McEwen v. Pace
| Decision Date | 28 April 1976 |
| Docket Number | No. 15503,15503 |
| Citation | 538 S.W.2d 426 |
| Parties | John J. McEWEN, Jr., Independent Executor of the Estate of Bessie McEwen Spence, Appellant, v. Joe Dudley PACE, Appellee. |
| Court | Texas Court of Appeals |
Jack Pasqual, Law Office of Pat Maloney, San Antonio, for appellant.
Morris E. Belilove, Houston, for appellee.
Plaintiff, John J. McEwen, Jr., independent executor of the estate of Bessie McEwen Spence, appeals from a summary judgment rendered in favor of defendant, Joe Dudley Pace.
Plaintiff sought damages arising from the alleged fraud of defendant. According to plaintiff's petition, defendant, who had acted as the stockbroker of plaintiff's decedent during her lifetime, fraudulently appropriated to his own use stocks and other securities belonging to such decedent, who died on November 1, 1966. The defendant's motion for summary judgment was based on the theory that plaintiff's suit, which was filed on September 19, 1973, was barred by limitations, since the cause of action asserted by plaintiff arose no later than November 1, 1966.
Defendant's affidavit attached to his motion for summary judgment asserted that defendant was present when plaintiff's deposition was taken, and that during the course of such deposition plaintiff stated that he had talked to defendant about stock owned by decedent, and that defendant had refused to give details as to the alleged sale of such stock. The affidavit recited that plaintiff had in fact questioned defendant concerning stocks owned by the decedent and that defendant did in fact refuse to give plaintiff any information. The inquiries by plaintiff and the refusal to divulge information by defendant occurred 'shortly after November 1, 1966.'
In answer to the motion for summary judgment plaintiff alleged defendant had willfully and consciously concealed his fraudulent acts from plaintiff, and that plaintiff 'could not by the exercise of reasonable care and diligence discover said fraud until it was discovered by him in the year 1973, shortly before he filed suit against' defendant. Plaintiff alleged that he made the efforts 'of an ordinary prudent person in discovering such fraud, but could not have discovered same prior to 1973.' This reply was supported by plaintiff's affidavit to the effect that he had not discovered the true facts until 1973, and that before that time he had no reason to suspect defendant.
In his deposition plaintiff stated that he had no indication of the nature of defendant's conduct until 1973; two persons told him, by telephone, that the sale of the stocks 'was not proper' and that decedent 'had not been treated properly in the matter.'
In his second...
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Pace v. McEwen, 6727
...that the summary judgment proof did not preclude the absence of an issue of material fact concerning the defense of limitations. McEwen v. Pace, 538 S.W.2d 426 (Tex.Civ.App. San Antonio 1976, no writ). Contrary to the Plaintiff's first argument, that holding did not establish the point as a......