Jerry Christerson and Myrtle Christerson v. Gordon W. Speer, Lenora Speer, Kevin Speer and Ed Pickett ( 2017 )

Opinion issued April 27, 2017
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-16-00469-CV
———————————
JERRY D. CHRISTERSON AND MYRTLE CHRISTERSON, Appellants
V.
GORDON W. SPEER, LENORA SPEER, KEVIN SPEER,
AND ED PICKETT, Appellees
On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Cause No. CV29050
MEMORANDUM OPINION
In this appeal from a summary judgment, we determine whether venue was
proper and whether the statute of limitations bars the buyers’ claims for fraud and
deceptive trade practices brought against the sellers, who financed the buyers’
purchase of their home. The buyers, Jerry and Myrtle Christerson, bought the home
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from the sellers, Gordon and Lenora Speer, in 2000. The Speers loaned the
Christersons $250,000 to finance the Christersons’ purchase. In 2014, the Speers
notified the Christersons that they owed outstanding interest on the note and began
foreclosure proceedings. Before the foreclosure took place, the Christersons sold the
home, and they used the proceeds to pay off the outstanding debt.
Later that year, the Christersons sued the Speers in Harris County District
Court for fraud, breach of contract, and violations of the Texas Deceptive Trade
Practices Act, the federal Truth in Lending Act, and the federal Racketeer Influenced
and Corrupt Organizations Act. The Christersons also named Kevin Speer, who is
the Speers’ son and who acted as the real estate broker in the sale, and Ed Pickett,
the Christerson’s attorney, as defendants.
Because the property is located in Chambers County, and the sale took place
in Chambers County, the seller parties moved to change venue from Harris County
to Chambers County. The Harris County District Court granted the motion and
transferred the case to Chambers County. After proceeding in Chambers County,
the seller parties moved for summary judgment, which the trial court granted as to
all of the Christersons’ claims.
On appeal, the Christersons challenge the transfer of venue and contend that
fact issues preclude summary judgment. Because we conclude that the trial court
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properly transferred venue and that the Christersons’ claims against the seller parties
are barred by the applicable statutes of limitations, we affirm.
BACKGROUND
Kevin Speer, a licensed real estate broker and agent, agreed to help his parents
sell their home. In early 2000, the Christersons saw a “For Sale” sign in front of the
Speers’ home and called Kevin, who was the listed real estate broker.
Jerry Christerson met with Kevin and Gordon Speer regarding the property.
Jerry told the Speers that he could afford to buy the property if he could pay $1,450
per month for 30 years. The Speers responded that they would try to arrange
financing according to the Christersons’ wishes.
The parties ultimately agreed on a sales price of $275,000. The Speers loaned
$250,000—all but $25,000 of the sales price—to the Christersons as seller financing.
Kevin drafted an earnest money contract, using the form required by the Texas Real
Estate Commission (TREC). In a seller financing addendum, the earnest money
contract included the terms and conditions for the loan.
Section 4D of the earnest money contract describes the financing agreement
as “[a] promissory note from Buyer to Seller of $250,000.00, bearing 8.000%
interest per annum, secured by vendor’s and deed of trust liens, in accordance with
the terms and conditions set forth in the attached TREC seller financing addendum.”
The seller financing addendum declares that the “Note shall be payable, [i]n monthly
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installments of $1,450.00 including interest beginning 30 days after the date of the
Note and continuing at monthly intervals thereafter for 30 years when the entire
balance of the Note shall be due and payable.”
A $250,000 note at 8% interest per annum is not discharged with monthly
payments of $1,450 over 30 years. Under the “special provisions” section, the
earnest money contract states: “NOTICE: The Seller Financed Note will negatively
amortize based on a monthly payment of $1,450.”
After the parties signed the earnest money contract, the Speers asked their
lawyer, Ed Pickett, to draft the closing documents, including a deed of trust and a
credit sale disclosure. The deed of trust, executed on May 13, 2000, provided for
monthly payments of $1,450 and interim catch-up payments every 10 years:
A. 359 equal consecutive payments of $1,450 for 359 months;
B. A payment due on July 1, 2010 for all accrued, unpaid interest to
date “together with sufficient payment of principal to reduce the unpaid
principal balance on such date to that which would have existed had
this note been amortized with timely full amortization monthly
installments of $1834.41 per month;”
C. A payment due on July 1, 2020 for all accrued, unpaid interest to
date, “together with sufficient payment of principal to reduce the unpaid
principal balance on such date to that which would have existed had
this note been amortized with timely full amortization monthly
installments of $1834.41 per month.”
D. All unpaid, accrued interest and unpaid principal shall be due and
payable on the final maturity date of April 1, 2030.
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The accompanying credit sale disclosure notified the Christersons of the 8% annual
percentage rate and the total finance charge of $410,387.60. It stated that the
payment schedule was $1,450 for 359 months, due on the first day of each month.
The Christersons and the Speers closed the real estate transaction on May 16,
2000.
Following the closing, the Christersons began making timely monthly
payments of $1,450. In August of 2013, the Speers notified the Christersons that a
catch-up payment of approximately $46,000 in unpaid principal and interest was due
on the loan. The Christersons did not pay that amount, but continued to make the
regular $1,450 monthly payments.
In January of 2014, the Speers began refusing the Christersons’ monthly
payments and initiated foreclosure proceedings. The Christersons sold the home
before foreclosure could occur and with the proceeds from the sale, they paid the
amount outstanding on the Speers’ loan.
The Christersons seek recovery for the Speers’ alleged fraud and violations of
consumer protection acts. The gravamen of the Christersens’ complaint is that the
Speers represented that $1,450 would cover the accrued interest and principal
payments on the loan when in fact it did not, thus triggering the catch-up payments.
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DISCUSSION
The Christersons challenge the Harris County district court’s transfer of venue
to Chambers County, contending that venue was proper in Harris County. The
Christersons also challenge the Chambers County district court’s summary judgment
ruling, contending that their claims are not barred by the applicable statutes of
limitations because they did not accrue until the Speers demanded a catch-up
payment and that material issues of fact exist for each of their causes of action.
I. Venue
We first address the Christersons’ challenge to venue in Chambers County,
because an improper venue decision requires reversal of the judgment and remand
for a new trial. TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(b) (West 2017); see
Airvantage L.L.C. v. TBAN Props., #1, L.T.D., 269 S.W.3d 254, 257 (Tex. App.—
Dallas 2008, no pet.).
A. Standard of review and applicable law
An appellate court reviews a trial court’s denial of a motion to transfer venue
de novo. Killeen v. Lighthouse Elec. Contractors, L.P., 248 S.W.3d 343, 347 (Tex.
App.—San Antonio 2007, pet. denied) (citing Wilson v. Tex. Parks & Wildlife Dep’t,
886 S.W.2d 259, 260–62 (Tex. 1994)). In deciding whether the trial court properly
determined venue, we consider the entire record. TEX. CIV. PRAC. & REM. CODE
§ 15.064(b); see also Wilson, 886 S.W.2d at 261–62.
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Venue may be proper in more than one county under the venue rules. See,
e.g., GeoChem Tech Corp. v. Verseckes, 962 S.W.2d 541, 544 (Tex. 1998).
Generally, courts will not disturb a plaintiff’s choice of venue as long as the suit is
initially filed in a county of proper venue. Hiles v. Arnie & Co., P.C., 402 S.W.3d
820, 825 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); In re Henry, 274
S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
A trial court must consider as true all venue facts set forth in the plaintiff’s
pleading, unless an adverse party specifically denies those facts. See TEX. R. CIV. P.
87(3)(a). Once the adverse party specifically denies venue facts, the plaintiff must
then respond with prima facie proof for each challenged venue fact. Id. “Prima facie
proof is made when the venue facts are properly pleaded and an affidavit, and any
duly proved attachments to the affidavit, are filed fully and specifically setting forth
the facts supporting such pleading.” Id. This prima facie proof is not subject to
rebuttal, cross-examination, impeachment, or disproof. Henry, 274 S.W.3d at 190;
Chiriboga v. State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 678 (Tex. App.—
Austin 2003, no pet.). On appeal, the trial court’s determination that venue is proper
in a particular county will be upheld if there is any probative evidence supporting
venue in the county of suit. Chiriboga, 96 S.W.3d at 678 (citing Bonham State Bank
v. Beadle, 907 S.W.2d 465, 471 (Tex. 1995)).
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Section 15.002(a) of the Civil Practice and Remedies Code provides that all
lawsuits shall be brought:
(1) in the county in which all or a substantial part of the events or
omissions giving rise to the claim occurred;
(2) in the county of defendant’s residence at the time the cause of action
accrued if defendant is a natural person;
(3) in the county of the defendant’s principal office in this state, if the
defendant is not a natural person; or
(4) if Subdivisions (1), (2), and (3) do not apply, in the county in which
the plaintiff resided at the time of the accrual of the cause of action.
CIV. PRAC. & REM. CODE § 15.002(a). The Christersons rely on the first venue
provision, contending that they adduced prima facie evidence that Harris County is
a county in which all or a substantial part of the events or omissions giving rise to
the claim occurred.
B. Analysis
The Christersons allege that “events relating to the foreclosure and the
subsequent injuries,” including negotiations over telephone and email, the sale of
the home, and the final payment of the outstanding loan, originated in Harris County.
To support these contentions, Jerry Christerson averred in his affidavit that he
and his wife had moved to Harris County after the Speers demanded payment on the
note. They received the foreclosure notice in Harris County, and they sold the home
to a third party in a closing that took place at a title company in Harris County.
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The Christersons’ receipt of notices regarding foreclosure and sale of the
home to a third party in Harris County, however, do not constitute events or
omissions giving rise to their claims against the sellers. The undisputed venue
facts are that the financing transaction that forms the basis of the Christersons’
complaint took place in Chambers County, in connection with a purchase of real
property located in Chambers County. The closing on the property, transferring
its ownership from the Speers to the Christersons, took place in Chambers County.
The negotiations concerning the financing and sale also took place in Chambers
County. Thus, the alleged conduct underlying the Christersons’ fraud and
misrepresentation claims occurred in Chambers County. None of the sellers is
alleged to have committed or performed any act or omission in Harris County
relating to the Christersons’ claims. We hold that the trial court properly granted
the sellers’ motion to transfer venue to Chambers County.
II. Summary Judgment
The Christersons contest all of the summary-judgment grounds granted on
their state law claims. 1 We affirm a summary judgment if any theory advanced in
the sellers’ summary-judgment motion is meritorious. See Joe v. Two Thirty Nine
Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). Among other grounds, the sellers
1
The Christersons do not brief any claim of error concerning the trial court’s
summary judgment on their federal claims for violations of the Truth in Lending
Act, Regulation Z, or under RICO. See TEX. R. APP. P. 38.1(i).
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moved for summary judgment based on the applicable statutes of limitations. We
address this ground because it is dispositive of the appeal. See id.; Crockett Cty v.
Klassen Energy, Inc., 463 S.W.3d 908, 910 n.1 (Tex. App.—El Paso 2015, no pet.)
(citing TEX. R. APP. P. 47.1).
A. Standard of review and applicable law
A defendant is entitled to summary judgment on an affirmative defense if it
conclusively proves all the elements of the affirmative defense. Rhône–Poulenc,
Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see also City of Houston v. Clear
Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). A defendant that seeks
summary judgment on the basis of limitations must conclusively prove when the
cause of action accrued and, if the plaintiff has pleaded the discovery rule or another
defensive theory, conclusively negate its application. Pustejovsky v. Rapid-Am.
Corp., 35 S.W.3d 643, 646 (Tex. 2000); KPMG Peat Marwick v. Harrison Cty.
Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). If, as here, the summary
judgment does not specify the grounds on which it was granted, the appealing party
must demonstrate on appeal that none of the proposed grounds is sufficient to
support the judgment. Rogers v. Ricane Enters., 772 S.W.2d 76, 79 (Tex. 1989).
All of the Christersons’ claims are subject to either a two- or four-year statute
of limitations. See CIV. PRAC. & REM. CODE § 16.004(a)(4) (West 2002) (four-year
statute of limitations for fraud); Id. § 16.004(a)(5) (four-year statute of limitations
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for breach of fiduciary duty); TEX. BUS. & COM. CODE ANN. § 17.565 (West 2011)
(two-year statute of limitations under DTPA); Barker v. Eckman, 213 S.W.3d 306,
309 (Tex. 2006) (four-year residual statute of limitations set forth in section 16.051
of the Civil Practice and Remedies Code applies to breach-of-contract claims).
B. Analysis
In their summary-judgment motion, the sellers contended that the
Christersons’ claims accrued when the parties closed on the sale and financing,
approximately 14 years before their suit was filed. See Via Net v. TIG Ins. Co., 211
S.W.3d 310, 314 (Tex. 2006) (explaining that breach of contract claim accrues when
contract is breached). The Christersons responded by pleading the discovery rule,
asserting that their claims did not accrue until August 2013, when they received the
Speers’ letter demanding the first catch-up payment.
The Christersons arrive at the August 2013 accrual date under three defensive
theories. First, they contend that the Speers fraudulently concealed the fact that the
financing agreement obligated the Christersons to make catch-up payments in 10-
year increments over the life of the loan because the catch-up payments were not
included in the earnest money contract. Second, the Christersons claim that the
discovery rule tolled the statute of limitations until they discovered the injury
resulting from the Speers’ wrongful acts and they did not discover their injury until
the demand for catch-up payments. Third, they claim that, under a continuous-tort
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or continuous-breach theory, the accrual date revived each time the Speers accepted
the Christersons’ monthly payments of $1,450.
1. The loan documents, signed in May 2000, disclose the fact that
$1,450 in monthly payments does not fully satisfy the loan.
For limitations purposes, “a cause of action accrues when a wrongful act
causes some legal injury.” S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). A “legal
injury” occurs when facts come into existence that authorize a party to seek a judicial
remedy. Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003)
(citing Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507,
514 (Tex. 1998)). Accrual occurs “even if the fact of injury is not discovered until
later, and even if all resulting damages have not yet occurred.” S.V., 933 S.W.2d at
4. The determination of the date on which a cause of action accrued is typically a
question of law. Villarreal v. Wells Fargo Brokerage Servs., LLC, 315 S.W.3d 109,
117 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (citing Provident Life, 128
S.W.3d at 221).
The closing documents, and in particular the deed of trust, placed the
Christersons on notice that the terms of the loan required more than 359 monthly
payments of $1,450 to fully amortize the outstanding loan. The documents that the
Christersons signed at closing include a warranty deed with vendor’s lien, a deed of
trust, and a credit sale disclosure. The warranty deed recites that the consideration
includes
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[T]he . . . sum of [250,000.00], secured to be paid as evidenced by one
certain Vendor’s Lien Promissory Note . . . from Grantees herein to the
order of Grantors herein in the principal amount of [$250,000.00],
bearing interest from date at the rate of [8%] per annum on the principal
balance from time to time remaining unpaid, said interest being payable
monthly as it accrues . . . .
The terms set forth in the deed of trust obligate the Christersons to pay the
loan “[i]n [359] equal consecutive monthly installments of [$1,450.00] each,
including accrued interest.” It further requires the Christersons to make three
additional catch-up payments—in 2010 and 2020, respectively—of
all accrued, unpaid interest [from the prior 10-year period], together
with sufficient payment of principal to reduce the unpaid principal
balance on such date to that which would have existed had this note
been amortized with timely full amortization monthly installments of
$1,834.41 per month.
On the final maturity date in 2030, the Christersons were to pay “[a]ll unpaid,
accrued interest and unpaid principal.”
The credit sale disclosure, which the Christersons also received at closing, sets
forth the loan’s terms as follows:
ANNUAL FINANCE AMOUNT TOTAL TOTAL SALE
PERCENTAGE CHARGE FINANCED AMOUNT OF PRICE
RATE PAYMENTS
The dollar The amount of The amount you The total cost of
The cost of your amount the credit provided will have paid your purchase on
credit at a yearly credit will cost to you or on after you have credit, including
rate. you. your behalf. made all your down
payments as payment of
scheduled. $25,000.00.
8.0% $410,387.60 $250,000.00 $660,387.60 $275,000.00
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Below these terms, the disclosure states that “[y]our payment schedule will be” 359
payments of $1,450.00, due on the first day of each month. The schedule cautions
that, “The note payment schedule results in negative amortization which must be
corrected every ten (10) years of the note term.”
These loan document provisions, taken together, notified the Christersons that
the 359 payments of $1,450 per month would not fully satisfy their loan obligation
at the end of 30 years. Texas adheres to the longstanding rule that, absent proof of
mental incapacity, a party who signs a contract is presumed to have read it and
understood it. Cosgrove v. Cade, 468 S.W.3d 32, 34–35 (Tex. 2015) (declaring that
party who signs deed is presumed, as matter of law, to have immediate knowledge
of omissions and mistakes in deed). The Christersons therefore are charged, as a
matter of law, with knowing and understanding the contents of the deed and other
closing documents upon their signing. See id. at 37. Because the law presumes that
the Christersons read and understood the closing documents, as a matter of law, they
knew or should have known when they executed those documents of any
discrepancy between the terms of the loan as they understood them and the terms set
forth in the closing documents. 2
2
In their reply brief, the Christersons, citing T.O. Stanley Boot Co. v. Bank of El Paso,
847 S.W.2d 218 (Tex. 1992), claim that the deed of trust lacks the specificity
required to form a binding agreement because it mentions neither the amount
financed nor the interest rate for the loan. A written contract, however, may be
comprised of multiple documents. See Fort Worth Indep. Sch. Dist. v. City of Fort
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The loan document disclosure negates application of the discovery rule in this
case as a basis for deferring accrual of the limitations period beyond the closing date.
Under the discovery rule, accrual is deferred when “the nature of the injury incurred
is inherently undiscoverable and the evidence of injury is objectively verifiable.”
S.V., 933 S.W.2d at 6 (quoting Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d
453, 456 (Tex. 1996)); see also BUS. & COM. CODE § 17.565 (statutorily
incorporating discovery rule by allowing consumer to bring DTPA claim “within
two years after the consumer discovered or in the exercise of reasonable diligence
should have discovered the occurrence of the false, misleading, or deceptive act or
practice”).
For claims for breach of contract, “diligent contracting parties should
generally discover any breach during the relatively long four-year limitations period
provided for such claims.’” Clear Lake Ctr., L.P. v. Garden Ridge, L.P., 416 S.W.3d
527, 543 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (quoting Via Net, 211
S.W.3d at 315). Similarly, when a party has had a reasonable opportunity to review
Worth, 22 S.W.3d 831, 840 (Tex. 2000)). The other documents executed at closing,
including the warranty deed with vendor’s lien and the credit sale disclosure,
identify the amount financed and the interest rate that applies to the loan, and thus
supply the terms missing from the deed of trust. We construe these documents
together and conclude that they contain sufficient specificity in the material terms
necessary to notify the Christersons of their repayment obligations. See id.(explaining that court may construe multiple documents as if they were part of
single, unified agreement).
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a contract’s terms before signing the contract, the party may not avoid those terms
by claiming fraudulent inducement. See Nat’l Prop. Holdings, L.P. v. Westergren,
453 S.W.3d 419, 424 (Tex. 2015) (rejecting plaintiff’s claim that defendants
fraudulently induced him to sign written release where plaintiff explained that he did
not read release he was signing because he was “in a hurry” and did not have his
reading glasses with him); In re Int’l Profit Assocs., Inc., 286 S.W.3d 921, 923 (Tex.
2009) (where parties read and had opportunity to discuss contracts before signing,
defendant’s failure to separately disclose forum-selection clauses did not constitute
evidence that defendant fraudulently induced plaintiff).
2. Under the Texas Supreme Court’s decision in Cosgrove v. Cade,
the Speers’ demand for payment did not revive the accrual date.
The Christersons also claim that the Speers’ demands in 2013 and 2014 that
the Christersons increase their payments under threat of foreclosure constitute
separate breaches of the loan agreement and revive their claims. The Texas Supreme
Court, however, rejected a similar assertion in Cosgrove.
In Cosgrove, the parties executed a deed that failed to reflect their agreement
that the sellers would retain all mineral rights to the property. See 468 S.W.3d at 35.
When the sellers discovered the omission four years later, they asked the buyer to
execute a correction deed, but the buyer refused. Id. at 35. The sellers sued, seeking
reformation of the deed and damages for breach of contract, civil theft, and tortious
interference with contract, among other claims. Id. Because more than four years
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had passed since execution of the original deed, the buyer moved for summary
judgment on limitations. Id. The sellers responded that their causes of action did
not accrue until the buyer refused to execute the correction deed. Id. at 39.
The Texas Supreme Court rejected the contention that the later refusal to
reform the deed delayed the accrual date for limitation purposes. Id. To hold
otherwise, the Court observed, “would circumvent the statute of limitations by
allowing an open-ended breach of contract claim” that offends public policies meant
to preserve the accuracy, reliability, and stability of real property records as well as
the duty of diligence owed by the parties in such transfers. Id. Like the plaintiffs in
Cosgrove, the Christersons seek to recast later conduct performed under the terms
of the financing agreement as an independent breach of the original sale and
financing agreement. See id.
We apply the holding in Cosgrove to the facts presented in this case and reject
the contention that the Christersons’ claims did not accrue until 2010. The
Christersons’ claims for breach of contract accrued, and thus the limitations period
commenced, when the Speers and the Christersons signed the closing documents in
2000. The closing documents, including the deed of trust, reflect repayment terms
that differ from the terms of the agreement the Christersons claimed to have made.
See id. at 39 (explaining that claim for breach of contract accrues when contract is
breached).
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3. The acceptance of payments under the loan does not constitute
a continuing tort.
The Christersons’ claim that the accrual of their tort claims was delayed under
a continuing tort theory also is unavailing.3 A continuing tort is an ongoing wrong,
causing a continuing injury that does not accrue until the tortious act ceases. Rogers
v. Veigel Inter Vivos Tr. No. 2, 162 S.W.3d 281, 290 (Tex. App.—Amarillo 2005,
pet. denied). Repeated injury proximately caused by repetitive wrongful or tortious
acts may constitute a continuing tort, but a continuing injury arising from one
wrongful act does not. Compare Upjohn Co. v. Freeman, 885 S.W.2d 538, 542
(Tex. App.—Dallas 1994, writ denied) (applying continuing-tort rule to repeated use
of mistakenly prescribed medication; each use created separate injury and cause of
action for damages was not complete and did not accrue until wrongful conduct
ended) with Rogers, 162 S.W.3d at 290 (holding that bank’s periodic collection of
fees as purported trustee of nonexistent trust did not constitute continuing tort; all
injury arose from bank’s single act of usurping control over property). Unlike
conduct constituting a continuing tort, the Christersons’ monthly payments, as well
as the Speers’ later demand for the catch-up payment, all stem from conduct that
occurred before and at the closing and pursuant to the written documents that both
3
The Texas Supreme Court has “neither endorsed nor addressed” the continuing tort
doctrine. See Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 816 n.8 (Tex. 2005).
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parties executed at that time. We hold that the trial court correctly granted summary
judgment based on the statute of limitations bar applicable to their claims.
4. The trial court acted within its discretion in rejecting a claim of
spoliation as a basis for denying summary judgment on
limitations.
Finally, the Christersons contend that the Speers spoliated evidence because
they could not produce the original promissory note that the Christersons contend
reflected the parties’ agreement to accept $1,450 in monthly payments for 30 years
to satisfy the loan. The Christersons complain of the trial court’s implicit refusal to
deny summary judgment as a spoliation sanction. Because the trial court granted the
Speers’ motion for summary judgment, we presume that the court considered and
rejected the Speer’s request for a spoliation presumption. See Clark v. Randalls
Food, 317 S.W.3d 351, 356 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). We
review a trial court’s ruling on a request for a spoliation remedy for an abuse of
discretion. See Brookshire Bros., Ltd. v. Aldridge, 438 S.W.3d 9, 27 (Tex. 2014).
Parties have a duty to reasonably preserve discoverable evidence. Id. at 16–
17 (citing Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718, 721 (Tex. 2003)). The
party alleging spoliation bears the burden of establishing that the nonproducing party
had a duty to preserve the evidence. Id. at 20 (citing Wal-Mart Stores, 106 S.W.3d
at 722). The Christersons point to the Speers’ failure to produce the promissory note
in response to discovery requests, coupled with the Speers’ admission that they never
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provided the Christersons with a copy of the promissory note. The Christersons
contend that these admissions show that the Speers caused the destruction of material
evidence, precluding summary judgment on limitations. The evidence about the
note in the record is that the Speers, after a thorough search, were unable to find it.
This evidence does not demonstrate that the Speers destroyed the note or owed a
duty to preserve it beyond the passing of the limitations period. Because the
Christersons did not meet their burden to adduce evidence demonstrating that
spoliation occurred, the trial court did not err in rejecting their spoliation request.
CONCLUSION
We hold that transfer of venue from Harris County to Chambers County was
proper and that the trial court did not err in granting summary judgment based on
the applicable statutes of limitations. We therefore affirm the judgment of the trial
court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Huddle.
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