Abshier v. Long, 13-20-00343-CV

CourtCourt of Appeals of Texas
Decision Date17 February 2022
Docket Number13-20-00343-CV
PartiesVERNON MICHAEL ABSHIER, Appellant, v. MELVA E. LONG, Appellee.


MELVA E. LONG, Appellee.

No. 13-20-00343-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

February 17, 2022

On appeal from the 405th District Court of Galveston County, Texas.

Before Justices Hinojosa, Tijerina, and Silva



Appellant Vernon Michael Abshier brought a suit against his sister, appellee Melva E. Long, asserting multiple claims seeking compensation for property Long sold. Long moved for summary judgment on all of Abshier's claims. By nine issues, which we have


consolidated into three, [1] Abshier asserts that the trial court erred in granting Long's no-evidence and traditional summary judgment motion. We affirm.[2]

I. Background

A. The Property Conveyances

This suit concerns lots 43, 44, 45, and 46 in Block 102 of 534 4th Street, San Leon, Texas (the property), which was deeded to Long by Tom Sprague and Wanda Sprague on November 7, 2003 (2003 Deed).[3] The 2003 Deed was filed and recorded, and a copy of the deed appears in the record.

It is undisputed that Long never resided on the property, and Abshier moved onto the property, into a trailer provided by Long, shortly after the 2003 Deed was executed. According to Abshier, "[f]or the next eight (8) years," he gave Long $700 each month "to


pay for the note payment[4] and the utilities and taxes." Long disputes this, stating that any payment collection was for rent, "two-thirds of the time, [Abshier] did not [pay rent]," and at most, Abshier gave her "enough to pay utilities."

In September 2008, Hurricane Ike struck, causing damage to the trailer on the property. Abshier briefly resided at another property owned by Long. At some unspecified point, Abshier stated he "went and applied" for Federal Emergency Management Agency "[(]FEMA[)] money" to obtain a temporary "FEMA [t]railer," which he placed on the property at issue. Abshier stated he lived in the FEMA trailer "for several years before [he] qualified for the free $84, 995.29 home" (FEMA house). Apart from Abshier's affidavit, wherein he states he received the FEMA trailer because he "told FEMA that the land was [his]," no documents in the record concern the FEMA trailer.

On December 8, 2010, Long and Abshier executed a quitclaim deed (2010 Deed) Long conveyed to Abshier one-half interest in the property. The 2010 Deed was filed and recorded. The parties agree that this deed was executed in response to FEMA's involvement in the property but dispute several related facts.

Abshier states in his affidavit that the 2010 Deed followed a discussion regarding the "fact that the FEMA house was being built on [his] land and that [he and Long] needed to get the title to the land in [his] name." Abshier explained that the property was deeded to him "without any money being paid to [Long] . . . because the [property] had belonged


to [him] all along" pursuant to a prior oral agreement. Abshier said he "did not notice that [Long] had only deeded [him] half" of the property when the 2010 Deed was executed.

Long stated she executed the 2010 Deed because she became concerned about her own liability and potential property loss: "The purpose was so the federal government couldn't come after me for him [sic] doing fraud." Long said she did not assist Abshier in completing any FEMA paperwork, and he never disclosed to her how he became eligible to receive the FEMA trailer or federal funds for the FEMA house. Long maintained that Abshier showed her "his FEMA papers" for the first time after the FEMA house was constructed, and Abshier told her that he needed $6, 500. The documents purportedly cautioned that "if [Abshier] didn't come up with [$6, 500], they could take the property." The parties agree they jointly applied for and received a private loan for $6, 500.

On May 31, 2011, Abshier executed[5] a "Due on Sale and Transfer of Property Disclosure" and accompanying unsecured forgivable promissory note in the amount of $84, 995.29 through the Community Development Block Grant (CDBG) Disaster Recovery Program. The document contained language admonishing Abshier that the loan was contingent on Abshier living in a house on the property as his principal place of residence "during the term of the loan for a period of three[] (3) years following completion of construction and repay the loan to the Lender according to the terms of the Unsecured Note." The document further warned that selling or moving from the property during the defined period would result in the acceleration of any unforgiven and unpaid balance on


the unsecured note, including interest if applicable. Abshier was also required to obtain and maintain flood and hazard insurance.

On August 11, 2014, a warranty deed (2014 Deed) was filed and recorded, wherein Abshier allegedly conveyed to Long his entire half interest in the property. Abshier disputes that his signature is on the notarized[6] deed, claiming that someone forged his signature.

On October 7, 2014, a release of lien on the property created by the CDBG loan was effected.

On March 7, 2017, Long filed a forcible detainer action against Abshier and Abshier's daughter, Lindsey Abshier. According to the forcible detainer petition, Long agreed to allow Abshier to live on the property but after proper notice of terminating tenancy, Abshier refused to vacate the residence; Lindsey had never been given permission to reside at the residence. A default judgment was issued followed by a writ of possession. Abshier then went on to briefly live in a trailer on another piece of property owned by Long.

Approximately one year later, in April 2018, Long sold a portion of the property, lots 43 and 44, for $100, 000. She sold lots 45 and 46 in June 2018 for $40, 000.


B. The Suit

Abshier asserted the following causes of action against Long in his live petition[7]: breach of contract, promissory estoppel, "conversion/constructive trust," common law fraud, violation of the Texas Theft Liability Act (TTLA), and "money had and received and constructive trust."[8] Abshier's claims were all premised on allegations that Long, in contravention to their long-standing agreement to transfer ownership of the property to Abshier, sold the property without his knowledge and never paid him any proceeds. Notably, as Abshier clarifies in a later motion: "[Abshier's] suit is not for theft of the land, nor for the forging of the deed. [Abshier] is suing for his half of the $140, 000 (or more) that [Long] admits that she kept and never paid him." Abshier also "plead[ed] the application of the discovery rule and fraudulent concealment to the extent that the statute of limitations for any of the above causes of action may have otherwise passed."

On April 9, 2020, Long moved for no-evidence and traditional summary judgment on the affirmative defense of limitations for four of Abshier's six claims and asserted a statute of frauds defense for all six claims. Abshier's statute of limitations defense concerned Abshier's promissory estoppel, common law fraud, "conversion/constructive


trust," and "money had and received and constructive trust" claims. Long's no-evidence analysis was limited to Abshier's claims for promissory estoppel, TTLA violation, conversion, and "money had and received and constructive trust."

Abshier filed a response to Long's summary judgment motion on May 8, 2020, arguing Long failed to "comply with the no-evidence summary judgment rule" so the burden never shifted to him to show proof of the challenged claims. Abshier disputed the applicability of Long's asserted affirmative defenses and raised exceptions in the alternative. Abshier declined to address his causes of action for constructive trust, common law fraud, or money had and received, stating that Long "ha[d] not raised them" in her summary judgment motion.

On June 24, 2020, the trial court granted traditional and no-evidence summary judgment in Long's favor and ordered that Abshier take nothing on all of his claims against Long. This appeal followed.[9]

II. Issues Presented

By three consolidated issues, Abshier argues (1) Long did not meet her no-evidence summary judgment burden because she failed to identify the elements of the


causes of action that he allegedly could not produce evidence of; (2) with respect to Long's traditional summary judgment motion, Long's affirmative defenses of statute of frauds and statute of limitations do not apply and alternatively, an exception exists to avert their application; and (3) because of the existence of a fiduciary duty between the parties, the burden was on Long-not Abshier-to "establish the validity of any particular transaction in which she is involved."

III. Summary Judgment Standard of Review and Applicable Law

Our review of a summary judgment is de novo. Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021). We take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Bush v. Lone Oak Club, LLC, 601 S.W.3d 639, 646 (Tex. 2020). "When a party moves for both traditional and no-evidence summary judgments, we first consider the no-evidence motion." First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). Under Rule 166a(i), a party may move for a no-evidence motion for summary judgment "on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." Tex.R.Civ.P. 166a(i). "To defeat a no-evidence motion, the non[]movant must produce evidence raising a genuine issue of material fact as to the challenged elements." Parker, 514 S.W.3d at 220. "If the non[]movant fails to meet its burden under the no-evidence motion, there is no need to address the challenge to the...

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