Kelly v. Dorsett
| Decision Date | 24 April 1979 |
| Docket Number | No. 19892,19892 |
| Citation | 581 S.W.2d 512 |
| Parties | Daniel KELLY et al., Appellants, v. Sally Jo Dallas Mallow Kelly DORSETT et al., Appellees. |
| Court | Texas Court of Appeals |
Calvin A. Barker, Jr., Dallas, for appellants.
Les E. Shackleford, Jr., Dallas, Gerald S. Reamey, Power, Ashley & Kinkeade, Irving, for appellees.
Before AKIN, ROBERTSON and CARVER, JJ.
Plaintiffs, heirs of James B. Kelly, deceased, sued his independent executrix, Sally Jo Dorsett and others, in 1977 for conspiracy and fraud in disposing of certain assets of the decedent. All defendants filed motions for summary judgment on the ground that the statute of limitations had run because plaintiff knew or should have known of the alleged fraud at the time a final accounting was filed in the probate court on December 17, 1971. Consequently, defendants reason that limitations ran in 1975, four years after the final accounting in 1971, and therefore, this suit was barred when it was filed on November 13, 1977. The trial court granted summary judgment on this ground. We hold, however, that under the "discovery rule" the time when the plaintiffs knew or should have known of the fraud was a question of fact and could not be determined on summary judgment. Accordingly, we reverse and remand.
Plaintiffs alleged that the executrix in violation of her fiduciary duty to the estate under the Texas Probate Code entered into a conspiracy with the other defendants to defraud plaintiffs. In this respect, plaintiffs alleged that on November 1, 1970, the defendant executrix sold an apartment complex to her daughter and son-in-law by lending them the purchase money. On May 10, 1971, the apartment complex was resold to the executrix for cancellation of the indebtedness, but the deed was not filed for record until April 26, 1972. The final accounting of the executrix was filed December 17, 1971. During the time the property was held in the name of the executrix's daughter and son-in-law, the executrix collected all rents and paid all expenses in her individual capacity. On December 30, 1970, the same date on which the apartment complex was sold out of the estate, the executrix conveyed from the estate a residence to appellee Pursley. On March 10, 1972, this property was also reconveyed to the executrix and was treated similarly to the apartment complex. On February 4, 1971, the executrix conveyed out of the estate a third property to defendants Wuensche in exchange for property conveyed to her individually by the Wuensches. The final accounting filed by the executrix on December 17, 1971, showed that the estate received $10,225.76 for the sale of this property, but did not show receipt of any property in exchange as defendants Wuensche allege. The sale contracts on the exchange of properties between the Wuensches and executrix were executed on February 5, 1971, but closing on each occurred on different days and at different title companies. Plaintiffs alleged that these facts constituted a conspiracy to defraud them and that they did not discover the fraud until 1977.
In support of the judgment, defendants argue that since the plaintiff's petition shows on its face: (1) the alleged fraudulent acts took place in 1971; (2) a final accounting was filed on December 17, 1971; and (3) suit was filed in 1977, the suit is barred by the four year statute of limitations. Tex.Rev.Civ.Stat.Ann. art. 5529 (Vernon 1958). They reason that since plaintiffs had employed an attorney to check the final accounting, they knew or reasonably should have known of the alleged fraud at the time of the filing of the final accounting on December 17, 1971. We cannot agree. Although the plaintiffs' petition alleged that the fraud occurred in 1971, it also alleged that plaintiffs did not discover the fraud until July of 1977 and that plaintiffs could not have learned of the fraud by the exercise of due diligence since there was nothing in the final accounting to incite their...
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