Oliver v. Oliver , 843 S.W.2d 595 ( 1992 )

OPINION

BARAJAS, Justice.

This is a limited appeal arising from a divorce case in which the trial court disregarded the jury’s award of damages for fraud and entered a take-nothing judgment as to that particular cause of action. In a single point of error, Appellant, Rita Oliver, complains the trial court committed reversible error in disregarding the jury’s award of damages.¹ We affirm.

FACTUAL BACKGROUND

At the outset, this is an unusual divorce case which involves two separate marriages between the same two parties — Rita and Robert Oliver. The first marriage was ceremonially consummated in November 1978. This marriage ended in divorce in December 1979. The second marriage, an informal marriage, was entered into in August 1987. Like the first marriage, the second marriage also ended in divorce.

The suit that made the basis of this appeal involves the second marriage. Specifically, in November 1988, Appellee, Robert Oliver petitioned the trial court for divorce from his second marriage to Appellant. In response to the petition for divorce, Appellant counterclaimed for fraud, alleging that since 1979, Appellee had defrauded her as to their marital status. According to Appellant, Appellee committed fraud by representing to her that they were married when in fact they were not married.² In answer to the counterclaim, Appellee asserted a statute of limitations defense.

The trial court submitted the fraud counterclaim to the jury along with an issue on statute of limitations. Ultimately, the jury awarded Appellant $500,000 in fraud damages even though they specifically found that the fraud should have been discovered in 1979 — approximately nine years before the counterclaim was filed.³ Apparently, interpreting the jury’s findings to constitute a statute of limitations bar, the trial court disregarded the jury’s award of damages for fraud.

On appeal, Appellant argues that it was error for the trial court to disregard the award of damages for fraud because statute of limitations is not a bar to recovery. In short, Appellant advances three separate arguments pertaining to Appellee’s statute of limitations defense.

First, Appellant claims that actual notice was required in order to start the statute of limitations running and, at best, the jury found that Appellant had constructive notice. Second, Appellant alleges there were independent acts of fraud occurring throughout the parties’ relationship, some of which occurred less than four years before the counterclaim was filed. Finally, Appellant argues the fraud counterclaim falls within the exception of Section 16.069 of the Texas Civil Practice and Remedies Code.

While we find that some of Appellant’s arguments aré legally sound, a review of the record reveals that Appellant has waived any right to complain on appeal.

STATUTE OF LIMITATIONS FOR FRAUD

As a general rule, a cause of action for fraud is governed by a four-year statute of limitations period. Tex.Civ.Prac. & Rem.Code § 16.051 (Vernon 1986). The running of this limitations period typically begins when the fraud is discovered or, in the exercise of reasonable diligence, should have been discovered. Escontrias v. Apodaca, 629 S.W.2d 697, 698 (Tex.1982); Mooney v. Harlin, 622 S.W.2d 83, 84 (Tex.1981); Vance v. Bell, 797 S.W.2d 403 (Tex.App.—Austin 1990, no writ). Consequently, a party who has either actual or constructive notice of fraud must file suit within four years from the date of “discovery.” Texas law, however, has carved out several exceptions to this general rule. Of particular importance to the case at hand are the exceptions pertaining to fiduciary relationships and compulsory counterclaims.

In regard to fiduciary relationships, we have previously held that when such a relationship exists as in the case of a husband and wife, actual notice of the fraud must exist before the statute of limitations is set in motion. Pace v. McEwen, 574 S.W.2d 792, 797 (Tex.Civ.App.—El Paso 1978, writ ref’d n.r.e.). However, in order to fall within this exception, it was incumbent upon Appellant to obtain an affirmative finding as to the existence of a fiduciary relationship.

The second exception of particular importance concerns Section 16.069 of the Texas Civil Practice and Remedies Code that specifically states:

(a) If a counterclaim or cross claim arises out of the same transaction or occurrence that is the basis of an action, a party to the action may file the counterclaim or cross claim even though as a separate action it would be barred by limitation on the date the party’s answer is required.

(b) The counterclaim or cross claim must be filed not later than the 30th day after the date on which the party’s answer is required.

The key to this exception is that the counterclaim must “arise out of the same transaction or occurrence ...” as the main cause of action. Thus, Appellant’s fraud claim must have arisen out of Appellee’s 1988 petition for divorce in order for Section 16.069 to apply.

Before we can determine whether either of these two exceptions apply to the case at hand, it is necessary to consider the procedural aspects of the charge that was submitted to the jury.

TRIAL COURT’S CHARGE TO THE JURY

Only one question was submitted to the jury regarding the statute of limitations for the fraud claim. Specifically, in question number six, the jury was asked the following:

When, using ordinary diligence, would Rita K. Oliver have discovered that a Decree of Divorce was entered. Answer by writing the date.

The jury found the date to be December 17, 1979 — the date the New Mexico Divorce Decree became final. The legal implication of such a finding is that Appellant had constructive notice of the fraud approximately nine years before suit was ever filed.

Appellant argues that the jury’s answer to question number six is not controlling. As noted above, Appellant claims that actual notice of the fraud is required before the limitation statute is set into motion since a fiduciary relationship existed between Appellant and Appellee. See Pace, 574 S.W.2d at 797.

Notwithstanding the legal merit inherent in Appellant’s argument, any error committed by the trial court was not properly preserved for appellate review. Specifically, Appellant failed to preserve error for two reasons. First, Appellant never objected to the submission of question number six. Absent any such objection, Appellant has waived any right to complain about the form of question number six as it relates to the statute of limitations. Ormsby v. Travelers Indemnity Company of Rhode Island, 601 S.W.2d 779 (Tex.Civ.App.—Waco 1980, no writ); Tex.R.Civ.P. 274. Second, Appellant also failed to request a question or instruction on fiduciary duty and/or actual notice. Tex.R.Civ.P. 274 and 279.

Appellant’s remaining contentions regarding Section 16.069 and independent acts of fraud were also waived. In addition to failing to object, Appellant failed to request questions or instructions on either theory. As a result, it is unnecessary for us to discuss the merits of either contention.

Based on the above facts, it was proper for the trial court to disregard the jury’s award of damages for fraud. In fact, due to the jury’s answer to question number six, the jury’s finding of fraud was rendered immaterial. When a jury finding is rendered legally immaterial, a trial court may, on its own motion, disregard such finding and render judgment based upon the remaining findings. Tex.R.Civ.P. 301; C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966); Bayliss v. Cer-nock, 773 S.W.2d 384, 386 (Tex.App.—Houston [14th Dist.] 1989, writ denied). Accordingly, we overrule Appellant’s sole point of error.

Having considered all arguments advanced by Appellant, we overrule Appellant’s sole point of error, and affirm the judgment of the trial court which formed the basis for Appellant’s limited appeal.

1 . Appellant was also awarded the sum of $125,-000 as her interest in the community property accumulated during the parties’ informal marriage in Texas. This division of community property is not questioned on appeal. In fact, Appellant has limited her appeal to the court’s ruling on the issue of fraud as being contrary to the jury’s finding.

2 . Although the facts tire not central to this appeal, a brief synopsis is helpful. Shortly after the parties entered into their first marriage, Appellant and Appellee established their residence in New Mexico, a state that does not recognize informal marriage. While in New Mexico, Appellee informed Appellant of his desire to obtain a divorce. Based on this desire, Appellee had divorce papers prepared by an attorney. At Appellee’s insistence, Appellant executed a waiver of citation and property settlement agreement without ever reading the papers. After the papers were signed, Appellee told Appellant that they were still married. The parties continued to live together as husband and wife. Meanwhile, a final decree of divorce was entered in December 1979. Unaware of the final decree of divorce, Appellant continued to reside in New Mexico with Appellee for approximately eight years. According to Appellant, the subject of divorce was never broached during this eight year time period.

In August 1987, the parties moved to Texas. The record indicates that the parties never formally remarried after the entry of their 1979 New Mexico divorce. They did, however, enter into an informal marriage during their residence in Texas. Tex.Fam.Code Ann. § 1.91 (Vernon 1975 and Supp.1992). In order to terminate the informed marriage entered into in Texas, Appellee filed for divorce in November 1988.

3 .Appellant’s counterclaim alleging fraud was filed on December 1, 1988, approximately nine years after entry of her New Mexico divorce decree. Clearly, such filing was outside the four-year statute of limitations. Tex.Civ.Prac. & Rem.Code § 16.051 (Vernon 1986).