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141-303551-18 FILED
TARRANT COUNTY
1/31/2019 9:00 AM
THOMAS A. WILDER
CAUSE NO. 141-303551-18 DISTRICT CLERK
DAVID ALLEN OVERBY, IN THE DISTRICT COURT
Plaintiff
Vv. 1415? JUDICIAL DISTRICT
CATHY S. ESCAMILLA,
Defendant TARRANT COUNTY, TEXAS
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
ON DEFENDANT’S ORIGINAL COUNTERCLAIMS
Plaintiff, David Allen Overby, asks the Court to sign a summary judgment pursuant to
Texas Rule of Civil Procedure 166a on Defendant Cathy S$. Escamilla’s counterclaims against
Plaintiff for real estate fraud, common law fraud, fraud in the inducement, breach of contract or
breach of implied contract, and unjust enrichment.
I. INTRODUCTION
On October 9, 2018, Plaintiff, David Allen Overby, sued Defendant, Cathy S. Escamilla, for
partition of real estate under Texas Property Code Chapter 23.
On November 12, 2018, Defendant answered asserting a general denial to the allegations in
Plaintiff's suit.
On December 11, 2018, Defendant filed counterclaims against Plaintiff for real estate fraud,
common law fraud, fraud in the inducement, breach of contract or breach of implied
contract, and unjust enrichment.
Il. BACKGROUND
The Plaintiff and Defendant are joint owners in fee simple and the sole owners of the real
property located at 3813 Labadie Drive, Richland Hills, Texas 76118 (“Property”).
Plaintiff and Defendant each own an undivided one-half interest in the Property and, as a
result, Plaintiff is entitled to partition of the Property under Texas Property Code §
23.001.
Defendant alleges in her counterclaims that she was the sole owner of the Property in
2008.
Defendant further alleges in her counterclaims that, sometime in 2008, Plaintiff promised
to pay Defendant $14,000 to assist Defendant in paying overdue taxes on the Property
and to pay for various renovations to be completed on the Property. Defendant alleges
Overby v. Escamilla; Cause No. 141-303551-18 Page 1 of 5
Plaintiff's Motion for Summary Judgment on Defendant’s Original Counterclaims
that, in exchange for Plaintiff's promises, Defendant agreed to grant Plaintiff a 50%
interest in the Property.
Defendant alleges that Defendant transferred an interest in the Property to Plaintiff in
2008 in reliance of Plainiff’s promises of future action.
Defendant alleges that, as of the date of this Motion, Plaintiff has not completed the
promises Plaintiff made to Defendant.
Ill. ARGUMENT & AUTHORITIES
10. A plaintiff is entitled to summary judgment on a defendant’s counterclaim if the plaintiff
can prove as a matter of law that it has an affirmative defense to the counter-claim. See
KCM Fin. LLC v. Bradshaw, 457 §.W.3d 70, 79 (Tex. 2015); Johnson & Johnson Med.,
Ine. v. Sanchez, 924 8.W.2d 925, 927 (Tex. 1996). To meet its burden, the plaintiff must
show that there is no genuine issue of material fact on any of the elements of the
affirmative defense. See Tex. R. Civ. P. 166a(c).
11 Plaintiff pleaded the affirmative defenses of the four-year statute of limitations and two-
year statute of limitations, pursuant to Chapter 16 of the Texas Civil Practice and
Remedies Code (““CPRC”), to Defendant’s counterclaims for real estate fraud, common
law fraud, fraud in the inducement, breach of contract or breach of implied contract, and
unjust enrichment.
Defendant's Counterclaim for
s Real Estate Fraud, Common Law Fraud, and Fraud in the
Inducement are Barred by the CPRC § 16.004(a)(4) Four-Year Limitations Period
12. Plaintiff is entitled to summary judgment on Defendant’s counterclaims for real estate
fraud, common law fraud, and fraud in the inducement because the undisputed facts in
this case and Plaintiff's summary-judgment evidence conclusively establish each
essential element of the four-year limitations period pursuant to CPRC § 16.004(a)(4). To
prevail on the affirmative defense of limitations under CPRC § 16.004(a)(4), Plaintiff
must establish that Defendant failed to bring claims for real estate fraud, common law
fraud, and fraud in the inducement within four years of the date the causes of action
accrued.
13 A cause of action accrues, and the statute of limitations begins to run, when facts come
into existence that authorize a claimant to seek a judicial remedy. Exxon Corp. v.
Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex.2011)) (op. on reh'g) (citing
Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.2003)). The
general rule governing when a claim accrues, to start limitations running, is the “legal
injury rule,” which provides that 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.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996).
Overby v. Escamilla; Cause No. 141-303551-18 Page 2 of 5
Plaintiff's Motion for Summary Judgment on Defendant’s Original Counterclaims
14, Generally, in a case of fraud the statute of limitations does not commence to run until the
fraud is discovered or until it might have been discovered by the exercise of reasonable
diligence. See Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 739 (1944).
15 Defendants counterclaims for real estate fraud, common law fraud, and fraud in the
inducement were filed on December 11, 2018 and, pursuant to CPRC § 16.004(a)(4),
these causes of action would have had to accrue on or after December 11, 2014 for the
claims to be within the four-year limitations period.
16. Defendant asserts the promises made by Plaintiff that support her counterclaims for real
estate fraud, common law fraud, and fraud in the inducement occurred sometime in 2008,
approximately ten (10) years before Defendant filed the foregoing claims against
Plaintiff.
17. Defendant could have discovered Plaintiff's fraudulent actions by reasonable diligence
long before December 11, 2014. For Defendant’s counterclaims to be within the
limitations period, Defendant would have to allege that she did not discover that Plaintiff
did not intend to keep his promises to pay Defendant $14,000.00 and to pay for
renovations on the Property for over six years (i.e., 2008 — December 11, 2014) after the
promises by Plaintiff were made.
18, Therefore, Defendant failed to bring claims for real estate fraud, common law fraud, and
fraud in the inducement within four years of the date the causes of action accrued, and the
claims are barred by the four-years statute of limitations pursuant to CPRC §
16.004(a)(4).
Defendant's Counterclaims
for Breach of Contract or Breach of Implied Contract are Barred by
the CPRC § 16.051 Four-Year Limitations Period
19. Plaintiff is entitled to summary judgment on Defendant’s counterclaims for breach of
contract or breach of implied contract because the undisputed facts in this case and
Plaintiff's summary-judgment evidence conclusively establish each essential element of
the four-year limitations period pursuant to CPRC § 16.051. To prevail on the affirmative
defense of limitations under CPRC § 16.051, Plaintiff must establish that Defendant
failed to bring claims for breach of contract or breach of implied contract within four
years of the date the causes of action accrued.
20. A party asserting a breach of contract claim must sue no later than four years after the
day the claim accrues. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002). It is well-settled
that a breach of contract claim accrues when the contract is breached. /d.
21 As stated herein, Defendant alleges breach of contract or breach of implied contract for a
contract entered by Defendant and Plaintiff approximately ten (10) years ago, in 2008.
Plaintiff was to complete payment to Defendant in exchange for a transfer of interest in
the Property by Defendant to Plaintiff. Defendant completed the transfer of Property to
Overby v. Escamilla; Cause No. 141-303551-18 Page 3 of 5
Plaintiff’s Motion for Summary Judgment on Defendant’s Original Counterclaims
Plaintiff in 2008 and, per Defendant’s pleadings, Plaintiff did not complete his
obligations per the agreement and breached the agreement in 2008.
22. Therefore, Defendant failed to bring claims for breach of contract or breach of implied
contract within four years of the date the causes of action accrued, and the claims are
barred by the four-years statute of limitations pursuant to CPRC § 16.051.
Defendant's Counterclaim for Unjust Enrichment is Barred by the CPRC § 16.003(a) Two-Year
Limitations Period
23. Plaintiff is entitled to summary judgment on Defendant’s counterclaim for unjust
enrichment because the undisputed facts in this case and Plaintiffs summary-judgment
evidence conclusively establish each essential element of the two-year limitations period
pursuant to CPRC § 16.003(a). To prevail on the affirmative defense of limitations under
CPRC § 16.003(a), Plaintiff must establish that Defendant failed to bring a claim for
unjust enrichment within two years of the date the cause of action accrued.
24. Unjust enrichment claims are governed by the two-year statute of limitations in section
16.003 of the CPRC. Elledge v. Friberg—Cooper Water Supply Corp. (Elledge Il), 240
S.W.3d 869 (Tex. 2007). A plaintiff may recover under unjust enrichment “ ‘when one
person has obtained a benefit from another by fraud, duress, or the taking of an undue
advantage.’ ” ” BP Auto. LP v. RML Waxahachie Dodge, LLC, 517 S.W.3d 186, 207
(Tex. App.—Texarkana 2017, no pet.) (quoting Protocol Techs., Inc., 406 S.W.3d at 614)
(quoting Heldenjels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992)).
25. As stated herein, the Plaintiff obtained a benefit from Defendant, and the action for
alleged unjust enrichment accrued, in 2008 when Defendant transferred an interest in the
Property to Plaintiff.
26. Therefore, Defendant failed to bring a claim for unjust enrichment within two years of
the date the cause of action accrued, and the claim is barred by the two-years statute of
limitations pursuant to CPRC § 16.0003.
V. CONCLUSION
27. Plaintiff asks for summary judgment in Plaintiff’s favor on all of the above issues, claims,
and theories of recovery, that Defendant take nothing on all counterclaims alleged against
Defendant, and that the Court finds there is no genuine issue as to any material facts and
the Plaintiff is entitled to judgment as a matter of law.
VII. PRAYER
28 For these reasons, Plaintiff asks the Court to grant this motion and sign a partial summary
judgment ordering Defendant take nothing on all counterclaims alleged.
Overby v. Escamilla; Cause No. 141-303551-18 Page 4 of5
Plaintiff’s Motion for Summary Judgment on Defendant’s Original Counterclaims
Respectfully Submitted,
HARGRAVE LAW, P.C.
x
Earl A! Hi) ave
State Bar . 24010780
Rashelle Diane Fetty
State Bar No. 24084555
Benjamin C. Sauer
State Bar No. 24097158
2921 Brown Trail, Suite 150
Bedford, Texas 76021
(817) 282-0679 (direct)
(817) 282-6147 (fax)
earl@ehargravelaw.com
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Plaintiff's Motion for
Summary Judgment on Defendant's Original Counterclaims was served upon Defendant by and
through her attorney of record, Jack Downing, via the Texas eFile Service at
jowningoffice@aol.com in accordance with the Texas Rules of Civil Procedure and Local Rules
Ear! argrave
Attorney for Plaintiff
Overby v. Escamilla; Cause No. 141-303551-18 Page 5 of5
Plaintiff's Motion for Summary Judgment on Defendant’s Original Counterclaims
Preview
141-303551-18 FILED TARRANT COUNTY 1/31/2019 9:00 AM THOMAS A. WILDER CAUSE NO. 141-303551-18 DISTRICT CLERK DAVID ALLEN OVERBY, IN THE DISTRICT COURT Plaintiff Vv. 1415? JUDICIAL DISTRICT CATHY S. ESCAMILLA, Defendant TARRANT COUNTY, TEXAS PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ON DEFENDANT’S ORIGINAL COUNTERCLAIMS Plaintiff, David Allen Overby, asks the Court to sign a summary judgment pursuant to Texas Rule of Civil Procedure 166a on Defendant Cathy S$. Escamilla’s counterclaims against Plaintiff for real estate fraud, common law fraud, fraud in the inducement, breach of contract or breach of implied contract, and unjust enrichment. I. INTRODUCTION On October 9, 2018, Plaintiff, David Allen Overby, sued Defendant, Cathy S. Escamilla, for partition of real estate under Texas Property Code Chapter 23. On November 12, 2018, Defendant answered asserting a general denial to the allegations in Plaintiff's suit. On December 11, 2018, Defendant filed counterclaims against Plaintiff for real estate fraud, common law fraud, fraud in the inducement, breach of contract or breach of implied contract, and unjust enrichment. Il. BACKGROUND The Plaintiff and Defendant are joint owners in fee simple and the sole owners of the real property located at 3813 Labadie Drive, Richland Hills, Texas 76118 (“Property”). Plaintiff and Defendant each own an undivided one-half interest in the Property and, as a result, Plaintiff is entitled to partition of the Property under Texas Property Code § 23.001. Defendant alleges in her counterclaims that she was the sole owner of the Property in 2008. Defendant further alleges in her counterclaims that, sometime in 2008, Plaintiff promised to pay Defendant $14,000 to assist Defendant in paying overdue taxes on the Property and to pay for various renovations to be completed on the Property. Defendant alleges Overby v. Escamilla; Cause No. 141-303551-18 Page 1 of 5 Plaintiff's Motion for Summary Judgment on Defendant’s Original Counterclaims that, in exchange for Plaintiff's promises, Defendant agreed to grant Plaintiff a 50% interest in the Property. Defendant alleges that Defendant transferred an interest in the Property to Plaintiff in 2008 in reliance of Plainiff’s promises of future action. Defendant alleges that, as of the date of this Motion, Plaintiff has not completed the promises Plaintiff made to Defendant. Ill. ARGUMENT & AUTHORITIES 10. A plaintiff is entitled to summary judgment on a defendant’s counterclaim if the plaintiff can prove as a matter of law that it has an affirmative defense to the counter-claim. See KCM Fin. LLC v. Bradshaw, 457 §.W.3d 70, 79 (Tex. 2015); Johnson & Johnson Med., Ine. v. Sanchez, 924 8.W.2d 925, 927 (Tex. 1996). To meet its burden, the plaintiff must show that there is no genuine issue of material fact on any of the elements of the affirmative defense. See Tex. R. Civ. P. 166a(c). 11 Plaintiff pleaded the affirmative defenses of the four-year statute of limitations and two- year statute of limitations, pursuant to Chapter 16 of the Texas Civil Practice and Remedies Code (““CPRC”), to Defendant’s counterclaims for real estate fraud, common law fraud, fraud in the inducement, breach of contract or breach of implied contract, and unjust enrichment. Defendant's Counterclaim for s Real Estate Fraud, Common Law Fraud, and Fraud in the Inducement are Barred by the CPRC § 16.004(a)(4) Four-Year Limitations Period 12. Plaintiff is entitled to summary judgment on Defendant’s counterclaims for real estate fraud, common law fraud, and fraud in the inducement because the undisputed facts in this case and Plaintiff's summary-judgment evidence conclusively establish each essential element of the four-year limitations period pursuant to CPRC § 16.004(a)(4). To prevail on the affirmative defense of limitations under CPRC § 16.004(a)(4), Plaintiff must establish that Defendant failed to bring claims for real estate fraud, common law fraud, and fraud in the inducement within four years of the date the causes of action accrued. 13 A cause of action accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex.2011)) (op. on reh'g) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.2003)). The general rule governing when a claim accrues, to start limitations running, is the “legal injury rule,” which provides that 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.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). Overby v. Escamilla; Cause No. 141-303551-18 Page 2 of 5 Plaintiff's Motion for Summary Judgment on Defendant’s Original Counterclaims 14, Generally, in a case of fraud the statute of limitations does not commence to run until the fraud is discovered or until it might have been discovered by the exercise of reasonable diligence. See Ruebeck v. Hunt, 142 Tex. 167, 176 S.W.2d 738, 739 (1944). 15 Defendants counterclaims for real estate fraud, common law fraud, and fraud in the inducement were filed on December 11, 2018 and, pursuant to CPRC § 16.004(a)(4), these causes of action would have had to accrue on or after December 11, 2014 for the claims to be within the four-year limitations period. 16. Defendant asserts the promises made by Plaintiff that support her counterclaims for real estate fraud, common law fraud, and fraud in the inducement occurred sometime in 2008, approximately ten (10) years before Defendant filed the foregoing claims against Plaintiff. 17. Defendant could have discovered Plaintiff's fraudulent actions by reasonable diligence long before December 11, 2014. For Defendant’s counterclaims to be within the limitations period, Defendant would have to allege that she did not discover that Plaintiff did not intend to keep his promises to pay Defendant $14,000.00 and to pay for renovations on the Property for over six years (i.e., 2008 — December 11, 2014) after the promises by Plaintiff were made. 18, Therefore, Defendant failed to bring claims for real estate fraud, common law fraud, and fraud in the inducement within four years of the date the causes of action accrued, and the claims are barred by the four-years statute of limitations pursuant to CPRC § 16.004(a)(4). Defendant's Counterclaims for Breach of Contract or Breach of Implied Contract are Barred by the CPRC § 16.051 Four-Year Limitations Period 19. Plaintiff is entitled to summary judgment on Defendant’s counterclaims for breach of contract or breach of implied contract because the undisputed facts in this case and Plaintiff's summary-judgment evidence conclusively establish each essential element of the four-year limitations period pursuant to CPRC § 16.051. To prevail on the affirmative defense of limitations under CPRC § 16.051, Plaintiff must establish that Defendant failed to bring claims for breach of contract or breach of implied contract within four years of the date the causes of action accrued. 20. A party asserting a breach of contract claim must sue no later than four years after the day the claim accrues. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex.2002). It is well-settled that a breach of contract claim accrues when the contract is breached. /d. 21 As stated herein, Defendant alleges breach of contract or breach of implied contract for a contract entered by Defendant and Plaintiff approximately ten (10) years ago, in 2008. Plaintiff was to complete payment to Defendant in exchange for a transfer of interest in the Property by Defendant to Plaintiff. Defendant completed the transfer of Property to Overby v. Escamilla; Cause No. 141-303551-18 Page 3 of 5 Plaintiff’s Motion for Summary Judgment on Defendant’s Original Counterclaims Plaintiff in 2008 and, per Defendant’s pleadings, Plaintiff did not complete his obligations per the agreement and breached the agreement in 2008. 22. Therefore, Defendant failed to bring claims for breach of contract or breach of implied contract within four years of the date the causes of action accrued, and the claims are barred by the four-years statute of limitations pursuant to CPRC § 16.051. Defendant's Counterclaim for Unjust Enrichment is Barred by the CPRC § 16.003(a) Two-Year Limitations Period 23. Plaintiff is entitled to summary judgment on Defendant’s counterclaim for unjust enrichment because the undisputed facts in this case and Plaintiffs summary-judgment evidence conclusively establish each essential element of the two-year limitations period pursuant to CPRC § 16.003(a). To prevail on the affirmative defense of limitations under CPRC § 16.003(a), Plaintiff must establish that Defendant failed to bring a claim for unjust enrichment within two years of the date the cause of action accrued. 24. Unjust enrichment claims are governed by the two-year statute of limitations in section 16.003 of the CPRC. Elledge v. Friberg—Cooper Water Supply Corp. (Elledge Il), 240 S.W.3d 869 (Tex. 2007). A plaintiff may recover under unjust enrichment “ ‘when one person has obtained a benefit from another by fraud, duress, or the taking of an undue advantage.’ ” ” BP Auto. LP v. RML Waxahachie Dodge, LLC, 517 S.W.3d 186, 207 (Tex. App.—Texarkana 2017, no pet.) (quoting Protocol Techs., Inc., 406 S.W.3d at 614) (quoting Heldenjels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992)). 25. As stated herein, the Plaintiff obtained a benefit from Defendant, and the action for alleged unjust enrichment accrued, in 2008 when Defendant transferred an interest in the Property to Plaintiff. 26. Therefore, Defendant failed to bring a claim for unjust enrichment within two years of the date the cause of action accrued, and the claim is barred by the two-years statute of limitations pursuant to CPRC § 16.0003. V. CONCLUSION 27. Plaintiff asks for summary judgment in Plaintiff’s favor on all of the above issues, claims, and theories of recovery, that Defendant take nothing on all counterclaims alleged against Defendant, and that the Court finds there is no genuine issue as to any material facts and the Plaintiff is entitled to judgment as a matter of law. VII. PRAYER 28 For these reasons, Plaintiff asks the Court to grant this motion and sign a partial summary judgment ordering Defendant take nothing on all counterclaims alleged. Overby v. Escamilla; Cause No. 141-303551-18 Page 4 of5 Plaintiff’s Motion for Summary Judgment on Defendant’s Original Counterclaims Respectfully Submitted, HARGRAVE LAW, P.C. x Earl A! Hi) ave State Bar . 24010780 Rashelle Diane Fetty State Bar No. 24084555 Benjamin C. Sauer State Bar No. 24097158 2921 Brown Trail, Suite 150 Bedford, Texas 76021 (817) 282-0679 (direct) (817) 282-6147 (fax) earl@ehargravelaw.com Attorneys for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Plaintiff's Motion for Summary Judgment on Defendant's Original Counterclaims was served upon Defendant by and through her attorney of record, Jack Downing, via the Texas eFile Service at jowningoffice@aol.com in accordance with the Texas Rules of Civil Procedure and Local Rules Ear! argrave Attorney for Plaintiff Overby v. Escamilla; Cause No. 141-303551-18 Page 5 of5 Plaintiff's Motion for Summary Judgment on Defendant’s Original Counterclaims