action, the trial court issued a Final Judgment on March 7,
2008 (herein the “Grayson County Judgment”) to Appellee Bryon Wilson in which Wilson was
awarded:
1. $19,475.99 for anticipatory breach damages;
2. $8,623.56 for reasonable and necessary attorney’s fees;
3. $400.00 for reimbursement of mediation costs incurred;
4. Post judgment interest at 7.25% on the total Judgment from the date of Judgment
until paid;
5. Title to the Grayson County Property; and
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6. Title to Mobile Home including all contents, furnishings, appliances, siding and
air conditioning equipment.
(CR 123, ¶ 11; 137-139).
Additionally, the Grayson County Judgment acknowledged that there was a remaining
term and balance of $6,800 left owning under the Contract for Sale by Appellee Wilson to
Appellant Allen as of February 8, 2008. Instead of requiring Wilson to pay the $6,800 due to
Appellant Allen, the Grayson County Judgment provided that Wilson was to deduct that amount
from the Judgment damages. Thus, the total monetary award granted in the Judgment was for
$21,699. This sum is a result of adding the award components, namely $28,499 (the sum of
$19,475.99 for anticipatory breach damages, $8,623.56 for attorney’s fees and $400.00 for
reimbursement of mediation costs) and subtracting the $6,800 credit to Sharleen Allen as the
amount still owning on the purported Contract for Sale. (CR 123, ¶ 11; 137-139).
The anticipatory breach damages in the amount of $19,475.99 were calculated based on
the amount due and owning on the Mobile Home. Because the Grayson County Judgment
awarded title to the Mobile Home to Wilson, Wilson was awarded $19,475.99 to cover the
balance due. Having been awarded $19,475.99 in the Judgment to cover the balance due on the
Mobile Home, and receiving title to and use of the Mobile Home, Appellant contends that
Wilson became obligated to pay off the outstanding Mobile Home balance. To argue otherwise
is to propose that Wilson was entitled to the Mobile Home free and clear of a mortgage and also
to a judgment amount of $19,475.99 for the purpose of covering the outstanding mortgage.
Soon after obtaining the March 2008 Judgment, Wilson leased the Mobile Home and
Grayson County Property, or negotiated a lease to sell arrangement, with his other sister Monica
Wilson Doster who moved into the Mobile Home with her family. (CR 123-124, ¶ 16). Monica
Wilson and her family lived in the Mobile Home throughout 2008 vacating it thereafter. (CR
123-124, ¶ 16) During this period, Monica Wilson made payments to Green Tree through a
Western Union account. These payments are recorded on a report from Western Union showing
monthly payments throughout 2008 toward Account No. 25340364, the account for the Mobile
Home. (CR 123-124, ¶ 16). Based on the affidavit testimony of Appellant, (CR 123-124, ¶ 16),
and a receipt (CR 162) produced by Appellant, payments were made by Monica Wilson or
Appellee on May 1, 2008, June 7, 2008, July 12, 2008, August 16, 2008, September 13 2008,
October 25, 2008 and November 11, 2009. (CR 123-124, ¶ 16; 162). The very payment
Appellee claimed, in Appellee’s Motion for Summary Judgment, to have been made by
Appellant to Green Tree on April 4, 2008, is shown by evidence submitted by Appellant to have
been paid by Monica Wilson, on Appellee Bryon Wilson’s behalf. (CR 123-124, ¶ 16; 162, 164,
198).
After April 4, 2008, the date from which Appellee Wilson claimed he had nothing more
to do with the Mobile Home, he pledged both the Grayson County Property and Mobile Home as
security for a debt owed he owed to his lawyer, Donald Johnston. In a Deed of Trust dated
September 2, 2008 between Appellee Bryon Ray Wilson as Grantor and James A. Fry, Esq., as
Trustee, and Law Office of Donald Johnston, as Lender, issued to secure payment of a debt
between Bryon Wilson as Grantor and Law Office of Donald Johnston as Lender, the Mobile
Home was pledged as security for $8,991.84. (CR 124, ¶ 18; 165-174). Then later, on
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September 10, 2010, the Mobile Home was again the subject of a release of the lien. (CR 122,
¶ 8; 175-178).
Although Wilson was obligated to pay off the Mobile Home mortgage, he failed to do so
and never communicated his intentions to Appellant. (CR 125-126, ¶¶ 24, 25). His failure
resulted in the issuance of a default notice February 2, 2009. (CR 125, ¶ 21; 179). However, the
Mobile Home was not repossessed until after issuance of a Notice of Sale to Appellant from
Green Tree date August 24, 2009 (CR 125, ¶ 22; 180-181), within the 4 year statute of
limitations period. At any time up to and even after the actual repossession after August 24,
2009, Appellee Bryon Wilson could have and was obligated to pay off the mortgage due on the
mobile home to which he had been awarded title and for which he had been awarded a
$19,475.99 judgment to cover such balance due.
At no time did Appellee Bryon Wilson discuss with Appellant or reveal to her his plans
with regard to his obligation to pay the mortgage on the Mobile Home to which he had been
awarded title in the March 7, 2008 Judgment. In view of the severely strained relationship
between Appellant and Appellee, Appellee never spoke and never discussed anything with
Appellant and thus Appellant had no information as to what action Bryon Wilson would take,
had taken or intended to take with regard to the obligation of the mortgage payment due on the
Mobile Home. (CR 125-126, ¶ 24, 25). Appellee never informed Appellant of his intent or
actions. (CR 125, ¶ 24).
As a result of Appellee’s failure to pay the mortgage on the Mobile Home, the Mobile
Home was eventually repossessed and sold after August 24, 2009 (CR 125, ¶ 23), within the
4 year statute of limitations period applicable in this case.
After obtaining the award granted in the Grayson County Judgment, wherein Appellee
obtained title to Appellant Allen’s Grayson County Property and title to her Mobile Home,
Wilson then , unknown to Appellant, recorded the Grayson County Judgment in Red River
County against the only other property owned by Appellant. Specifically, Appellee recorded the
Judgment was made against Appellant’s 40 acre tract of undeveloped land with timber in
Bagwell, Red River County (herein the “Red River County Property”). (CR 126, ¶ 27; 182-194).
The Appellant had purchased the Red River County Property in 2002. It contains two
(2) adjoining 20 acres tracts. Appellant Allen made monthly payments over a ten-year period to
own the property free of mortgage as of October 31, 2013. (CR 126, ¶ 26).
The Grayson County Judgment was rendered on March 7, 2008 and Wilson recorded the
Judgment against Appellant’s Red River County Property on March 27, 2008, at Vol. 613, p 325,
Red River County Records. (CR 126, ¶ 27; 182-194). Appellee did not inform Appellant of this
recordal, and Appellant had no reason to suspect that such a recordal had been made. (CR 126,
¶ 27). Appellant did not learn of the recordal until September 2012. (CR 126, ¶ 27).
The Grayson County Judgment, which includes $19,475.99 for the anticipatory breach
for the mortgage on the Mobile Home, an obligation which Wilson never satisfied, was recorded
against Appellant’s Red River County Property with the specific intention of burdening that
property, knowing that Appellant was financially unable to pay $19,475.99 but realizing that the
4
Judgment would grow (due to the interest accruals) to an amount that will eventually exceed the
value of the Red River County Property. As can be seen from the Judgment, in addition to the
$19,475.99 awarded Wilson for the Mobile home balance due, the Judgment awarded interest at
7.25% (CR 137-139) on the Judgment, an amount that is compounded annually. Specifically, the
increase in the Judgment amount due to interest is ever increasing, representing a debt that
multiplies exponentially year to year. Thus, the interest posted and due on the Judgment amount
in the years 2009 through March 8, 2015, has been:
March 8, 2008 $0.00
March 8, 2009 $1,412.01
March 8, 2009 $1,514.38
March 8, 2011 $1,624.17
March 8, 2012 $1,741.92
March 8, 2013 $1,868.21
March 8, 2014 $2,003.66
March 8, 2015 $2,148.93
As a result, the Judgment of $19,475.99 on March 8, 2008, now has increased, as
Appellee intended and foresaw, to $31,789 as of March 8, 2015 due to interests accumulation.
By the time Appellant is ready for retirement on her 65th birthday in the year 2040, the Judgment
will have mushroomed to $182,899, far in excess of the value of the Red River County Property.
As shown by these facts, Appellee has caused the Appellant to sustain a daily increased
injury which continues to this day. The yearly increase is real, measurable, and exponentially
increasing. It is also directly attributable to the Appellee’s acts.
Based on these facts, and after having learned of the recordal of the Grayson County
Judgment against Appellant’s Red River Property, Appellant filed suit against Appellee on April
8, 2013. Appellant, in her First Amended Original Petition, alleged six causes of actions, namely
(CR 40-51):
• Fraud For Failure To Pay The Mortgage Due On The Mobile Home
• Fraud For Recordal Of The Red River County Property Lien Without Intent To Pay
The Mortgage Due On The Mobile Home
• Unjust Enrichment For Failure To Pay The Mortgage Due On The Mobile Home
• Unjust Enrichment By Recordal Of The Red River County Property Lien Without
Intent To Pay The Mortgage Due On The Mobile Home
• Unjust Enrichment From Payment Made By Appellant For Appellee’s Benefit
• For Restitution For Failure To Pay The Mortgage Due On The Mobile Home
Appellee filed Defendant’s First Motion for Summary Judgment on May 5, 2015 (CR 60)
and Defendant’s Amended First Motion for Summary Judgment (CR 197-207) on June 8, 2015,
alleging that each cause of action was barred by Statutes of Limitations. A hearing was set and
arguments heard on June 8, 2015 (RR 1-33). The Court issued its Judgment in favor of Appellee
on August 27, 2015 (CR 212). This appeal was timely filed on September 2, 2015 (CR 213-
214).
5
SUMMARY OF THE ARGUMENT
A. There is a genuine issue of material fact as to when Appellant’s causes of action for
fraud accrued and whether they accrued outside the 4 years statute of limitations, namely more
that 4 years before April 8, 2013 (before April 8, 2009). Appellee Wilson failed to conclusively
show the date on which the statute of limitations period commenced. In Appellee’s initial
Motion for Summary Judgment, Appellee alleged that Appellant’s causes of action accrued on
April 4, 2008, stating “Accordingly, it was on April 4, 2008 when all six of Allen’s causes of
action accrued ….” (CR 67-68). Faced with clear evidence submitted in response by Appellant
demonstrating that such a claim was clearly untrue, Appellee’s counsel argued at the hearing (for
the first time) that the accrual date must then be February 17, 2009 (RR 9, 23). This inability of
the Appellee to identify when the cause of action accrued clearly defeats Appellee’s motion.
Indeed, the causes of action for fraud did not accrue until after August 24, 2009. At a minimum,
there is a genuine issue of material fact as to the date of accrual. And clearly Appellee failed to
demonstrate Appellant’s causes of action accrued outside the limitations period. Unless the
summary judgment record conclusively shows commencement of the limitations period before
April 8, 2009, the movant failed to meet his burden and the Judgment must be overturned.
B. Appellee’s acts have caused an ongoing ever increasing injury that precludes the
running of the statutes of limitations. Appellee purposefully recorded the March 2007 Judgment
against Appellant’s real property knowing that it would cause ongoing, ever increasing injury.
Specifically, Appellant has pled causes of action based on Appellee’s intentional misuse of the
Judgment. From this misuse, the Appellee’s acts have had and were intended to have a recurring
effect and increasing and repeated injury for each and every year up until the present. Thus, the
Appellee has failed to conclusively establish the asserted causes of action accrued outside of
either the 2 year or 4 year applicable limitations periods.
C. Appellant’s cause of actions based on the wrongful recordal of the Grayson County
Judgment did not accrue until Appellant became aware of the recordal against here Red River
County Property, namely in September 2012. Thus, the causes of action based on the Appellee’s
wrongful recordal of the Judgment had not run as of the date of Appellant’s suit filed on April 8,
2013 (CR 5-8).
ARGUMENT
A. The Appellee Carries the Burden of Pleading, Proving and Securing Findings to
Support His Motion for Summary Judgment
The statute of limitations is an affirmative defense, and Appellee Wilson has the burden
to plead, prove, and secure findings to support the defense. See Tex.R. Civ. P. 94;  Woods v.
William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988);  Solares v. Solares, 232 S.W.3d 873,
878 (Tex.App.—Dallas 2007, no pet.). When an Appellee seeks a summary judgment on the
ground that the Appellant’s cause of action is barred by a statute of limitations, it is the
Appellee’s burden to conclusively establish the applicability of the statute. Zale Corp. v.
Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975); see also Weaver v. Witt, 561 S.W.2d 792 (Tex.
1977). Thus, Appellee Wilson must conclusively show the date on which the statute of
limitations period commenced. Delgado v. Burns, 656 S.W.2d 428 (Tex. 1983). Unless the
6
summary judgment record conclusively shows that the cause of action accrued outside the
limitations period, the movant has not met his burden. Delgado, 656 S.W.2d at 428.
For Appellee to prevail, the cause of action accrual date must be outside the statute of
limitations period. The statute of limitations does not begin to run until the cause of action
accrues. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 514
(Tex. 1998). The question of when a cause of action accrues is generally one of law for the
courts to determine, (see Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221
(Tex. 2003) (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990)), but the
question necessarily relies on facts regarding the claim and injuries caused thereby. See Abbott
v. City of Kaufman, 717 S.W.2d 927 (Tex.App.-Tyler 1986, no writ); see also Holmes v. Canlen
Management Corp., 542 S.W.2d 199 (Tex.Civ.App.-El Paso 1976, no writ); Gottlieb v.
Hofheinz, 523 S.W.2d 7 (Tex.Civ.App.-Houston 1975, writ dism’d).
B. Appellee’s Motion For Summary Judgment Should have been Denied For Failure
To Meet The Burden Of Showing that the Appellant’s Causes Of Action Did Not
Accrue Within the Limitations Period
To prevail on a summary judgment motion, the movant must establish as a matter of law
his entitlement by conclusively proving that no genuine issue of material fact exists as to his
cause of action or defense. Delgado v. Burns, 656 S.W.2d 428 (Tex. 1983).; City of Houston v.
Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Gibbs v. General Motors
Corporation, 450 S.W.2d 827, 828 (Tex. 1970); Tex.R.Civ.P. 166a(c). Appellee’s motion based
on the running of the statute of limitations is an affirmative defense, and thus Appellee has the
burden to plead, prove, and secure findings to support the defense. See Tex.R. Civ. P. 94
(limitations is affirmative defense);  Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517
(Tex. 1988);  Solares v. Solares, 232 S.W.3d 873, 878 (Tex.App.—Dallas 2007, no pet.). When
an Appellee seeks a summary judgment on the ground that the Appellant’s cause of action is
barred by a statute of limitations, it is the Appellee’s burden to conclusively establish the
applicability of the statute. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex. 1975); see
also Weaver v. Witt, 561 S.W.2d 792 (Tex. 1977). The question necessarily relies on facts
regarding the claim and injuries caused thereby. See Abbott v. City of Kaufman, 717 S.W.2d
927 (Tex.App.-Tyler 1986, no writ); see also Holmes v. Canlen Management Corp., 542 S.W.2d
199 (Tex.Civ.App.-El Paso 1976, no writ); Gottlieb v. Hofheinz, 523 S.W.2d 7
(Tex.Civ.App.-Houston 1975, writ dism’d).
Clearly, Appellee’s pleadings do not affirmatively show that the limitations periods had
expired on the date Appellant’s suit was filed April 9, 2013. The Appellant’s pleading, given a
liberal construction, alleges that the Appellee failed to pay off the mortgage due on the Mobile
Home causing her injury. However, contrary to Appellee’s assertion, Appellant had no
information as to when or how Appellee would satisfy this obligation. Construing the relevant
allegations in the Appellant’s petition liberally, as the Court must do here, there is indeed a fact
question as to when Appellant had “given up the Mobile Home” and was refusing to pay off the
Mobile Home mortgage and thus when the causes of action based on this refusal accrued. See
Abbott v. City of Kaufman, 717 S.W.2d 927 (Tex.App.-Tyler 1986, no writ); see also Holmes v.
Canlen Management Corp., 542 S.W.2d 199 (Tex.Civ.App.-El Paso 1976, no writ); Gottlieb v.
Hofheinz, 523 S.W.2d 7 (Tex.Civ.App.-Houston 1975, writ dism’d). Such is the case here.
7
To prevail, Appellee must establish that the causes of action accrued outside the
limitations period and that such date is established without raising any genuine issue of material
fact. Delgado v. Burns, 656 S.W.2d 428 (Tex. 1983). Unless the summary judgment record
conclusively shows that the causes of action accrued on a specific date outside the limitations
period, the movant has not met his burden. See Delgado, 656 S.W.2d at 428.
C. Appellee failed to Establish that the Causes of Action Based on Fraud accrued
outside the applicable 4 year Statute of Limitations.
In his Motion for Summary Judgment, Appellee alleged that the 4 year statute of
limitations (Tex. Civ. Prac. & Rem § 16.004) had expired as of the date of Appellant’s suit.
Appellee initially premised his Summary Judgment Motion entirely on the following faulty
conclusion:
“The summary judgment evidence is clear, it is unambiguous, and there is no
genuine issue that Wilson’s judgment against Allen was entered March 7, 2008, that he
filed his remittitur with the Court on March 7, 2008, that he did not pay Green Tree after
entry of the judgment and that Allen knew he was not paying Green Tree when she made
payment to Green Tree on April 4, 2008. Accordingly, it was on April 4, 2008 when all
six of Allen’s causes of action accrued ….”
(CR 67-68; emphasis added).
Appellee further represented in his affidavit in support of his Motion that:
“By the time of the February 2008 trial,….I elected to give up the
manufactured home”.
(CR 90, ¶ 27; emphasis added).
Contrary to the assertions made by Appellee in his Affidavit and stated as the sole basis
for his Motion, Appellee did make payments to Green Tree on the Mobile Home, or
payments were made on his behalf by his lessee, after April 4, 2008. (CR 123-124, ¶¶ 16, 17;
162; 196). After the March 8, 2008 Judgment, Appellee Wilson leased or contracted to sell the
Mobile Home and 5 acres to his other sister Monica Wilson, who moved into the Mobile Home
with her family. (CR 123-124, ¶ 16). Monica Wilson and her family lived in the Mobile Home
throughout 2008 and vacated the home thereafter. (CR 123-124, ¶ 16). During this period,
payments on the Mobile Home were made by Appellee or on Appellee’s behalf by Monica
Wilson to Green Tree through a Western Union account. These payments are recorded on the a
report from Western Union showing monthly payments throughout 2008 on account
No. 25340364, the account for the Mobile Home. (CR 123-124, ¶ 16). Payments are shown to
have been made on May 1, 2008, June 7, 2008, July 12, 2008, August 16, 2008, September 13
2008, October 25, 2008 and November 11, 2008. (CR 123-124, ¶ 16; 162). In fact, the very
payment Appellee claims was made by Appellant to Green Tree on April 4, 2008, is shown by
evidence of record to have been paid by Monica Wilson, on Bryon Wilson’s behalf. (CR 123-
124; ¶ 16; 162, 196).
8
Appellee not only leased the Mobile Home to Monica Wilson who made payment for him
throughout 2008, he pledged the Mobile Home in a security agreement to his lawyer on
September 2, 2008, for a debt owed. (CR 124, ¶ 18; 165-174). The Mobile Home was pledged
as security by Appellee to his lawyer until September 10, 2010, when lien was released by
Appellee’s counsel. (CR 122, ¶ 8; 175-178).
Thus, Appellee’s statements in his Motion for Summary Judgment that no payments were
made by him after the February 2008 trial and that he had “elected to give up the manufactured
home” as of the trial date, are clearly contrary to evidence and are clearly false.
Faced with the true facts presented by Appellant at the hearing on June 8, 2015, on
Appellee’s Motion for Summary Judgment, showing that Appellee had indeed not given “up the
manufactured home” as of the trial date in February 2008, Appellee’s counsel then argued at the
hearing (for the first time) that the accrual date must then be February 17, 2009 (RR 9, 23). This
inability of the Appellee to identify when the cause of action accrued clearly defeats Appellee’s
motion. Appellee has not demonstrated Appellant’s fraud cause of action accrued outside the
limitations period.
Instead the facts demonstrate that given the strained relationship between Appellant and
Appellee and the complete lack of communication between them, (CR 125-126, ¶¶ 24, 25),
Appellant could not have known when or what payments Appellee would make and Appellant
did not know what action he would take, had taken or intended to take with regard to the
obligation of the mortgage payment due on the Mobile Home. In fact, the evidence shows that
Appellee never communicated his intentions to Appellant. Appellant rightfully expected
Appellee to make the mortgage payments, particularly in view of the facts that (i) he was
awarded title to the Mobile Home by the Judgment, (ii) he was awarded a judgment of
$19,475.99 to cover the balance due, (iii) he had rented the Mobile Home to his other sister after
the Judgment; (iv) he and/or she had made payments on the mortgage through at least 2008,
(v) there was a Restraining Order in place against Appellant preventing her from entering the
Property and giving Appellee the right to make mortgage payments and (vi) Green Tree formally
recognized Appellee as the party from whom payments were to be received. (CR 125-126,
¶ 25).
In fact, even to this day, Appellee could claim that he would make payment to Green
Tree and certainly could have made payment up to the date of foreclosure which was not
until after August 24, 2009, well within the 4 year limitations period. (CR 125, ¶ 22; 180-
181).
As this Court can appreciate, Appellee held all the cards. He could make some payments,
delay payments and then made further payments. Appellee had obtained a Restraining Order
against Appellant Allen before the Mobile Home was even awarded to Appellee in the Judgment
giving Appellee rights to make payments on the Mobile Home and preventing Appellant from
coming onto the land. (CR 122, ¶ 9; 127-129). Through the Judgment, he acquired title to the
Mobile Home and property, he then leased the property after the March 7, 2008 Judgment to his
other sister, he made payments on the Mobile Home mortgage after the March 7, 2008 Judgment,
he never communicated, not even one time with the Appellant Allen informing her of his
intentions regarding the property. (CR 125, ¶ 24). Now he expects this Court to believe that
9
Appellant Allen “knew he was not going to pay” the mortgage on the Mobile Home. This
assertion is untrue and certainly is not unchallenged – which in itself is sufficient to defeat
Appellee’s Motion.
Courts have repeated recognized that a potential Appellant can postpone suit rather than
be forced to file serial suits in such situations. This view is supported by the strong policy
against a multiplicity of suits, as exemplified in the rule against splitting a cause of action. Since
early times Texas courts have followed the rule that when a party can enforce his rights by one
action, he ought not to be permitted to resort to many. Pitts v. Ennis & Reynolds, 1 Tex. 604,
605 (1846). This rule has been applied in a variety of circumstances, usually to bar a second suit
based on the same wrong. See, e. g., Hartnett v. Adams & Holmes Mortgage Co., 539 S.W.2d
181, 184 (Tex.Civ.App. Texarkana 1976, no writ) (wrongful foreclosure based on separate acts
or omissions); Martin v. Phillips Petroleum Co., 455 S.W.2d 429, 436 (Tex.Civ.App. Houston
(14th Dist.) 1970, no writ) (different legal theory of recovery for same damages); Millers
Mutual Fire Insurance Co. v. Mitchell, 392 S.W.2d 703, 705 (Tex.Civ.App. Tyler 1965, no writ)
(separate items of damage resulting from same tort); Cormier v. Highway Trucking Co., 312
S.W.2d 406, 407 (Tex.Civ.App. San Antonio 1958, no writ) (personal injury and property
damage resulting from same collision).
Under this rule, Appellant might not have been allowed to maintain a separate suit for
injury due to Appellee’s failure to pay the first or second mortgage payment and then later file
suit for additional failures to pay the mortgage payment. In this sense, the cause of action is not
complete and does not accrue until the facts support a breach of obligation. Had Appellant
actually sued Appellee in April of 2008, he certainly would have then claimed that he intended to
pay off the mortgage and that any suit was premature because the Mobile Home had not been
repossessed and he had full right and privilege to pay off the note as he saw fit. Until the Mobile
Home was repossessed (after August 24, 2009 (CR 125, ¶ 22), and within the 4 year statute of
limitations period), Appellee could have argued no cause of action had accrued. In fact, to
support such a position, Appellee could have pointed to the payments made throughout 2008 and
beyond by his lessee (CR 123-124, ¶¶16, 17; 162;196) who was then residing in the Mobile
Home.
In short, Appellee has played fast and loose with the facts and Appellee’s version of the
facts are clearly contrary to the clear evidence. Because the alleged facts on which Appellee’s
Motion is premised are untrue, or at a minimum are in dispute, then Appellee’s motion should
have been denied. Tex. Civ. Proc. Rule 166a(c); Delgado v. Burns, 656 S.W.2d 428 (Tex. 1983).
Appellee has failed to meet his burden that the cause of action “accrued” on or before April 8,
2009.
D. Appellee’s Acts have Caused an Ongoing Ever Increasing Injury that Precludes
the Running of either the 4 year or 2 years Statute of Limitations.
Appellee purposefully recorded the Grayson County Judgment knowing that it would
caused ongoing, ever increasing injury. Specifically, Appellant has pled causes of action based
on Appellee’s intentional misuse of the Judgment. From this misuse, the Appellee’s acts have
had and were intended to have a recurring effect and increasing and repeated injury for each and
10
every year up until the present. Thus, the Appellee has failed to conclusively establish a specific
beginning date for the limitations periods.
The statute of limitations applicable to actions in Texas are set forth in Chapter 16 of the
Texas Civil Practice and Remedies Code. Civil Practice and Remedies Code, §16 et seq. As
Appellee has admitted, both the four-year and two-year limitations periods apply to the alleged
causes of action. (CR 64-65; Appellee’s First Motion for Summary Judgment, pp. 5-6; Civil
Practice and Remedies Code § 16.004.) As provided for in §16.004, a person must bring suit on
the action no later than four years after the date the cause of action accrues. Here, the Appellee
argues that all causes of action advanced in this case accrued in 2008. However, Appellee’s
argument fails to recognize the totality of the acts of Appellee and the injury caused. The injury
perpetrated by the Appellee on the Appellant is one that is ongoing and increasing year-to-year
in view of the Appellee’s misuse of the 2008 Judgment. In this case, the Appellee’s wrongful
acts were clearly not complete outside the statutory period because they are part of an ongoing
course of conduct. This is clearly seen by the ever increasing yearly burden attributable to the
Appellee’s wrongful acts. Thus, in this case Appellant’s injuries are attributable to the
cumulative effect of the continuing conduct. Here, the limitations periods had not run until the
activity ceases. See. Twyman v. Twyman, 790 S.W.2d 819, 821 (Tex. App.–Austin 1990, rev’d
on other grounds, 855 S.W.2d 619 (Tex. 1993).
As shown below, Appellee’s actions were calculated to and have caused and are causing
injuries within the statute of limitations. The Grayson County Judgment, which includes
$19,475.99 for the anticipatory breach for the mortgage on the mobile home, an obligation which
Wilson never satisfied, as he has admitted in his Affidavit in support of his Motion, was recorded
against Appellant’s Red River County Property with the intention of burdening that property,
knowing that his sister was financially unable to pay $19,475.99 but realizing that the Judgment
would grow (due to the interest accruals) to an amount that will eventually exceed the value of
the Red River County Property. Specifically, the Judgment with interest represents an ever
increasing debt that multiplies exponentially year to year as shown in the following graphs:
Graph Showing the Judgment Increase Each Year
11
The yearly interest posted in the years 2009 through March 8, 2015, has been:
March 8, 2008 $0.00
March 8, 2009 $1,412.01
March 8, 2009 $1,514.38
March 8, 2011 $1,624.17
March 8, 2012 $1,741.92
March 8, 2013 $1,868.21
March 8, 2014 $2,003.66
March 8, 2015 $2,148.93
As a result, the Judgment of $19,475.99 rendered on March 8, 2008, now has grown to
$31,789 as of March 8, 2015 due to interest accumulation. In graph form, this increase is shown
in the following illustration:
These illustrations reveal the ongoing and ever increasing burden on the Red River
Property having increased from an initial Judgment of 19,475.99 in the year 2008 to $31,789 in
the year 2015. In the years 2012, 2013, 2014 and 2015, the Judgment has increased by
$1,741.92, $1,868.21, $2003.66 and $2,148.93, respectively.
As is evident from these undisputable facts, the Appellee’s strategy has caused the
Appellant to sustain an ongoing and ever increasing injury occurring in each year since 2008
including in each of the last four (4) years. Because Appellant’s claim is for the damages
resulting from Appellee’s calculated acts that have resulted in (as intended) ongoing injury to
this very day, the statute of limitations cannot be applied to bar Appellant’s claims.
Courts have clearly recognized that such acts overcome the statute of limitations defense
raised in Appellee’s motion. Specifically, the statute of limitations starts at the time of the
violation. In cases where the violation has been ongoing as a series of injuries, the series must be
treated as a whole and the statute of limitations commences at the last violation. Texas courts
first recognized the tolling concept of continuing tort in trespass to land and nuisance cases.
Creswell Ranch & Cattle Co. v. Scoggins, 39 S.W. 612 (Tex.Civ.App.1897, no writ). In
12
Creswell, the Court found that a continuation of a trespass on property gave rise to a cause of
action whose limitations does not run until the trespass is removed. This is clearly analogous to
the present case where Appellee Wilson intentionally and wrongfully recorded the Judgment
against Appellant’s Red River County Property and particularly where the burden of the recordal
has grown exponentially each year since. Appellee cannot legitimately argue that allowing
livestock to trespass on property is different from recording a lien (in effect trespassing) on
property and particularly whereas here, such burden is growing exponentially. For the same
period that livestock in the Creswell case reduced the value of Appellant’s land, Appellee’s
actions here have damaged Appellant’s Red River Property by denying the Appellant the ability
to sell or mortgage the property burdened by Appellee’s lien. And, the burden is ever increasing.
Thus, where a party starts a process that is ongoing causing injury to another, the injured
party’s cause of action against the person who initiated the act causing the injury is tolled until
the injury ceases. See Franzetti v. Franzetti, 120 S.W.2d 123 (Tex.Civ.App.1938, no writ).
Adler v. Beverly Hills Hosp., 594 S.W.2d 153 (Tex.Civ.App.1980, no writ).
In deciding whether the statute is suspended the court must consider the circumstances so
alleged and asserted as proven. In this case, Appellant alleges that the objective of Appellee was
not only to take Appellant’s Grayson County Property, but his rush to record the challenged
Judgments against the Red River County Property demonstrates his focus on owning it – and he
could only do so by imposing the Judgment and increasing interest as shown in the facts
presented here.
Specifically, although the statute of limitations accrues at the time of the violation, where
the violation has been ongoing as a series of injuries, the series must be treated as a whole and
the statute of limitations commences at the last injury. Twyman v. Twyman, 790 S.W.2d 819,
821 (Tex. App.–Austin 1990, rev’d on other grounds, 855 S.W.2d 619 (Tex. 1993). This is
precisely the case here.
As a result, even the two statute of limitations does not bar Appellant’s claim brought in
this action and Appellee’s Motion for Summary Judgment should have been denied.
E. Appellant was Not Aware of Appellee’s Wrongful Recording of the Grayson
County Judgment against her Red River County Property and Had No Reason to
Be Aware of Same before Commencement of the Limitations Periods.
Appellant asserts a claim for fraud (Appellant’s Second Cause of Action) and unjust
enrichment (Appellant’s Fourth Cause of Action) as a result of Wilson’s recordal of the March 7,
2008, Grayson County Judgment against her property in Red River County on March 27, 2008,
while knowingly refusing to pay off the Mobile Home balance. (CR 40-51).
On March 27, 2008, without any notice to Appellant Allen, Appellee recorded the
March 7, 2008 Grayson County Judgment he obtained against Allen against her property in Red
River County. Appellee Wilson has been advantaged, to Appellant’s detriment, by having a
Judgment Lien in the amount of $28,499 (or $19,475.99) wrongfully recorded against the Red
River Property while knowingly refusing to pay off the Mobile Home balance. Additionally,
Wilson has been unjustly enriched at the expense of Appellant Allen.
13
Allen had no notice that Wilson did or expectation that he would record such Judgment
against her property in this County. (CR 126, § 27). At the time of the recordal, Appellee was
indeed apparently paying off the Mobile Home Mortgage. Appellant did not learn of the
recordal until September 2012, well within the limitations periods for all of Appellant’s causes of
action.
To clarify the burden of pleading and proving the applicability of the Discovery Rule in
summary judgment cases, the burden rests upon the movant Appellee to not only plead
limitations, but to negate the discover rule. This is because “the presumptions and burden of
proof for an ordinary or conventional trial are immaterial to the burden that a movant for
summary judgment must bear.” Missouri-Kansas-Texas Railroad Co., v. City of Dallas, 623
S.W.2d 296, 298 (Tex. 1981). While a party seeking to avail itself of the discovery rule must
plead the rule, such pleading may naturally be in response to a Appellee’s assertion of the
defense as a matter in avoidance. Tex.R. Civ. P. 94; Peggy Woods, C.R.N.A., v. William M.
Mercer, et al., 769 S.W.2d 515, 518 (1988); Weaver v. Will, 561 S.W.2d 792 (Tex. 1977).
Initially, however, the burden is on the Appellee to negate the discovery rule by proving as a
matter of law that no issue of material fact exists concerning when the Appellant discovered or
should have discovered material facts. Woods, 769 S.W.2d at 794.
Here, Appellant Allen directly challenged Appellee’s unsupported assertion that Allen
should have known of Appellee’s recordal of the Judgment against her property in 2008. She
had no reason to make such an investigation. Indeed, in March of 2008, and thereafter, Appellee
made payments against the Mobile Home mortgage but then stopped leaving the Mobile Home
to be repossessed. Appellant did not become aware of Appellee’s actions using the Judgment
against her until September of 2012, when she found that Wilson had recorded the Grayson
County Judgment against her Red River County Property. Appellee never informed Appellant of
this recordal and she had no reason to suspect that such a recordal had or would have been made.
(See CR 126, ¶ 27).
Thus, Appellant’s cause of actions based on the wrongful recordal of the Grayson County
Judgment (which Appellee failed to fully satisfy) did not accrue until Appellant became aware of
the recordal against her Red River County Property, namely in September 2012. Thus the causes
of action based on the Appellee’s wrongful recordal of the Judgment had not run as of the date of
Appellant’s suit filed on April 8, 2013. (CR 5-8).
14
PRAYER FOR RELIEF
Recognizing that there are genuine issue of material facts that are in dispute as to whether
the statutes of limitations bar Appellant’s claims, Appellant Sharleen Allen respectfully, for the
reasons stated above, asks the Court to reverse the Judgment of the trial court and remand the
case for trial.
Respectfully submitted,
_/s/ Charles S. Cotropia
Charles S. Cotropia
Texas Bar No. 04858600
2001 Ross Ave., Ste. 3600
Dallas, Texas 75201
Tel. (214) 981-3305
Fax. (214) 981-3400
Ronald W. Uselton
Texas Bar No. 20415775
402 W. Lamar, Ste. 101
Sherman, Texas 75090
Tel. (903) 893-9624
Fax. (903) 813-0306
Attorneys for Appellant
SHARLEEN WILSON ALLEN
15
APPENDIX – Final Judgment
16
ACTIVE 211691932v.1
CERTIFICATE OF SERVICE
I do hereby certify that a true and correct copy of Appellant’s Brief on Appeal was served
upon all parties or their counsel of record in accordance with the Texas Rules of Civil Procedure
on the 18th day of December, 2015.
Donald Johnston
306 N. Travis Street, Ste. 102
Sherman, Texas 75090
Tel. 903 891-9840
Fax 903 891-4051
DJohnston50@verizon.net
Scott Smith
120 South Crockett Street
P.O. Box 354
Sherman, Texas 75091-0354
smithlaw@airmail.net
Tel.(903) 868-8686
Fax (903) 870-1446
_/s/ Charles S. Cotropia_____________________
Charles S. Cotropia
ACTIVE 211698206v.1