Martinez v. Donisi (Tex.App.- Houston [14th Dist.] July 30, 2009)(Frost)
(inheritance dispute, probate law, dispute re money alleged to have been held in trust for grandchild,
claims of alleged violations of the Texas Theft Liability Act, conversion of money, breach of fiduciary duty,
and fraud) (summary judgment based on limitations reversed, accrual date not proven)(multiple appeals)
REVERSED AND REMANDED: Opinion by Justice Frost
Before Justices Frost, Brown and Boyce
14-08-00166-CV Jaime Martinez v. Philip Donisi, Independent Executor of the Estate of Jackie Marie
Gammil
Appeal from Probate Court No 2 of Harris County
Trial Court Judge: Michael James Wood
Reversed and Remanded and Memorandum Opinion filed July 30, 2009.
M E M O R A N D U M O P I N I O N
This is an appeal from a summary judgment in a case involving tort claims filed against the executor of an
estate by the decedent's granddaughter. The granddaughter alleges that, in several bank accounts, the
decedent held funds given in trust by the granddaughter's father for the granddaughter's benefit and that
the executor and others tortiously transferred these alleged trust funds to someone other than the
granddaughter. The trial court granted the executor's traditional summary-judgment motion, which was
based on one ground, statute of limitations, and one piece of evidence, a one-page letter. Because the
executor failed to prove conclusively when the granddaughter's claims accrued, we reverse the trial court's
judgment and remand.
I. Factual and Procedural Background
Appellant Jaime Martinez (“Jaime") is the daughter of Cecil Gammill, Jr. (“Cecil Jr.") and the granddaughter
of Jackie Marie Gammill (“Jackie"), who died in 2002. Jaime alleges that, during Jackie's lifetime, Cecil Jr.
gave Jackie funds that were deposited into various bank accounts opened by Jackie and denominated as
trust accounts for the benefit of Jaime. Jaime alleges that Jackie agreed to hold these funds in trust for
Jaime's benefit.
When Jackie's health began to decline, one of her daughters began taking care of her, and one of her
sons, John Gammill (“John") began managing Jackie's finances as Jackie's attorney-in-fact. According to
Cecil Jr.'s affidavit, when Cecil Jr. learned that John was managing Jackie's finances, Cecil Jr. became
concerned that John would deprive Jaime of the alleged trust funds in the bank accounts or that John
would not understand the nature of the alleged trust. Cecil Jr. contacted attorney James Bettis, who wrote
a letter dated January 26, 2000, to Jackie (the “Bettis Letter"). The body of the Bettis Letter reads in its
entirety as follows:
I represent Cecil Gammill and Jaime Cecily Martinez. For some period of time, you have been holding
property in your name for the benefit of Jaime Cecily Martinez. The property includes .944 acres located
at 5214 I-45 North, Houston, Texas. Additionally, you have been holding income derived from this
property. The property and money was held by you because Ms. Martinez was a minor. Ms. Martinez no
longer is a minor. Thus, it is now time to transfer the property and money to Ms. Martinez. My
understanding is that Cecil Gammill has attempted to contact you without success concerning this matter.
It is important that the various interested parties communicate in an effort to amicably effectuate transfer of
the property and money. To this end, I would appreciate it if you or your attorney would contact me.
If you do not contact me, Mr. Gammill and Ms. Martinez will be forced to pursue all available options.
It is undisputed that no property was given to Jaime in response to the Bettis Letter.
Jackie died on July 29, 2002, and her will was probated. Litigation then ensued among Jaime, Cecil Jr.,
and Cecil Jr.'s siblings regarding title to the real property mentioned in the Bettis Letter.[1] On July 28,
2006, Jaime filed suit in the trial court below against three banks, several of Cecil Jr.'s siblings, and
appellee Phillip A. Donisi (“Donisi"), Independent Executor of the Estate of Jackie Marie Gammill. Jaime
alleged that Donisi and others tortiously transferred money out of several bank accounts in which Jackie
had been holding the funds in trust for the benefit of Jaime.
Donisi filed a traditional motion for summary judgment as to all claims asserted against him. Donisi based
his motion on only one ground, statute of limitations, and on only one piece of evidence, the Bettis Letter.
Donisi asserted that by January 26, 2000, as shown by this letter, Jaime knew of the facts upon which she
bases her tort claims against Donisi. Donisi stated that these facts are “that [Jackie] was allegedly holding
money for the benefit of [Jaime] and not giving it to [Jaime]." Jaime responded in opposition to the
summary-judgment motion, proffering evidence and asserting, among other things, that Donisi did not
satisfy the burden of proof for his traditional motion for summary judgment.
John, who was named a defendant below, did not join in Donisi's motion for summary judgment but filed
various objections to some of Jaime's summary-judgment evidence. The trial court sustained some of
John's objections and struck all or part of various documents proffered by Jaime. The trial court granted
Donisi's summary-judgment motion and dismissed all of Jaime's claims against Donisi.[2] Jaime challenges
that ruling in this appeal.
II. Standard of Review
In a traditional motion for summary judgment, if the movant's motion and summary-judgment evidence
facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a
genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v.
Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court's summary judgment, we
consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could
not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue
of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-
judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
III. Analysis
Jaime presents three issues in this appeal. In her first issue, she asserts that the trial court erred in
granting summary judgment because Donisi did not establish when her claims accrued and because there
is a fact issue with regard to the discovery rule.[3]
A defendant moving for summary judgment on the ground of limitations must conclusively establish the
elements of its affirmative defense. KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.
2d 746, 748 (Tex. 1999). To satisfy its burden, the defendant must (1) establish conclusively when the
claims in question accrued; and (2) negate the discovery rule if it applies and has been pleaded or
otherwise raised, by proving as a matter of law that there is no genuine issue of material fact about when
the claimant discovered, or in the exercise of reasonable diligence should have discovered, the nature of
its injury. Id. Only if the defendant meets this burden must the claimant adduce summary judgment proof
raising a fact issue in avoidance of the limitations defense. Id.
In her first issue, Jaime argues that Donisi was not entitled to summary judgment on the ground of
limitations because he failed to establish when her claims accrued. Generally, a claim accrues when a
wrongful act causes some legal injury, even if the fact of injury is not discovered until later, and even if all
resulting damages have not yet occurred. See S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). Where
applicable, the discovery rule defers the accrual of a claim until the claimant knew or, in the exercise of
reasonable diligence, should have known of the facts giving rise to the claim. See Wagner & Brown, Ltd. v.
Horwood, 58 S.W.3d 732, 734 (Tex. 2001).
In her live pleading, Jaime made the following allegations[4] regarding her claims:
* The property which is the subject of Jaime's claims is “monies held in various bank accounts opened
by [Jackie] and denominated as 'In Trust for the Benefit of Jaime Martinez.'"
* Cecil Jr. gave funds to Jackie during her lifetime under an agreement whereby Jackie would deposit
these monies into several bank accounts under the name AJackie Marie Gammill in Trust for the Benefit of
Jaime Martinez." These funds have never been paid to Jaime.
* Upon information and belief, the banks in which the alleged trust funds were deposited wrongfully
paid those funds to either Donisi or one of Cecil Jr.'s siblings.
* One or more of Cecil Jr.'s siblings has in the past or is currently attempting to steal the alleged trust
funds that were due and payable to Jaime.
* Donisi Awould be liable to [Jaime] in the event that it were demonstrated that he knew that a certain
account held in trust by [Jackie] were [sic] paid out to one other than [Jaime]; or, if he knew or should have
known that an account held in trust by [Jackie] in trust [sic] for [Jaime] had been transferred to another
bank account shortly before her death for the purpose of defrauding [Cecil Jr. and Jaime]."
* Donisi owes Jaime a fiduciary duty because he is executor of Jackie's Estate. Donisi has a fiduciary
duty to cause the terms of the alleged trust bank accounts to be carried into effect.
* Donisi would violate his fiduciary duty “[i]f [Donisi] has paid bank account funds held by [Jackie] in
trust for the benefit of [Jaime] out to persons other than the rightful beneficiary of the trusts."
Jaime sought to recover against Donisi based on claims of alleged violations of the Texas Theft Liability
Act, conversion of money, breach of fiduciary duty, and fraud. Jaime also asserted civil conspiracy. She
sought an order declaring her to be the rightful owner of the funds in question and awarding her the funds
allegedly removed from the bank accounts. Jaime also sought attorney's fees, pre-judgment and post-
judgment interest, and punitive damages. In her live pleading, Jaime does not state any dates as to when
Donisi's allegedly tortious conduct allegedly occurred.
In his motion for summary judgment, Donisi argued that Jaime's claims accrued at the latest in January
2000, when the Bettis Letter was sent to Jackie asking Jackie to transfer certain real property and
unspecified “money" that Bettis asserted had been held by Jackie for the benefit of Jaime. Significantly,
the real property mentioned in the Bettis Letter is not the subject of Jaime's claims in this case.[5] Though
in the letter Bettis does not refer to any bank accounts, we presume for the sake of argument that the
money mentioned in the Bettis Letter is the money that Jaime seeks to recover in this case. According to
Donisi, the Bettis Letter establishes that, as of January 2000, Jaime had asked for the return of the
property and threatened to pursue “all available options" if the parties did not communicate. Donisi further
argues that, because Jackie never gave Jaime any money after Jackie received the Bettis Letter, Jaime's
claims must have accrued by January 2000.
We determine the nature of Jaime's claims in this case from her live pleading, not from the Bettis Letter,
which was sent to Jackie more than six years before Jaime filed this suit. In her petition, Jaime does not
sue Donisi based on any alleged wrongful failure by Jackie to give Jaime the alleged trust funds. In fact,
Jaime does not base her claims on any alleged wrongful conduct by Jackie. Rather, Jaime bases her
claims on the alleged wrongful acts of Donisi himself.[6]
Jaime alleges that Donisi or one of Cecil Jr.'s siblings wrongfully withdrew money Jackie held in trust for
Jaime in several bank accounts. Jaime also alleges that Donisi may have been involved in a conspiracy to
wrongfully withdraw the alleged trust funds from these accounts. Based on these allegations, limitations
began to run on Jaime's claims either when the money in question was transferred out of the bank
accounts or, if the discovery rule applies to the claim in question, when Jaime discovered, or in the
exercise of reasonable diligence, should have discovered that these funds had been transferred out of the
bank accounts in question. See KPMG Peat Marwick, 988 S.W.2d at 748. However, the only summary-
judgment evidence Donisi submitted was the Bettis Letter. In this letter, Bettis makes no mention of bank
accounts, any alleged transfers from bank accounts, or any facts bearing on Jaime's knowledge or inquiry
notice regarding such transfers. The summary-judgment evidence attached to Donisi's motion does not
establish the date on which any of Jaime's claims accrued. See Anderson v. Cocheu, 176 S.W.3d 685,
690 (Tex. App.- Dallas 2005, pet. denied) (holding summary judgment was improper because defendant
did not conclusively prove by his summary-judgment evidence when plaintiff's fraud claims accrued); Meru
v. Huerta, 136 S.W.3d 383, 388 (Tex. App.- Corpus Christi 2004, no pet.) (holding summary judgment was
improper on defense of limitations because movant's evidence did not conclusively prove when claims
accrued). Therefore, the trial court erred in granting Donisi's motion for summary judgment. Accordingly,
we sustain Jaime's first issue.[7]
IV. Conclusion
Because Donisi failed to establish his limitations defense as a matter of law, the trial court erred in granting
summary judgment on Jaime's claims against Donisi. Accordingly, we reverse the trial court's judgment,
and remand for further proceedings consistent with this opinion.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Frost, Brown, and Boyce.
[1] The litigation resulted in at least two appeals. See Gammill v. Fettner, No. 14-07-00705-CV, CS.W.
3dC, 2009 WL 1660476 (Tex. App.- Houston [14th Dist.] June 16, 2009, no pet. h.); Gammill v. Gammill,
No. 14-07-01013-CV, 2009 WL 1550479 (Tex. App.- Houston [14th Dist.] June 16, 2009, no pet. h.) (mem.
op.).
[2] The trial court also granted summary judgment in favor of the three banks, and the other defendants
either were nonsuited or never were served with process.
[3] In two other issues, Jaime also asserts that the trial court erred in allowing John, a non-movant, to
assert objections to Jaime's evidence and that the trial court erred in sustaining John's objections.
[4] Because no special exceptions were sustained against the petition, this court must construe the
petition liberally to contain any claims that reasonably may be inferred from the specific language used in
the petition, even if the petition fails to state all of the elements of that claim. SmithKline Beecham Corp. v.
Doe, 903 S.W.2d 347, 354-55 (Tex.1995). Nonetheless, we cannot use a liberal construction of the
petition as a license to read into the petition a claim that it does not contain. See San Saba Energy, L.P. v.
Crawford, 171 S.W.3d 323, 336 (Tex. App.- Houston [14th Dist.] 2005, no pet).
[5] The summary-judgment evidence contains testimony that Cecil Jr. allegedly purchased the real
property mentioned in the Bettis Letter for Jackie's benefit, though he put the real property in Jackie's
name for asset protection. Because Jaime does not assert a claim regarding this real property in the
instant case, we do not address in this opinion any alleged claim Jaime has regarding the real property,
which is the subject of other lawsuits. See Gammill, 2009 WL 1660476, at *1B4; Gammill, 2009 WL
1550479, at *1.
[6] Donisi argues in his appellate brief that Jaime, in her deposition, acknowledged that the claims she is
asserting in this action are “the same as those that are in the Bettis [L]etter." In support, Donisi cites to
pages from Jaime's deposition that were not attached to the summary-judgment motion. They were
attached to John's objections to the summary-judgment evidence. As such, we cannot consider that
testimony on appeal from the summary judgment. See Mathis v. Restoration Builders, Inc., 231 S.W.3d 47,
52 (Tex. App.- Houston [14th Dist.] 2007, no pet.); see also Mattlage v. Mattlage, 243 S.W.3d 763, 772
(Tex. App.- Waco 2007, pet. denied).
[7] Given this disposition, we need not and do not address Jaime's remaining issues.