Summary
holding that later-filed motion for summary judgment substituted for and supplanted earlier one
Summary of this case from 417 N Comanche St. v. HaugOpinion
04-21-00302-CV
07-27-2022
William FAGAN, Appellant v. AARON & QUIRK, LLP; Anne Marie Cerda Aaron; and Thomas Edward Quirk, Appellees
From the 438th Judicial District Court, Bexar County, Texas Trial Court No. 2017-CI-17818 Honorable Norma Gonzales, Judge Presiding.
Sitting: Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice, Lori I. Valenzuela, Justice.
MEMORANDUM OPINION
Patricia O. Alvarez, Justice.
Appellant William Fagan appeals from the trial court's order granting summary judgment against all his claims based on the defendants' affirmative defense of statute of limitations.
The summary judgment evidence negates the discovery rule and conclusively establishes defendants' affirmative defenses against Fagan's fraud and breach of fiduciary duty claims, and we affirm those portions of the trial court's order.
However, because the summary judgment evidence does not conclusively establish that all of Fagan's breach of contract or quantum meruit claims accrued more than four years before he filed his original petition, we reverse that portion of the trial court's order, and we remand the cause.
Background
To begin, we recite the facts as asserted by the nonmovant, William Fagan.
In early 2013, Fagan was contacted by Ann-Marie Cerda Aaron, a partner with Aaron & Quirk, LLP, (A&Q) about Fagan leaving his then-current law firm to work for A&Q. Aaron explained the job opportunity and made representations to Fagan about his earning potential with A&Q.
On May 6, 2013, Fagan began working for A&Q. After working on A&Q's cases for several months, on September 2, 2013, Fagan sent an e-mail titled "Let's improve this" to Aaron and Thomas Quirk-a partner in A&Q-"to recount my experience with your firm and to make a fervent appeal that significant efforts be made to enhance my prospects for generating an income more in keeping with the discussions which enticed my joining the firm." Fagan's e-mail included specific complaints such as he was not receiving the number or quality of files he was promised, staff problems were delaying resolution of his cases, and his income received to date was less than $5,000.
Fagan's employment was terminated on September 16, 2013.
A. Fagan's First Amended Original Petition
About four years later, on September 15, 2017, Fagan filed his original petition. Subsequently, in his first amended original petition, Fagan asserted claims for breach of contract and fraud against Aaron and A&Q, breach of fiduciary duty by Aaron, and in the alternative, quantum meruit against Aaron, Quirk, and A&Q. Fagan also pled the discovery rule. His first amended petition seeks damages, costs, and attorney's fees.
B. Defendants' Prior Motions for Summary Judgment
In response, Aaron, Quirk, and A&Q (Defendants) filed their Defendants' Joint Motion for No-Evidence Summary Judgment and for Traditional Summary Judgment. The joint motion argued that all of Fagan's claims were barred by limitations, and there was no evidence of at least one essential element of each of Fagan's claims. Later, in their May 29, 2018 First Amended Joint Motion for No-Evidence Summary Judgment and for Traditional Summary Judgment, Defendants reasserted the same arguments.
C. Defendants' Motion for Summary Judgment
About thirty-four months later, on March 19, 2021, Defendants filed their "Defendants' Motion for Summary Judgment," which moved for traditional summary judgment based solely on the affirmative defense of limitations. Defendants argued that Fagan's e-mail was conclusive proof that his claims arose-and he discovered the facts on which he based his claims-not later than when he wrote his e-mail on September 2, 2013.
D. Motion under Review
On April 30, 2021, the trial court signed an order granting "Defendants' Motion for Summary Judgment." The order states as follows:
On April 14, 2021, the Court called for hearing Defendants' Motion for Summary Judgment. . . . The Court considered the Motion, the Response opposing the Motion, the Court's records of this case, and the arguments of counsel for the parties. . . . The Court hereby grants the Motion for Summary Judgment.
The order identifies the motion it heard and granted as "Defendants' Motion for Summary Judgment," which is the title of Defendants' March 19, 2021 motion.
The March 19, 2021 motion does not identify itself as a supplemental motion for summary judgment, nor does it mention or incorporate by reference the May 29, 2018 "First Amended Joint Motion for No-Evidence Summary Judgment and for Traditional Summary Judgment."
The trial court's April 30, 2021 order does not mention Defendants' "First Amended Joint Motion for No-Evidence Summary Judgment and for Traditional Summary Judgment" or otherwise indicate that it considered or ruled on that motion.
On appeal, the parties limit their arguments to the merits of the March 19, 2021 motion.
Therefore, we conclude that the March 19, 2021 "Defendants' Motion for Summary Judgment" substituted for, and supplanted, the May 29, 2018 "First Amended Joint Motion for No-Evidence Summary Judgment and for Traditional Summary Judgment." See Gary E. Patterson & Associates, P.C. v. Holub, 264 S.W.3d 180, 191-92 (Tex. App.-Houston [1st Dist.] 2008, pet. denied) (noting that a "second summary-judgment motion that did not include [the] word 'amended' in [the] title [nevertheless] super[s]ede[d] and supplant[ed] the previous motion" (quoting Dall. Indep. Sch. Dist. v. Finlan, 27 S.W.3d 220, 231 (Tex. App.-Dallas 2000, pet. denied), abrogated in part on other grounds by Landry's, Inc. v. Animal Legal Def. Fund, 631 S.W.3d 40, 48 (Tex. 2021))); Gibson v. Park Cities Ford, Ltd., 174 S.W.3d 930, 932 (Tex. App.- Dallas 2005, no pet.) ("An amended motion for summary judgment super[s]edes and supplants the previous motion, which may no longer be considered.").
Thus, the only motion under our review is the March 19, 2021 "Defendants' Motion for Summary Judgment." That motion moved for judgment only on limitations, and accordingly, the only ground we consider is limitations. See Tex. R. Civ. P. 166a(c) ("The motion for summary judgment shall state the specific grounds therefor."); Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (per curiam) ("A trial court cannot grant summary judgment on grounds that were not presented.").
Issues Presented
In his brief, Fagan raises five issues: his first four argue that summary judgment was not proper because Defendants failed to conclusively prove the accrual date for his claims of (1) breach of contract, (2) quantum meruit, (3) fraud, and (4) breach of fiduciary duty.
In his fifth issue, Fagan argues that summary judgment was not proper because he raised a fact issue in avoidance of Defendants' limitations defense.
In response to all Fagan's issues, Defendants insist that Fagan's original petition is based on the same facts raised in his September 2, 2013 e-mail, his e-mail shows all claims arose not later than September 2, 2013-which is more than four years before he filed his original petition on September 15, 2017-and the facts in his e-mail negate the discovery rule and conclusively establish that all his claims are barred by limitations.
Before we address the parties' arguments, we briefly recite the standard of review and the generally applicable law.
Standard of Review, Applicable Law
A. Standard of Review
We review a trial court's grant of a traditional motion for summary judgment de novo. Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017); Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). In our de novo review, "we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor." ConocoPhillips Co. v. Koopmann, 547 S.W.3d 858, 865 (Tex. 2018); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
B. Limitations Defense
"A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense." Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 593 (Tex. 2017) (quoting KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999)). To establish that defense and "obtain summary judgment on limitations grounds, the movant must conclusively establish the accrual date of the cause of action." Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 708 (Tex. 2021) (citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005)).
"In cases in which the plaintiff pleads the discovery rule, the defendant moving for summary judgment on limitations bears the additional burden of negating the rule." Schlumberger Tech. Corp. v. Pasko, 544 S.W.3d 830, 834 (Tex. 2018); accord KPMG, 988 S.W.2d at 748.
C. Accrual Date
"Unless an accrual date is prescribed by statute, '[c]auses of action accrue and statutes of limitations begin to run when facts come into existence that authorize a claimant to seek a judicial remedy.'" Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016) (quoting Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 202 (Tex. 2011)).
However, when it is pled and applies, "[t]he discovery rule delays accrual until the plaintiff 'knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury,'" Pasko, 544 S.W.3d at 834 (quoting S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)).
"When a cause of action accrues is typically a question of law." Valdez v. Hollenbeck, 465 S.W.3d 217, 229 (Tex. 2015) (citing Emerald Oil, 348 S.W.3d at 202).
Breach of contract
In his first issue, Fagan argues the trial court erred in granting Defendants' motion for summary judgment on his breach of contract claims because Defendants did not conclusively negate the discovery rule and establish that all his breach of contract claims against Defendants accrued more than four years before he sued.
A. Applicable Law
For a breach of contract claim, the applicable limitations period is four years. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3); Nghiem v. Sajib, 567 S.W.3d 718, 722 n.20 (Tex. 2019) (interpreting section 16.004 and noting the court's precedent "to treat 'debt' actions under section 16.004 as breach-of-contract actions" (quoting Elledge v. Friberg-Cooper Water Supply Corp., 240 S.W.3d 869, 870 (Tex. 2007) (per curiam))); cf. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002) (per curiam) (citing Tex. Civ. Prac. & Rem. Code Ann. § 16.051) (applying the four-year residual limitations period to a breach of contract claim).
Generally, "a cause of action for breach of contract accrues at the moment the contract is breached." Archer v. Tregellas, 566 S.W.3d 281, 288 (Tex. 2018); accord Stine, 80 S.W.3d at 592.
However, "[w]hen recovery is sought on an obligation payable in installments, the statute of limitations runs against each installment from the time it becomes due." Beesley v. Hydrocarbon Separation, Inc., 358 S.W.3d 415, 425 (Tex. App.-Dallas 2012, no pet.); Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354, 362 (Tex. App.-Dallas 2009, pet. denied).
Similarly, "[w]hen the terms of an agreement call for fixed, periodic payments, . . . a separate cause of action arises for each missed payment." Trelltex, Inc. v. Intecx, L.L.C., 494 S.W.3d 781, 786 (Tex. App.-Houston [14th Dist.] 2016, no pet.); accord Davis Apparel v. Gale-Sobel, a Div. of Angelica Corp., 117 S.W.3d 15, 18 (Tex. App.-Eastland 2003, no pet.) (applying the continuing contract exception to an agreement for the payment of commissions).
"Thus, a suit for the breach of a contract requiring payment in periodic installments may include all payments due within the four-year statute of limitations period, even if the initial breach was beyond the limitations period." Spin Doctor Golf, 296 S.W.3d at 362; see Trelltex, 494 S.W.3d at 786-87; Davis Apparel, 117 S.W.3d at 18; cf. Hart v. Int'l Tel. & Tel. Corp., 546 S.W.2d 660, 662 (Tex. App.-San Antonio 1977, writ ref'd n.r.e.).
However, "[r]ecovery of any payment more than four years overdue is barred." Beesley, 358 S.W.3d at 427 (alteration in original) (quoting Spin Doctor Golf, 296 S.W.3d at 362); see Hart, 546 S.W.2d at 662.
B. Summary Judgment Evidence
To determine whether Fagan's breach of contract claims accrued more than four years before he filed suit, we begin by reviewing the record and the summary judgment evidence.
The record conclusively establishes, inter alia, (1) the contents of Fagan's September 2, 2013 e-mail to Aaron and Quirk, (2) that Fagan's employment with A&Q was terminated on September 16, 2013, and (3) that Fagan filed suit on September 15, 2017.
The summary judgment evidence includes Fagan's affidavit, which averred the following facts.
Before he was hired, Aaron told Fagan he would be paid 25% of A&Q's recoveries on cases he worked on that resulted in settlements for A&Q. As he worked at A&Q, he received biweekly commission payments with explanatory accounting summaries showing the payment details. Fagan was not paid until A&Q received the recoveries, so the payments and explanatory summaries typically lagged the settlement dates by several weeks.
He worked to settle cases throughout his employment, and on September 13, 2013, he emailed Aaron asking for permission to settle four cases from which A&Q would recover more than $50,000.
On September 16, 2013, when Fagan's employment was terminated, Quirk told Fagan that he "would be properly compensated for all the work [Fagan had] performed."
By September 18, 2013, Fagan lost access to A&Q's computer systems including his work e-mails and A&Q's database, but he continued to receive bi-weekly payments and accounting summaries from A&Q until its last payment to him on October 28, 2013. After he received the last payment and accounting summary, Fagan determined that he had not been paid 25% of the settlement proceeds for all the cases he worked.
C. Some Claims Not Barred
Taking Fagan's facts as true, making all reasonable inferences in his favor, see Koopmann, 547 S.W.3d at 865; Valence Operating, 164 S.W.3d at 661, and applying the discovery rule, we conclude that some of Fagan's breach of contract claims accrued within the four-year period preceding his suit on September 15, 2017. See Nghiem, 567 S.W.3d at 722 n.20 (four-year period); Pasko, 544 S.W.3d at 834.
According to his affidavit, Fagan was promised 25% of A&Q's recoveries for cases he worked on, to be paid as commissions. His commission payments were made bi-weekly, and the payments typically lagged the case's settlement by several weeks; thus, each claim accrued when he received the payment and explanatory summary. See Pasko, 544 S.W.3d at 834; Beesley, 358 S.W.3d at 425; Spin Doctor Golf, 296 S.W.3d at 362.
When Fagan was terminated on September 16, 2013, Quirk told him A&Q would pay Fagan for all the work he had done, which included four cases he had arranged to settle, from which A&Q would recover more than $50,000, but for which Fagan had not yet received payment from A&Q. Cf. Davis Apparel, 117 S.W.3d at 18; Hart, 546 S.W.2d at 662. A&Q continued to send Fagan commission payments for his prior work until October 28, 2013.
D. Summary Judgment Burden Not Met
To be entitled to summary judgment against Fagan's breach of contract claims, Defendants had to negate the discovery rule and conclusively prove their affirmative defense of limitations. See Eagle Oil, 619 S.W.3d at 708; Pasko, 544 S.W.3d at 834.
But here, Defendants presented no evidence that before Fagan received the bi-weekly commission payments and the accompanying explanatory accounting summaries showing the payment details, he could have reasonably discovered any underpayment of commissions. See Pasko, 544 S.W.3d at 834 ("The discovery rule delays accrual until the plaintiff 'knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury.'" (quoting S.V., 933 S.W.2d at 4)).
Having reviewed Fagan's claims and the summary judgment evidence, we conclude Fagan's breach of contract causes of action did not accrue until Fagan received payments and explanatory accounting summaries that showed A&Q was not compensating Fagan according to their alleged agreement. See Pasko, 544 S.W.3d at 834; Beesley, 358 S.W.3d at 425; Spin Doctor Golf, 296 S.W.3d at 362. Accordingly, any of Fagan's breach of contract claims that accrued before September 15, 2013, are barred, but those that accrued afterwards are not. See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.004(a)(3), .051; Nghiem, 567 S.W.3d at 722 n.20; Pasko, 544 S.W.3d at 834. Thus, the trial court erred when it granted Defendants' motion on all of Fagan's breach of contract claims.
We sustain Fagan's first issue.
Quantum Meruit
In his second issue, Fagan argues the trial court erred in granting Defendants' motion for summary judgment on his quantum meruit claims, that he pled in the alternative, because Defendants did not negate the discovery rule and conclusively establish that all his claims against them for the valuable services he provided accrued more than four years before he sued.
A. Applicable Law
"An attempt to recover the value of materials and services rendered and accepted in quantum meruit is 'a species of a suit for debt.'" Pepi Corp. v. Galliford, 254 S.W.3d 457, 460 (Tex. App.-Houston [1st Dist.] 2007, pet. denied) (quoting Mann v. Jack Roach Bissonnet, Inc., 623 S.W.2d 716, 718 (Tex. App.-Houston [1st Dist.] 1981, no writ)). Thus, for a quantum meruit claim, the applicable limitations period is four years. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(3) (setting a four-year limitations period for a suit for "debt"); Quigley v. Bennett, 256 S.W.3d 356, 361 (Tex. App.-San Antonio 2008, no pet.) (recognizing a four-year limitations period for a quantum meruit suit).
Regarding an accrual date, "when a party is basing its actions solely on an implied contract, the cause accrues from the time services are performed, rendered, and received." Thomason v. Freberg, 588 S.W.2d 821, 827 (Tex. App.-Corpus Christi 1979, no writ) (analyzing Scott v. Walker, 170 S.W.2d 718 (Tex. [Comm'n Op.] 1943) and City of Houston v. Finn, 161 S.W.2d 776 (Tex. 1942)).
If there is evidence that payments for services were made at periodic intervals, the limitations begin to run after the period expires. See Trelltex, 494 S.W.3d at 786-87 (recognizing, in a suit for underpaid commissions, that "a separate cause of action arises for each missed payment"); Beesley, 358 S.W.3d at 425 (breach of contract); Hart, 546 S.W.2d at 662 (underpaid commissions); cf. Thomason, 588 S.W.2d at 828 (noting that, in that case, "the[] services were not of such a nature that a court would imply a condition of payment at periodic intervals such that limitations would begin to run after, for example, each week's or each month's work").
And if the discovery rule applies, "[it] delays accrual until the plaintiff 'knew or in the exercise of reasonable diligence should have known of the wrongful act and resulting injury.'" Pasko, 544 S.W.3d at 834 (quoting S.V., 933 S.W.2d at 4).
B. Summary Judgment Evidence
To determine whether Fagan's quantum meruit claims accrued more than four years before he filed suit, we begin by reviewing the record and the summary judgment evidence.
The record conclusively establishes, inter alia, (1) the contents of Fagan's September 2, 2013 e-mail to Aaron and Quirk, (2) that Fagan's employment with A&Q was terminated on September 16, 2013, and (3) that Fagan filed suit on September 15, 2017. The summary judgment evidence includes Fagan's affidavit, whose relevant facts we recited in our breach of contract claims analysis.
The same facts are applicable here, but for brevity, we do not repeat them.
C. Some Claims Not Barred
Taking his facts as true, and making all reasonable inferences in his favor, see Koopmann, 547 S.W.3d at 865; Valence Operating, 164 S.W.3d at 661, we conclude that some of Fagan's quantum meruit claims accrued within the four-year period preceding his suit on September 15, 2017. See Nghiem, 567 S.W.3d at 722 n.20 (four-year period); Pasko, 544 S.W.3d at 834.
According to his affidavit, Fagan was not paid all that he was owed by A&Q, and he could not discover the underpayments until after he received the explanatory accounting summaries that showed whether he was paid the promised 25% of A&Q's recoveries for cases he worked on.
Therefore, we conclude Fagan's quantum meruit causes of action did not accrue until Fagan received the payments and the explanatory accounting summaries revealing the alleged underpayment. See Beesley, 358 S.W.3d at 425; Spin Doctor Golf, 296 S.W.3d at 362. Thus, any of Fagan's quantum meruit claims that accrued before September 15, 2013, are barred, but those that accrued afterwards are not. See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.004(a)(3), .051; Nghiem, 567 S.W.3d at 722 n.20; Thomason, 588 S.W.2d at 827. Accordingly, the trial court erred when it granted Defendants' motion on all of Fagan's quantum meruit claims. We sustain Fagan's second issue.
Fraud
In his third issue, Fagan argues the trial court erred in granting Defendants' motion for summary judgment on his fraud claim because Defendants did not conclusively establish that his fraud claim accrued more than four years before he sued.
A. Applicable Law
The statute of limitations for a fraud claim is four years. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(4); Nghiem, 567 S.W.3d at 722 n.20; accord Ford v. Exxon Mobil Chem. Co., 235 S.W.3d 615, 617 (Tex. 2007).
"[L]imitations does not start to run until the fraud is discovered or the exercise of reasonable diligence would discover it." Hooks v. Samson Lone Star, Ltd. P'ship, 457 S.W.3d 52, 57 (Tex. 2015); accord United Healthcare Servs., Inc. v. First St. Hosp. LP, 570 S.W.3d 323, 335 (Tex. App.-Houston [1st Dist.] 2018, pet. denied); see Pasko, 544 S.W.3d at 834 (discovery rule).
"To obtain summary judgment on limitations grounds, the movant must conclusively establish the accrual date of the cause of action." Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 708 (Tex. 2021) (citing Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005)).
B. Discussion
Because Fagan filed his petition on September 15, 2017, Defendants' burden against Fagan's fraud claim was to negate the discovery rule and conclusively prove that the claim accrued before September 15, 2013. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(4) (four-year limitation); Eagle Oil, 619 S.W.3d at 708; Hooks, 457 S.W.3d at 57.
To determine whether Defendants met their burden, we review the summary judgment evidence and the record, beginning with Fagan's fraud claim.
1. Fraud Claim in Petition
In his first amended original petition, Fagan's fraud claim alleges Aaron and A&Q made false material representations about his earnings potential to induce him to join A&Q. Specifically, Fagan claimed he was assured that he could earn more than $85,000 annually, and he would receive 25% of what A&Q recovered on his cases. Further, A&Q's client files would be distributed to firm attorneys impartially, and a seasoned, efficient staff would help him work his files. Fagan claimed that the Defendants' material representations were false or were made recklessly without knowledge of their truth, he relied on them to his detriment, and he was damaged.
2. Fraud Facts in Fagan's E-mail
In Fagan's September 2, 2013 e-mail to Aaron and Quirk, he recites facts about how he was recruited to work at A&Q and some of his specific concerns about his work and compensation to date.
Fagan recounted that Aaron assured him he could make more money at A&Q than he was making at his present job, and another attorney at A&Q "made in the mid-80s." He joined A&Q based on Aaron's representations, but after four months, the files he had received were not distributed impartially, and they had "a remarkably low prospect of realizing a recovery." His efforts were hampered by "staff inattention to service of process delays; the departure of 3 legal assistants and 2 front-desk assistants." And he added that his earnings were less than half of what he was promised despite Aaron and Quirk repeatedly assuring him his income would drastically improve.
C. Defendants Met Summary Judgment Burden
Fagan's complaints in his September 3, 2013 e-mail conclusively establish that those alleged facts had come into existence not later than September 3, 2013, Fagan knew of those facts at the time, and those facts are the basis for Fagan's fraud claim. See Hooks, 457 S.W.3d at 57 (noting that limitations begin to run when the fraud is discovered).
Thus, Defendants met their burden to conclusively establish the fraud claim accrual date was more than four years before Fagan filed his original petition. See Eagle Oil & Gas, 619 S.W.3d at 708 ("To obtain summary judgment on limitations grounds, the movant must conclusively establish the accrual date of the cause of action."). We conclude that Defendants met their burden to negate the discovery rule and obtain summary judgment against Fagan's fraud claim on limitations grounds. See id.; Hooks, 457 S.W.3d at 57.
Accordingly, we overrule Fagan's third issue.
Breach of Fiduciary Duty
In his fourth issue, Fagan argues the trial court erred in granting Defendants' motion for summary judgment on his breach of fiduciary duty claim against Aaron because she did not conclusively establish that his claim accrued more than four years before he sued.
A. Applicable Law
"An informal fiduciary duty may arise from 'a moral, social, domestic or purely personal relationship of trust and confidence,' and its existence is generally a question of fact for the jury." Ritchie v. Rupe, 443 S.W.3d 856, 892 n.63 (Tex. 2014) (quoting Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex. 2005)). But "[w]here the underlying facts are undisputed, determination of the existence, and breach, of fiduciary duties are questions of law, exclusively within the province of the court." Meyer, 167 S.W.3d at 330 (quoting Nat'l Med. Enters., Inc. v. Godbey, 924 S.W.2d 123, 147 (Tex. 1996)); cf. Moczygemba v. Moczygemba, 466 S.W.3d 212, 215 (Tex. App.-San Antonio 2015, pet. denied).
The duties a fiduciary owes may include a duty of loyalty and utmost good faith, a duty to refrain from self-dealing, and a duty of fair and honest dealing. See generally KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 90 (Tex. 2015); Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 512-13 (Tex. 1942).
A breach of fiduciary duty "[c]ause[] of action accrue[s] and statutes of limitations begin to run when facts come into existence that authorize a claimant to seek a judicial remedy.'" See Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 721 (Tex. 2016) (quoting Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 202 (Tex. 2011)); Moczygemba, 466 S.W.3d at 215.
The statute of limitations for a breach of fiduciary duty claim is four years. Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(5); Nghiem v. Sajib, 567 S.W.3d 718, 722 n.20 (Tex. 2019); Willis v. Donnelly, 199 S.W.3d 262, 278 n.33 (Tex. 2006).
B. Discussion
Because Fagan filed his petition on September 15, 2017, Aaron's burden against Fagan's breach of fiduciary duty claim was to conclusively prove that it accrued before September 16, 2013. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(5) (four-year limitation); Nghiem, 567 S.W.3d at 722 n.20; Willis, 199 S.W.3d at 278 n.33. To determine whether Aaron met her burden, we review the summary judgment evidence and the record, beginning with Fagan's breach of fiduciary duty claim.
1. Breach of Fiduciary Duty Claim in Petition
In his first amended original petition, Fagan's breach of fiduciary duty claim alleges he "had an informal or confidential fiduciary relationship with AARON rising from a moral and personal relationship of trust and confidence with AARON." Fagan added that this relationship of trust formed before he joined A&Q. Despite knowing Fagan's family and financial circumstances, Aaron induced Fagan to join A&Q by giving him assurances "regarding the income level he would receive, the professionalism and experience of the A&Q staff, and the impartiality of case assignments to associates." Then, after he was hired, and despite his "early recognition that things at [A&Q] were not as represented," Aaron again encouraged him to stay with A&Q.
2. Facts in Fagan's E-mail
In Fagan's September 2, 2013 e-mail to Aaron and Quirk, he recites facts that pertain to how an informal fiduciary relationship allegedly developed between him and Aaron, and how Aaron allegedly breached her duty of loyalty and utmost good faith, her duty to refrain from self-dealing, and her duty of fair and honest dealing. Cf. KCM Fin., 457 S.W.3d at 90; Kinzbach Tool, 160 S.W.2d at 512-13.
Before he began work at A&Q, Fagan told Aaron what he was making at his then-present job, he explained he was the sole income provider for his wife and three children, and he "impressed on [Aaron] how imperative it was that my A&Q income exceed what [he was then] making." Aaron assured Fagan he "would be able to exceed [his] current level of income," and an attorney could make "in the mid-80s by aggressively advancing cases."
Fagan asked Aaron how files were assigned to attorneys-"whether they get cherry-picked at all in the process." Aaron assured Fagan that the files were assigned randomly, and Fagan "would inherit the files of the outgoing attorney."
In contrast to Aaron's assurances, Fagan recounted that after four months, he had not been assigned all the outgoing attorney's files, and the files he received had not been distributed impartially: he was "assigned mostly lemon files, low-dollar files and/or non-negotiable files." He complained that his efforts to work files were hampered by "staff inattention to service of process delays [and] the departure of 3 legal assistants and 2 front-desk assistants." He added that his earnings were less than half of what he asserts Aaron promised him-despite her knowledge of his family and financial circumstances and his "imperative [need] that [his] A&Q income exceed" his previous income.
C. Aaron Met Summary Judgment Burden
Fagan's alleged facts that pertain to Aaron's alleged breach of fiduciary duty in his September 3, 2013 e-mail conclusively establish that those alleged facts had come into existence not later than September 3, 2013, Fagan knew of those facts at the time, and those facts are the basis for his breach of fiduciary duty claim. See Sw. Energy Prod., 491 S.W.3d at 721 ("[C]auses of action accrue and statutes of limitations begin to run when facts come into existence that authorize a claimant to seek a judicial remedy." (quoting Emerald Oil, 348 S.W.3d at 202)).
Although Fagan's termination on September 16, 2013, may have been within the four-year limitations period, by his own e-mail statements on September 3, 2013, Fagan had already suffered injuries attributable to Aaron's alleged breach of fiduciary duty, and his breach of fiduciary duty claim had already accrued. See Meyer, 167 S.W.3d at 330; Moczygemba, 466 S.W.3d at 215.
Thus, Aaron met her burden to negate the discovery rule and conclusively establish the breach of fiduciary duty claim accrued more than four years before Fagan filed his original petition. See Eagle Oil & Gas, 619 S.W.3d at 708 ("To obtain summary judgment on limitations grounds, the movant must conclusively establish the accrual date of the cause of action."); Pasko, 544 S.W.3d at 834 (discovery rule). Having met her burden, Aaron was entitled to summary judgment against Fagan's breach of fiduciary duty claim on limitations grounds. See Eagle Oil & Gas, 619 S.W.3d at 708; Pasko, 544 S.W.3d at 834.
Accordingly, we overrule Fagan's fourth issue.
Fact Questions on Affirmative Defenses
In the issues presented section of his brief, Fagan asserts he raised a fact issue in avoidance of Defendants' limitations defenses. Fagan does not separately brief the fact questions issue, but in each of his first four issues, he expressly or impliedly argues that fact questions negated Defendants' affirmative defense of statute of limitations.
Because we have already addressed Defendants' affirmative defenses in our analysis of each of Fagan's first four issues, which analysis necessarily included any fact questions that might preclude summary judgment, we need not separately address his fact questions issue here.
Conclusion
Having reviewed the summary judgment evidence under the appropriate standard of review and applicable laws, we conclude that Defendants negated the discovery rule and conclusively established their affirmative defenses of limitations against Fagan's fraud and breach of fiduciary duty claims. Accordingly, we affirm those portions of the trial court's order.
However, because the summary judgment evidence does not conclusively establish that all of Fagan's breach of contract or quantum meruit claims accrued more than four years before he filed his original petition, we reverse that portion of the trial court's order, and we remand the cause to the trial court for further proceedings consistent with this opinion.