### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03

- 23

- 00129

- CV

Appellant, Jose Margarito Palacios// Cross-Appellants, Rosa Barr, Ismael Samuel Palacios, Vicente Zenon Palacios, and Maria Andrea Morale s

v. Appellees, Bonifacio Palacios, as Tempo rary Dependent Administrator of the Estate of Esequiel Palacios Esparza, Rosa Barr, Ismael Samuel Palacios, Vicente Zenon Palacios, and Maria Andrea Morales// Cross

- Appellee, Jose Margarito Palaci os

FROM THE 277TH DISTRICT COURT OF W ILLIAMSON COUNTY NO. 15-0415-C277, THE HONORABLE BETSY F. LAMBETH , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellant Jose Margarito Palacios and Cross-Appellants Rosa Barr,
Ismael Samuel Palacios, Vic ente Zenon Palacios, and Maria Andrea Morales

— sibli ngs of
Jose Margarito Palacios and interven ors in the underl ying proceeding (Intervenors)— appeal from the trial court ’ s final judgment following a jury verdict

. The jury found that
Jose Margarito Pala cios “ was unjustly enriched as a result of diverting to himself a ssets that would otherwise have passed to [Intervenors]” following the de ath of their father , Esequiel Palacios Esparza

. The final judgment awarded each Inter venor $100,000 , f or a t otal
award of $400,000, against Jose Margarito P a lacios and ordered tha t h e take n othing on his
counterclaim fo r declaratory judgment.2 Among his asserted gr ounds for reversing the t r ial court ’ s judgment , Jose Margarito Pala cios contends that Intervenors ’ c laim for u njust enrichm ent was barred by
limi tations as a matter of l aw , a nd he challenges the tr ial court ’ s take

- nothing judgment on his

coun terclaim and the jury ’ s finding o f $0.00 as to his attorney ’ s fees

. On cross

- appeal, Intervenors argue that this Court does not have ju ri sdiction because the final judgment is not

ac tu all y a final judgment and complain about a Rule 11 settlement agreement between
Bonifacio Palacios, as Temporary Dependent Administrator of the ir father ’ s Estate (the Est ate) , and Jo se Margarito Pala cio s concerning funds that Comp ass Bank (the Bank) interp lea ded in to the registry of the William son County Court of Law Number 4 (the Probate Court) in the
proce eding concerning the E state

. 1 For the following reasons, we affirm the t rial court ’ s final judgment to the extent
that it o r de r ed that Jo se Margarito Pa la c ios re cover nothing on his counterclaim and did not
award him att orney ’ s fees , but because we conclude that Intervenors ’ claim of unjust enrichment is barred by limitat ions as a matter of law, we reverse the final judgmen t as to this claim and render ju dgm ent th at Inter venors take not hing on this c laim

.

1 Pendin g be fore this Court is Jose M argarito P alacios ’ s motion to d ismiss Intervenors ’ cross - appeal on th e gr ound that the ir notice of appeal was not timely file d and to dismiss the cross - appeal for want of prosecu ti on be ca use their brief was not timely f i led

. H e also a sks fo r damages fo r a frivolous app eal under Te xas Rule of Appellate P rocedure 45. We den y this motion. Because Inter venors ’ n otice of appeal wa s filed within the 15

- day extension period , we imply a motion for ext ension of tim e to file their noti ce of ap peal a nd gra nt the mo tion. See Tex. R. App. P. 26.3 ( providing f ifteen

- day extension peri o d for appell ate court to author ize extension of time to file notice of appe al ) ; Verbur gt v. Dorner , 959 S.W. 2d 615 , 617 (Tex. 1997) (expl ain ing that motion f or exten sion o f time is impli ed when no tice of appeal is filed within 15

- day extension period).3 BACKGROUND 2 Esequiel Palacios Esparz a ( Dec e dent ) died o n October 26, 201 3 , a t the age of 92

. He and his wi fe , who die d in 2001, had 17 children , and the part ies were among the 14 children
who wer e living when their father died. Although Decede nt had lived in Texas for part of his life, he lived in Mexico after
his wife died

. His son J o se Margarito Pala cios also lived in Mexico and assisted Decedent , who
d id not read or speak English, with banking matters

. In 200 8 or 2009, Dec edent set up separate certificate

- of

- de posit accounts a t the B ank in the amount of $200 ,000 that had p ayable

- on - death (P

. O

. D

. ) designati on s for each I ntervenor

. 3 De ced ent was the sol e account holder o f the P.O.D.

accounts , a nd he ga v e copies of the ori ginal paperwork for the accounts to Interv enors. In 2009 , Dece dent and Jose Margarito Pala cios also had a joint account at the Ba nk with the right of

s urvi vorship

.

2 Th is factual recitation is taken from the evidence adm itted at trial , but we also refer to plea dings that w er e filed in a suit brought b y Intervenors again s t the B a n k , wh ich was removed to federal court , and the proceeding in the Probate Court concerning th e Es tate . To the extent that the referenced pleadi ngs i n the other matters are not in the appellate recor d in this appeal , we ta ke jud i cial notice of the record in In r e Barr , No. 03

- 2 3

- 00194

- CV, 2023 Tex. App . LEXIS 3234 (Tex. App.

— Austin May 12, 2023, orig. proceeding) (mem. op.)

. See Humphries v. Hu mphries , 349 S.W.3d 817, 820, n.1 (Tex. App.

— Tyler 2011, pe t. denied) ( tak ing judicial notice o f appellate court ’ s own r ecords in appeal from same proceeding involving same parties) ; Tschirhart v. T sc hirh art , 876 S.W.2d 507, 508 (Tex. App.

— Austin 1994, no writ ) ( “ [A ] court may take judicial notice of its own rec or ds

. ” ) ; see also Tex. R. Evi d. 201 (addressing j udicia l n otice )

. I n that or i g i n a l pro ceedin g, we den ied Interv enors ’ petiti on for wri t of man damus from the P ro bate C ourt ’ s order disburs ing funds that were in terpleaded by the Bank i n to the re gistry of the P robate Court , a nd the s worn record i ncluded ple adings fr om : ( i) the Inter ven ors ’ s uit against the Bank that was removed to federal court , inc lu ding Interv enors ’ original petition against the Bank and the B an k ’ s notice of removal to federal cou rt, and (ii ) the probate proceeding , inc luding the Bank ’ s pl ea in in ter ven tion in that pr oceedi ng , its petition for interpleader, the Probate C ourt ’ s orde r granting the interp leader, and its order app r oving the dis bursem ent of the funds

.
3 The record reflects that D ec e dent set up the se accounts with Laredo Bank , w hich la ter bec ame Co mpass Ba nk.4 In th e early part of 2014 , Intervenors contacted the Bank abou t receiv i ng the
funds from the P.O.D. accounts because Decedent had d ied , but Inter venors eac h receiv ed approximately $100 ,000 , not the $200,000 that they expecte d

. In Oct ober 2014, Interv enors sued
the Bank over the missing monies that they believed tha t t hey we r e supposed to inherit from
Decedent

. 4 The Ba nk removed the ac tion t o f ederal court and joined Jose Margarito Palacios as
a third

- party defendant. On Januar y 21, 2016, Intervenors also file d a petition in intervention in
th e underlying proceeding t hat is the subject o f t his appeal

. In the underlying proceeding , Bon ifacio Palacios, in his capacity as the Estate ’ s T emporary Dependent Administrator , had sued Jose Margarito Palacios to pursu e c laims on the Estate ’ s behalf

. In May 2016 , the parties st ipulat ed to the voluntar y dismiss al of the federal a ction without prejudice

. The Bank had interp lead ed over $500 ,000 from accounts that it had frozen
be longing to the E state o r Jo se Margarito Pa lacios into the re gistry of the Pr obate Court

. Intervenors attempt ed to in tervene in the Probate Court p roc e e ding concerning the Es tate , but they w ere dismisse d from th at suit

. Bonifacio Palacios w as the sole beneficiary of the Estate
p ur suant to Dec e den t ’ s will

. In August 2022, the P ro bate C ou rt signed an orde r approv ing a 20 19 agreement between Bonifacio Palacios and Jose Margarito Palacios settling the claims
between them and dis bursing the interpleaded funds

. 5

4 In their or iginal petition against the Bank , Intervenors asserte d claims of negligence and b reach of the deposit agreement and alleged that they discovered that the Bank “ h ad g iven their b rother, Jos e Margari to Palacios , a citiz e n of Mexico, a ccess to th e accounts they were to inherit ” a nd tha t the Bank “ complet ed wire transfers at the behest of Jose Margarito Palacios of half the money available in Plaintiffs ’ accounts to J ose Margarito Palac ios ’ [s] own Compass ac count ” ev en tho ugh he w as not an accoun t hol der of their father ’ s accounts that were designated for the m.

5 The agreement provided that Bonifacio Palacios would be paid on behalf of the Est ate $300,000 ou t of the funds interpleaded in the court reg istry and that J ose M argarito Palacios and5 Around the same time in A ugust 2022 , the jury trial in the underlying proc eeding
occurred. In the i r live p eti tion at the time of the trial , Interven ors asserted a c la im of unjust
enric hment against Jo se Margarito Palacios , invoked the discovery r ule , a nd sought for each of
them to be awarde d $1 00,000 against hi m
. 6 They alleged that he h ad “ a confiden t ial rela tio nship
with Decedent ” ; that in br e ach of his duty under that relationship or w ith actual fraud , he

“ obtained access t o Dec edent ’ s bank accounts and diverted to himself monies total ing $400 ,000.00 that the De cedent had inte nded and arranged to be l eft to Int ervenors ” ; and that

“ [ b ] y doi n g so, [he] depr ived them of monies they would ha ve ot herwise inherited from
Decedent after his passing. ” In his answer and counterclaim , Jo se Margarito Pala cios assert ed
the affirmativ e defe nses of limitations and q uasi

- es top pel , sough t a declaratory judg ment that
Intervenors as P

. O

. D

. be neficiaries “ had no interest in the accounts during the account owner ’ s li fetime , ” and sought attorney ’ s fees. See Tex. Ci v . Prac. & Rem. Code § 3 7 .0 0 9 (aut horizing
court to award c ost s an d r easonable a n d necessary attor ney ’ s fees as are equitable and jus t in proceeding under chapter)

. Intervenors testified as witnesses at trial

. The ir testimony was consistent that
Decedent was n ot mentally imp aired b ut that he did no t speak or re ad Eng lis h a nd relied on
Jose Margarito Palacios to assi st him

. They further testified consistently that Decedent was an honest man and that th ey believed him when he told them they would each recei ve $200,000
when he died

. The y al so testified about when a nd how the y each received approximately

hi s attorneys wou ld re ceive $245,677.44, which was the rema ini ng balance of the in terplead funds.

6 In th eir o r iginal petition in inter vention, Intervenors asse rted a claim for tort ious inter ference with pro s p ecti ve inheritance righ ts. The T exas Supreme C ourt has since held that there is n o cause of action in Texas for inte ntional interference wit h in heritance. Archer v. Anderson , 556 S.W.3d 228, 229 (Tex. 2018 ).6 $100,000 from the Bank af ter their father died and when and how they re ceived inform ation
from the B ank that pointed to Jose Margarito Palacios receiving mon ey from their P.O.D.

accounts

. Fo r example, Barr testifi ed about try ing to obtain informat i on from the B an k in February 2014 af ter re ceiving less than the $200 ,000 that she expected from her P.O.D. account
and then testified that she did not receiv e inf o rmation from the B ank until after Intervenors sued
the B an k :
Q. Wha t did you do after receiving your money and not being able to get any information as to why it wasn ’ t all that you were expecting?
A. Well, I could not get any information from the bank so I was asking the bank what happe ne d becau se we don ’t know w here the money went so we sued the bank. Q. Did you believe that

— so during the course of the lawsuit against the bank, can you tell us what happene d next? A. Well , once th e bank got sued , they st arted giving us information. Q. O K. And w hat did that in f ormation tell you ? A. The information point [ed] to Jose.

The exhibits incl uded documents pertain ing to th e P

. O

. D

. accounts and other
accounts that Dec edent held at the Bank during his l ife and at th e time of his death . It was
und is puted that De c edent w as t he on ly account holder on the P

. O

. D

. accounts , but In tervenors testifie d that his signature o n documents relating to th ose accounts was “ uncharacteristic

. ” It
also was undis puted that as of 2009, Dec edent and Jose Margarito Palaci os were joint a cco u nt hol ders wi th the right to survivorship on an other account (the Joint Account) . In August 20 12,
th e J oint A ccount received tra ns fer s of approximately $4 00,000 from th e P.O.D. accounts ; that approximate amo unt was then wired out of the J oin t A ccount to Jos e Margari to Palacios ; and7 Dece dent opened a new P.O.D. account in the amount of $200,000 for two of the Intervenors and
added one of the other Intervenors as a benefi ciary to the P.O.D. account in the amoun t of $200 ,000 of another Interveno r
. Th e effect o f these t ra nsaction s was that there were two P.O.D.

accounts in the amount of $200,000 for the Intervenors s u ch that they eac h received approximately $100,000 from the accounts after Decedent died, instead of the $200,000 that they
were exp ecting.
Jose M argarito Pala cios ’ s only wi tness at trial was his attorney , who testified about his incurred attorney ’ s fees

. Jose Margarito Palacios filed a motion for directed verdict , which includ ed amo ng its g rounds tha t limitations barr ed Intervenors ’ claim of unjus t enrichm en t

. He argued that the discov ery rule di d not apply , that the burden was on Intervenors to establish any tolling of limi tations , and that they h a d fa iled to do so

. The trial court den ied
this moti on
. The t rial court also overrul ed Jose Margar ito Palac io s ’ s objections to the trial

c ourt ’ s charge to the jury

. His objections to the c harge included that it fai led to address
limitati ons
. The charge instructed the jury that “ unjust enrichment ” w as “ t he unjust retention of
a benefit t o the loss of anot her, or the re tention of money or property of a nother against the fundamental principles of ju st ice or equity and good co nscience ” and asked t he j ury : “ Was
J ose Margarito Pal acios unjustly enri ched as a re sult of divert ing to himself asset s that would
have o the rwi se passed to [ Inter venor] ? ” The jury answered “ yes ” as to each Inter venor and
found $100,000 in da mages for each I ntervenor. The jury also answere d “ $0.00 ” when asked ,

“ What is the reasonable fee for the necessary services of Def endant ’ s atto rney , sta ted i n dollars
and cent s ? ”8 Jose Margarito Palacios filed a motion for judgment no twithstanding the verdict, again ar guing among his asserted grounds th at limitati ons b arred Intervenors ’ claim of unjus t

en r ichme nt as a matter of law

. He argued tha t Interv e nor s had wa ived reli ance on any limit ations

- a v oidance defenses , such as the discovery ru le, because they had failed to prove or seek to submit to the jury any su ch defenses

. T he trial court did not e xpressly rule on
this motion.
In Febr uary 2023 , the t ria l c ou rt signed the f inal judgment

. The final judgment
states that “ the jury returned a ve rdict finding that Defendant Jose Margarito Palacios unjustly enriched himself with $400,000.00 that woul d have gone to Int er venors from [Decedent] v ia
donat ive tran s fer ” ; awarded each Inter venor $100 ,000 , f or a t otal award of $400 ,000 , agai nst Jose Margarito Palacios ; and ordered that he tak e n othing on his counterclaim fo r declaratory judgmen t

. Jose Margarit o Palacios filed a mo tion for new t r ial , a gain arg uing that Inte rven ors ’ claim was barred by limitations as a matter of law, and Intervenors filed a motion to vacat e the judgment on the s ettlement agr eement between Bo nifacio Palacios and J ose Margarito Palacios

. By letter, the trial court inform e d Interv enors tha t it no longe r had jurisdi ction to consider their motion, and Jose Margarito Palaci os ’ s motion for new trial was overru led by operation of law.
T hese ap peals followed

.

ANALYSIS
Interv enors ’ Cross

- Appe al
We be gin with Intervenors ’ cros s - appe al because they ch alleng e this Court ’ s jurisdiction over this appe al. Intervenors cont end that this Co urt does not have jurisdiction over
this appeal because the judgment is not actual ly a final judgment. Th e y cont end that the9 judgment is not actually fi na l because the ir clai m to the funds that the Bank interpleaded in to the

re gistry of the Proba te Court rema ins open.
There is a “ presumpti on that a judgment rendered a ft er a con ventio nal trial on the merits is final and appealable. ” See Pate l v. Nations R enovation s, LLC , 6 61 S.W.3d 151, 154 (Tex. 2023) (per c uriam) ( quoting Lehmann v. Har

- Con Corp. , 39 S.W.3d 191, 199 (Tex. 2001) ) ; see also Lehman n , 39 S.W.3d at 195 (explaining ge neral r ule that appeal may only be taken from final judgment tha t disposes of all pend ing part i es and claims in record )

. Further , “ [i] f the judgment clearly and unequivocally states that it finally disposes of all claims and parties, the

a ssessment is resolved in favor of f inding finality, and the reviewing court cann ot review t he
record. ” Patel , 661 S.W.3d at 154 (cit ing In re Elizondo , 544 S.W.3d 824, 827 (Tex. 2018) (orig. proceeding) (per curiam) ). Here, the judgment followed a jury trial and is “ clearly and unequi vo cally final on
its face. ” See i d. A fter granting relief t o Interve nors and or dering that Jose Margarito Palaci os tak e nothin g on his coun terclaim, the judgment states :

All other relief not awarded here in is denied. This judgment is final and appealabl e. All writs and processes necessary to enforce this jud gm ent shall issue.

See i d. (concluding that combination of statements together formed “ cl ear indication of finality ” ). Thus , we concl ude that we have jurisdiction over this appeal

. But, t o t he ext ent that Intervenors ’ cross - a ppeal concern s the funds tha t the B ank interplead ed in to the registry of th e Probat e Court , we do not ha ve jurisdiction to consider their complaints in this appeal

. W e ha ve taken judicial notice of our file on the related mandamus proceeding in which Interven ors challe nged the P roba te C ourt ’ s approval o f the sett lem ent10 agreeme nt and disbursement of funds in its p r oceeding c on cerning the Estate , however that proceeding is not before us in thi s appeal

. See In re Barr , No. 03

- 23

- 0019 4

- CV, 2023 Tex. App.
LEXIS 3234 (Tex. App.

— Austin May 1 2, 2023, orig. proceedin g) (mem. op.)

. Intervenors were
dismissed from that proceed ing ; they did not appeal the Probate Court ’ s order dismissing th em from t hat proceeding ; and in any case, t his appeal is not from that proceeding

. In this conte xt, b ecau se the P robate C ourt has a pp roved the settlement agreement and disbursed the fun ds , any opi nion that we would give on this issue would be merely advi s ory. See Patterson v. Planned Parenthood of Hous

. & Se. Tex., Inc. , 971 S.W.2d 439, 443 (Tex. 1998) ( “ The c ourts of this state

are not empowered to give advisory opinions. ” )

. It follows that we do not have jurisdiction to
consider this issue in the con text of t hi s appeal

. For these reasons, we overrule Interv en ors ’ issues on cross - appeal and turn to
Jose M ar garito Palac ios ’ s is sues
.

Jose Margarito Palaci os ’ s Appeal
Jose Margarito Palacios raises eight issues challenging the trial court ’ s final ju dgment an d ask ing this Court to re nder judgment in hi s fa vor as to In tervenors ’ unjust
enrichment claim and hi s counterclaim for de c larator y judgment

. We begin with hi s challenges
to the Interven o rs ’ claim of unju st enrichment

. Claim of Unjust Enrichmen t
In h is first issue, Jose Margarito Palacios arg u es that the trial court ’ s d enial s of his
motion for dir ec t ed ve rd ict, his objec tion to th e charge, his motion for ju dgment not withstand ing
the v erdict, and his motion for new trial should be reversed and judgmen t rendered in his fa vor on Intervernors ’ unju st en richment claim because th eir claim w as barred as a matter of law by11 the applicable two

- year statute of limitatio ns
. See Elledge v. Friberg

– C ooper Water Supply Corp. , 240 S.W.3d 869, 871 (Tex. 2007) (per cu ri am) ( declar ing that claims of unju st enrich ment
are gover ned by the two

- year statute of limitatio ns in Sect ion 16.002 of Tex as Ci vi l Practice and
Remedies Code ) ; see also Tex. Civ. Prac. & Rem. Code § 16.003(a )

. We review a trial court ’ s denial o f a moti on for directed verdict and a motion for judgment notwithstanding the verdic t un der a legal suffici e n cy standard of review. City of Keller
v. Wilson , 168 S.W.3d 802, 823 (Tex. 2005) . Unde r this standard, we c onsider the evidence in the light most favorab le to the non - movant, disregarding all c ontrar y evidence and inferenc es
. See King Ranch, Inc. v. C ha pman , 118 S.W.3d 742, 750

– 51 (Te x. 2003)

. A trial court shou ld grant a d irected verdict for the defendant if the plain tif f

’ s evidence does not rai se a mat er ial fact
issue esse ntial to the plaint iff ’ s right or recover y or “ if the plaintiff admits or the ev idence conclusively establishes a defense to the plaintiff ’ s cause of action

. ” Prudenti al Ins. Co. of Am

. v. Financial Rev

. S ervs. , Inc. , 29 S.W.3d 74, 77 ( Tex. 2000). Similarly, a tr ial c ourt may grant a judgment notwithstanding the verdict if a direc te d verdict would have been proper

. See Tex. R.
Civ. P. 301 (stating that court may render judgment non obstante veredicto if dire cted verdict
would have be en proper) ; Tiller v. McLure , 121 S.W.3d 709, 713 (Tex. 2003) (per cu riam) ( stating that tr ial cour t may grant judgment notwithstandi ng the verdict when there is no
eviden ce to suppor t one or more of the jur y ’ s findings on issues necessary to liability ( ci ti ng Brown v. Bank of Galveston , Nat ’ l Ass n , 9 63 S.W.2d 511, 513 (Tex. 1998) ) )

. And a jury finding
should be d is regarded if a legal principle prevents a party from prevailing on a claim or defen se
. See Houston Lighting & Power Co. v. City of Wharton , 1 01 S.W.3d 633, 6 38 (Tex. App.

— Houston [ 1st Dist. ] 2003, pet . denied) (ex p laining that court may disre gard jury fi nd ing if “ legal princi ple prevents a party from prevailing on its claim or defense ” )

.12 “ As a general rule, a cause of action accrues and the sta tute of limita ti ons begins

to r un w hen fac ts com e into existence that authorize a party to seek a jud icial remedy

. ” Provident Life & A ccident Ins. v. Knott , 128 S.W.3d 211, 221 (Tex. 2003) ; see Ag ar Corp. , Inc.
v. Electro Cir s
. Int ’ l, LLC , 580 S.W.3d 1 36, 144 (Tex

. 201 9) ( explaining that st atute of
limitations be gin s to run when claim accrues and that “ c ause of acti on accrues when facts come into existence that permit a plaintiff to recover ” ( c i ting Exxon Mobil Corp. v. Rincones , 520 S.W .3d 572, 593 (T ex. 2017) ) )

. “ In mo s t cases, a cause of action a ccrues when a wrongful act causes a legal injury, regard less of when t he pla intif f learns of that injury or if all resulting damages have yet to occ ur
. ” Knott , 128 S.W.3d at 221 (citing S.V. v. R.V. , 933 S. W.2d 1, 4 (Tex. 1 99 6 )) ; see Regency F ield Ser vs
. , LLC v. Swif t Energy Operating, LLC , 622 S.W.3d 807,
814 (Tex. 2021) ( explaining that once def endant ’ s wrongful conduct cause s legal injury, “ injur e d party ’ s claims based on that wron gful conduct accr ue ” and limitations begi ns to run even if

c la imant does not know that legal injury has occurred , specific cause of inj ury, o r party responsible fo r i njury )

. The date w hen a cause of action acc rues ge nera lly is determined as a
matter of law. See Hooks v. Samson Lone Star, L td

. P ’ ship , 457 S.W.3d 52 , 57

– 58 (Tex. 2015) (citing Etan Indus., Inc. v. Lehmann , 359 S.W.3d 620, 623 (Tex. 201 1) (per curiam ) ) ; Knott , 128 S.W.3d at 2 21

. An exception to this r ule is the “ discovery ru l e , ” which is a common law exception to the statute of limitations and “ defers accrual of a cause of actio n until the plaintiff knew or, exercisi ng re asonab le dilig ence, should have known of the facts giving r ise to the cause of acti on. ” Co mputer Assocs. Int ’ l, I nc. v. Altai, Inc. , 918 S.W.2d 453, 455 (Tex. 1996)

. It

“ applie s on a categorical bas is to injuries that are both in herently undiscovera ble a nd obj ectively
verifiable. ” Va ldez v . Hollenbec k , 465 S.W.3d 217 , 229 (Te x. 2015) (ci ting Shell Oil Co.13 v. Ross , 356 S.W.3d 924, 9 30 (Tex. 2011)) ; see HECI Expl

. Co. v. Neel , 982 S.W.2d 881, 886 (Tex. 1998) (discussing dis covery rule )

. A party seeki ng to apply the dis covery rule to av oid a
limi tations bar m ust p lead it and, in a trial on the mer i ts, prove and obtain a finding that it applie s or the discovery rule is waived

. See Woods v. William M. Mer cer, Inc. , 769 S.W.2d 515, 518 (Tex. 1988) (s tati ng tha t party asserting discovery ru le bears burden of prov i ng and sec uring
fa vorable findings at tr ial) ; Smith v. McKinney , 792 S.W.2d 740, 742 (Te x. App.

— Houston [14 th Dist.] 1990, writ denied ) (ho lding that discovery rule is “ plea in confess ion and avoi dance ” and that plaintiff waived dis c overy rule because th ere was n o “ pleading, pr oof or finding ” )

. Here the evidence establis h ed as a matter of law that Interv enors ’ claim of unjust
enrichment accrued on Octob er 26, 2013, the date of Dec eden t ’ s death beca use tha t i s the date
that they becam e the owners of the P.O.D. a ccounts at the Ban k and could have sought a jud icial remedy concernin g those accounts

. See Tex. Est. Code § 113. 1 03 (a) ( “ During the lifetime of a n

o riginal payee of a P.O.D. acc ount, the acco unt belong s to the original paye e an d does not belong to the P.O.D. payee or payees ” ) ; Clark v. Dill ard ’ s Inc. , 460 S.W.3d 714, 720

– 2 1 (Tex. App.

— Da llas 2015, no pet.) ( defining unjust enrichm ent as occur r in g “ whe n the defendant has wrongful ly secured or p assively r eceived a benefit from ano ther that would be unconscionable to retain, and the defendant obtained the benefit from the plai ntiff by f raud, duress, or the taking of an undue advantage ” and st at ing that ev idence concl us iv ely establis hed when cl a im for u njust
enrich ment accrued

— “ facts came into existence that authorized Clark to seek a judicial remedy
when Dillard ’ s first used Cl ark ’ s image for packaging without having paid Clark for the right to
use his ima ge on product packaging ” )

. B ut Inter ve n ors did not f ile their claim of unju st

en richment against Jose Margarito Palacio s u ntil more tha n two years later

— when they14 intervened i n Bonifacio Palacios ’ s pending suit in January 20 16. Thus, the ir claim was b arr ed as
a matter of law by lim itations un less a n a voida nce d efense to limitations applied.
Inter v enors rai sed the discovery rule in their pleadings and argued to the tri a l

court that the d is covery rule applied , but t hey did not seek to o b tain a jury find ing on it

. 7 Thus , even if the discover y r ule applies to the type of unjust enrichm ent claim that Intervenors alleged , they waived its applic ability by not obtaining jury findings on it , and in any case, they did not
pr esent evidence that would hav e s up ported app lying the discovery rule here

. See Woods , 769 S.W.2 d at 518 ; see a lso Bark e r v. Eckman , 21 3 S.W. 3d 306, 312 (Tex. 2006) (explaining that party seeking to benefit f rom discovery r ule “ has the burden of obtaining findings to support
its ap plication ” and that tria l c ourt could n ot determine that discovery rule ap plie d as matte r of
l aw “ under the state o f th e p leadings and the record ” becau se exactly what plain tiff should have
known o f facts giving rise to claim was disputed). Rather , their own pleadings and the ev ide nce establ ish ed that Intervenors ’ injury was no t in herently u ndisco verable but discovera ble during the limitations period

. See Hollenbec k , 465 S.W.3d at 229 ( appl ying di scovery rule on categorical bas is to injuries that are both in herently undiscoverab le and objectively verif iable ).
Intervenors ’ plead ings and evide nce es tablis hed that they knew about the P.O.D.

accoun ts at the B ank before Decedent d ie d and that , within mo nths of his death, they kn e w that they were not receiving t he anticipated amount of $2 00,000 and that the infor mation provided by

7 In th eir live pleadings, Interv en ors in v o ke[d] the discovery r ule, as they were not alerte d to what Defendant had done until they actually went to the ba nk following Decedent ’ s death and reali zed that all the mo nies that Dece dent intended for t hem t o inheri t were not availa ble to them. Moreove r , given their inabil ity to obtain any information from the bank about Decedent ’ s acc o unts in gen eral, they did not discover until months later that Defendant was to blame for their missing monies.15 the B an k pointed to Jos e Margarito Palacio s as be ing the per son to blame , but they waited to file
suit aga inst Jose Margar i to Palacios until after the limitations period had expired

. See id

. Although they fi led suit against the Ban k within months of Dec ed e n t ’ s death and the Ba nk
asserted third

- par ty claims against Jose Margarito Palacio s in that case , Inter venors agreed to the
dismissal of that s uit. The y also did no t plead or arg ue that limitations was toll ed as to their unjust en richment claim by their pr evio us suit ag ainst the Bank or that thei r cl aim against
Jo se Margarito Palacios should relate back to when their suit a gainst the Bank was filed for
limitatio ns p urposes
. See U niversity of Tex. Health Sci . C tr

. a t San Antonio v. Bailey , 332 S.W .3d 395, 400

– 0 1 (Tex. 201 1) (d iscussing relation

- ba ck d octrine and observing that ordinarily adding new party in amended pleading does not relat e back to original proceeding).
On this record , we conclude tha t Intervenors ’ claim fo r u njust enrichment was
b arr ed by limit ations as a matte r of law . Thus, we s ustain Jose Margarito Palacio s ’ s first issue to the e xtent that he challenges the trial court ’ s final judgment as to Interven ors ’ claim of unjust
enrich ment and do not address his re maining is sues challen ging the final judgment a s to

t his clai m
. 8

8 In h is s econd th rough sixth issues, Jose Margarito Pala c i o s : (i) challenged the submission of unju st enric hment to the jury because “ valid express bank contracts gover ned the dispute ” ; (ii) arg ued t hat unjust enrichment is not a cause of action; (iii) argued that there was no evidence or insufficient evidence t o support the jury ’ s verd i ct on un just enrichment; (iv) argued that the charge was based on improper legal de fini tions and was harmful such t hat a n improper judgment was rendered; and (v) challe nged the tria l court ’ s re fusal to submit to the jury or rule o n his defense of qu asi

- es toppel. Bec ause we have d etermined that the trial court erred by not renderin g judgment a s to Intervenors ’ unju st e nrichment claim based on limitations as a matter of la w , we do not addr ess his addi tional issues challenging the t r ial court ’ s final j udgmen t as to Intervenors ’ cla im

. See Tex. R. App. P. 47.1, .4

.16 C

o u n ter c l aim for Declaratory Judgment In his seventh and eight h issues, Jose Margarito Palacio s c hallenges the jury ’ s fin ding of $0.00 as to his attorney ’ s fees and the portion of th e tr ial court ’ s fina l judgmen t ord ering that he tak e nothing on h is counter claim for declaratory judgment. In his p lea dings,
Jose Margarito Palacio s sought a declaration from the trial court that :

Intervenors as POD beneficiaries on the accounts, pursuan t to the contracts a nd black l etter law, had no inte rest in t he ac counts during th e account owner’s lifetime, and as such have no arguable right to the account funds that e xisted during the owner’s lifetime, other than those that e xisted on the date of Ese qu iel Palacios Espar za’s death

. On appea l, h e argue s that he esta blished as a mat ter of law that Intervenors had no lifetime
interest in the Decedent ’ s accounts and , thus, that any conduct by him or Dec edent during
Decedent ’ s li fe time could not hav e unjustl y e n riched him at Interven or s ’ expense and that th e jury wa s bou nd by his attorn ey ’ s uncontroverted expert test imony regarding his in curred attorney ’ s fe es
. The Uniform Declara tory Judgments Act (UDJA) allows a person interested
under a written contract o r o ther writing to have dete rmined any question of construct ion or validity arisi ng under the writing and to “ obtain a declaration of rights, status, or other legal
rela t ions thereunder. ” Tex. Civ. Prac. & Rem

. Code § 37.004(a). But the UDJA is “ merely a
pr ocedural device for decidin g cases a lready with in a court ’ s j urisdiction rathe r than a legislative enlargement of a court ’ s power, permitting the rendition of advisory opinions

. ” Tex as Ass ’ n of
Bus. v. Texas Air Control Bd. , 8 52 S.W.2d 440, 444 (Tex. 19 93 )

. A nd a “ decla ratory judg ment is a ppropriate only if a just iciable controver sy exists as to the rights and status of the parties and the controversy will be resolved by the declaration sought. ” Bonham State Bank v. Beadle ,17 9 07 S.W.2d 465, 467 (Tex. 19 95 ) (citing Texas Ass ’ n of Bu s. , 852 S .W.2d at 44 6) ; see al so
T ex Civ. Prac. & R em. Code § 37.008 ( “ The court may refuse to render or enter a declaratory judgment or decr ee if the judgment or decree would not terminate the uncert ainty or controversy givi ng r ise to the proce eding. ” ).
Here , t h ere was no controversy be tween the par ties o ver Intervenors ’ interest in the P.O.D. accounts prior to Decedent ’ s death. Interv enors agreed that they did not have an
interest in the accounts prior to Dec edent ’ s death

. “ During the lifet ime of an o riginal p ayee of a
P .O.D. accoun t, the account belong s to the original payee and does not belong to the P.O.D.
payee or payees. ” Tex. Est . C od e § 113 .103(a)

. It follows that the declaration requeste d by Jose Margarito Palacio s would not have resolved the contr ove rsy bet ween the parties

. See Beadle , 907 S. W.2d at 467

. Thus, we conclude that the trial court did not err in ordering that
Jose M argarito Palacio s take nothing o n his counterclaim for decl ar atory judgment. Further, l i tigants may recover attor ney ’ s fees only if spe cif ically pr ov ided by

statute o r contract

. MBM Fin. Corp. v. Woodlands Operating Co. , 292 S.W.3d 660, 669 (Tex. 2009). Jose Margarito Palacio s has not ci ted, and we have n ot found, statutory author ity that

w ould support awarding attorney ’ s fee s to him in def ending a ga inst Intervenors ’ c laim of unjust
enrichment

. See, e.g. , Bonnema v. Builders Carpet & Design Ctr., Inc. , No. 05

- 08

- 01149

- CV, 2010 Tex. App. LEXIS 1829, *11

– 13 (Tex. App.

— Dallas Mar. 16, 2010, no pet.) (mem. op.) ( denying claim for a ttorney ’ s fees based on unju st enrichment claim) ; Mason v. Mason , No. 07

- 12

- 00007

- CV, 2014 Tex. App. LEXIS 413, at * 1

– 2 (Tex. App.

— Amarillo Ja n. 13, 2014, no pet.) (mem. op. ) (o bserving that appellees agreed that “ at to rney ’ s fee s are not rec overable in a
claim for unjust enr ic hm en t ” ); Mobil Produc ing Tex. & N.M., Inc. v. Cantor , 93 S.W.3d 916, 920 (Tex. Ap p.

— Corpus Christi

– Edinburg 2002, no pet.) ( “ Section 38.001 [of the Texas Civil18 Practice and Rem edies Code ] does not provide f or recovery of fees and cos ts on an unjust
enri chm ent claim. ” ). And “ a party cannot use [the UDJA] as a vehicle to obtain
otherwise impermissib le attorney ’ s fee s
. ” See MBM Fin. Corp. , 292 S. W.3d at 669

. T hus , the jury ’ s finding of $0.00 for his a tto rn ey ’ s fees i s of no conse quenc e
. We o verrule
J ose Ma rgarito Pal acio s ’ s se venth and eight h issues

.

CONCLUSION For these reasons, we affirm the trial court ’ s final judgment to the extent it
ordered t hat J ose Margarito Palacio s take n othing on his cou nt er claim for declaratory jud gm ent ,

reverse the jud gment a s to In terven ors ’ cla im for unju st enrichment , and render judgment that
Inter v enors take no thing on this claim

.

_ ________________________________ _________ Rosa Lopez Theofanis , Justice
Before Chief Justice Byrne, Justices Kelly and Th eofanis Affirmed in Part; Reversed and Rendered in Part
Filed: April 17, 2024