NO. 15-0567

IN THE SUPREME COURT OF TEXAS

AUSTIN, TEXAS

MARY MOCZYGEMBA,

Petitioner

v.

THOMAS J. MOCZYGEMA and HARRY LEE MOCZYGEMBA,

Respondents

RESPONSE TO PETITION FOR REVIEW

JOYCE W. MOORE 

State Bar No. 14357400

jwmoore@langleybanack.com

ROBINSON C. RAMSEY

State Bar No. 16523700

rramsey@langleybanack.com

PAULA C. BOSTON

State Bar No. 24089661

pboston@langleybanack.com 

LANGLEY & BANACK, INC.

Trinity Plaza II, Ninth Floor

745 East Mulberry

San Antonio, Texas 78212

Telephone: 210. 736.6600

Telecopier: 210. 735.6889

ATTORNEYS FOR RESPONDENTS

THOMAS J. MOCZYGEMBA and

HARRY LEE MOCZYGEMBA

FILED

15-0567

10/30/2015 5:49:26 PM

tex-7628358

SUPREME COURT OF TEXAS

BLAKE A. HAWTHORNE, CLERK
1

TABLE OF CONTENTS

TABLE OF CONTENTS............................................................................... 1

INDEX OF AUTHORITIES.........................................................................3

ISSUE PRESENTED ...................................................................................3

The court of appeals correctly affirmed the trial court’s 

summary judgment against Mary based on limitations.

UNBRIEFED ISSUES..................................................................................5

STATEMENT OF FACTS............................................................................ 8

SUMMARY OF THE ARGUMENT............................................................10

ARGUMENT.............................................................................................. 12

The court of appeals correctly affirmed the trial court’s summary 

judgment against Mary based on limitations......................................... 12

A. The court of appeals correctly applied S.V.’s holding that, even in a 

breach-of-fiduciary-duty case, the injury must be objectively 

verifiable to avoid limitations. ........................................................ 12

B. The doctrine of “fraud/fraudulent concealment” was waived and 

cannot save Mary’s case from limitations....................................... 15

C. There was no failure, nor any admission of failure, to disclose 

material facts. ................................................................................. 19

D. A rebuttable “presumption of unfairness” does not apply to overcome 

the bar of limitations.......................................................................21

E. The deeds are not “objectively verifiable evidence” of injury. ....... 24

F. Mary’s denial below of an injury arising from “inadequate sales 

price” precludes her from relying on it now. ................................. 24
2

PRAYER ....................................................................................................25

CERTIFICATE OF COMPLIANCE........................................................... 26

CERTIFICATE OF SERVICE.................................................................... 26
3

INDEX OF AUTHORITIES

Cases

Barnett v. Barnett,

67 S.W.3d 107 (Tex. 2001)....................................................................... 18

Carrell v. Denton,

157 S.W. 2d 878 (Tex. 1942).................................................................... 19

City of Houston v. Clear Creek Basin Auth.,

589 S.W.2d 671 (Tex. 1979).....................................................................22

Computer Associates Int’l v. Altai,

918 S.W.2d 453 (Tex. 1996)................................................................13, 18

Doty v. Barnard,

47 S.W. 712 (Tex. 1898)...........................................................................22

Earle v. Ratliff,

998 S.W.2d 882 (Tex. 1942)............................................................... 11, 18

Huie v. De Shazo,

922 S.W.2d 920 (Tex. 1996)....................................................................20

International Banker’s Life Ins. Co. v. Holloway,

368 S.W.2d 567 (Tex. 1963).....................................................................15

Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150 (Tex. 2004) .................................................................... 19

Johnson v. Peckham,

120 S.W.2d 786 (Tex. 1938) ....................................................................20

KPMG Peat Marwick v. Harrison County Housing Finance Corp.,

988 S.W.2d 746 (Tex. 1999)............................................................... 15, 17

Moczygemba v. Moczygemba,

466 S.W.3d 212 (Tex. App.—San Antonio 2015, pet. filed)...........10, 15, 17

Montgomery v. Kennedy,

669 S.W.2d 309 (Tex. 1984)....................................................................20

Rosenbaum v. Texas Building & Mortgage Co.,

167 S.W.2d 506 (Tex. 1943).....................................................................22

Slay v. Burnett Trust 

Co., 187 S.W.2d 377 (Tex. 1945)................................................................15

SmithKline Beecham Corp. v. Doe,

903 S.W.2d 347 (Tex. 1995) .................................................................... 21
4

S.V. v. R.V.,

933 S.W. 2d 1 (Tex. 1996)................................................................. passim

Valdez v. Hollenbeck,

465 S.W.3d 217 (Tex. 2015)..................................................................... 16

Via Net v. TIG Ins. Co.,

211 S.W.3d 310 (Tex. 2006)................................................................ 13, 21

Wagner & Brown Ltd., v. Horwood,

58 S.W.3d 732 (Tex. 2001).......................................................................17
5

ISSUE PRESENTED

The court of appeals correctly affirmed the trial court’s 

summary judgment against Mary based on limitations.

A. The court of appeals correctly applied S.V.’s holding that, 

even in a breach-of-fiduciary-duty case, the injury must 

be objectively verifiable to avoid limitations.

B. The doctrine of “fraud/fraudulent concealment” was 

waived and cannot save Mary’s case from limitations.

C. There was no failure, nor any admission of failure, to 

disclose material facts.

D. A rebuttable “presumption of unfairness” does not apply 

to overcome the bar of limitations.

E. The deeds are not objectively verifiable evidence of an 

injury. 

F. Mary’s denial below of an injury arising from an 

“inadequate sales price” precludes her from relying on it 

now. 

UNBRIEFED ISSUES

I. The lack of mineral reservations in the deeds was not 

inherently undiscoverable, because the omissions were 

apparent from the face of the recorded deeds, and even if 

a fiduciary relationship existed between Mary and her 

sons, she was aware of the need to inquire into the terms 

of the transactions and was able to do so before she signed 

the deeds. 

II. More than four years before she filed suit in 2012, Mary 

knew, or in the exercise of reasonable diligence should 

have known, that the deeds she signed in 2000 omitted 

mineral reservations in her favor.
6

This is a case of seller’s remorse fueled by the unexpected oil bonanza 

in Karnes and Wilson Counties following the advent of “fracking” and the 

discovery of the Eagle Ford shale. It is not, as Petitioner Mary Moczygemba 

claims, a “typical” breach-of-fiduciary-duty case—nor is it about the 

exploitation of “seniors.”1 Rather, this case centers on the legal and 

evidentiary requirements for the application of the discovery rule,

established by this Court in S.V. v. R.V. as the threshold for avoiding 

limitations, even in cases alleging breach of fiduciary duty. 933 S.W. 2d 1, 

23 (Tex. 1996). Mary’s petition seeks to change that threshold and jettison 

society’s interests in preventing stale and fraudulent claims by allowing 

“presumptions” to suffice for the application of the discovery rule in 

breach-of-fiduciary-duty cases, even when there is no objectively verifiable 

evidence of actual injury or fraudulent intent by the fiduciary. 

Although Mary does not acknowledge it, she essentially asks this 

Court to ignore several of its previous opinions to allow her to rely on 

“defenses” to limitations, which she did not raise below. Meanwhile she

disregards pleadings that she filed and which contravene her positions on 

 

1If anyone exploited Mary’s “senior status,” it was her other children, who 

threatened to abandon her if she did not sue to recover the minerals for them to share. 

2CR:211-221, 624-27/1414–24, 1827–29.
7

appeal. Those pleadings include her express disavowal of any claim of 

injury arising from the “inadequate sales price.” 2CR:269/1472.2

Mary also avoids mentioning that she has retained the cash proceeds 

from the sale, and has continued to graze her cattle and use the weekend 

house on one of the tracts for fifteen years. 1CR:460, 608, 937/455, 603, 

932; 2CR 646, 650/1849, 1853. Now she wants to subvert the deal by 

taking back all the minerals she conveyed—minerals that were so 

inconsequential to her at the time that, according to her story twelve years 

later, she “didn’t think about it.” 2CR:308/1511. Instead of living with the 

choices she made and the benefits she accepted, she seeks in hindsight to 

undo the deeds she signed and to “do over” the case she pled below.

 This case is not about a court changing Texas jurisprudence; it is 

about a seller changing her mind. Mary’s petition for review presents no 

issues that this Court has not already decided adverse to her position. 

 2 “CR:__/___” – electronic pagination/clerk’s pagination.
8

STATEMENT OF FACTS

The court of appeals opinion correctly states the nature of the case 

and provides a more accurate statement of facts than Mary’s petition for 

review, which contains several incorrect and inadvertently misleading 

statements, omissions, and arguments. 

For example, Mary claims that her sons Harry and Tommy

“persuaded [her] to sell them the surface interest in the 412 acres ...” Pet. at 

2. Actually, they did not persuade her to do anything: she sold the land at a 

price and on terms that she herself set, with no mention of mineral 

reservations. 1CR: 505-06, 692/500-01, 687. “At no point,” says Mary, “did 

they tell [her] that they were acquiring the minerals from her.” Pet. at 2.

More accurately, at no point did Mary tell them or the attorney who drafted 

the deeds that she wanted to reserve the minerals. 1CR:324-26/319-20.

“[T]here’s no notes anywhere where it even discusses oil and gas,” 

said the attorney who prepared the deeds. “And I know that if she would 

have asked me about it, I would have answered it.” 1CR:326/321. The 

nonexistence of any written notes concerning the minerals as well as the 

absence of any mineral reservation in the deeds reflected that the 

conveyances were “what Ms. Moczygemba wanted and how she wanted it.” 

1CR 326/321.
9

Mary complains that her sons did not tell her “she should consult 

with any attorney.” Pet. at 2. But they drove her to the office of the attorney

who had represented her in previous matters, and no one prevented her 

from reading the deeds or asking questions of the attorney who drafted 

them. 1CR:266, 659-61, 709, 717/ 261, 654-56, 709, 712.

Mary insinuates that the transactions were “unfair” to her because 

Harry and Tommy acquired the land for less than its market value. Pet. at 

11-12. But she herself set the price. 1CR:505-06, 692/500-01, 687.

Furthermore, cash formed only a part of the consideration: Mary also 

received free grazing for her cattle, free assistance with her cattle 

operations, and use of the weekend farm house on Harry’s land for her 

lifetime. 1CR:460, 608, 937/455, 603, 932; 2CR 646, 650/1849, 1853.

Regardless, Mary abandoned her “unfairness” claim when, in her 

final trial pleading, she ratified the transactions in all respects—except for 

the conveyance of the minerals. 2CR:250/1453. She also stipulated in her 

response to the motion for summary judgment that the “inadequate sales 

price is not the injury complained of” and that “the only injury complained 

of is the conveyance of the minerals.” 2CR:269/1472.

Under these circumstances, Harry and Tommy filed a motion for 

summary judgment on limitations in which they urged three grounds: (1) 

the nature of the alleged injury was not inherently undiscoverable; (2) Mary 
10

offered no objectively verifiable evidence of injury; and (3) she knew or 

reasonably should have known of her injury as a matter of law. 2CR:51-

52/1254-55. The trial court granted the summary judgment without 

specifying the grounds. 2CR:802-04/2005-07. The court of appeals 

affirmed based on the lack of objectively verifiable evidence, without 

reaching the remaining grounds. Moczygemba v. Moczygemba, 466 

S.W.3d 212, 219 n. 2 (Tex. App.—San Antonio 2015, pet. filed).

SUMMARY OF THE ARGUMENT

“Petitioners often overstate the effect of lower court opinions,” Mary 

admits. Pet. at 4. Here, she has not only overstated the effect of the lower 

court’s opinion, she has misstated the effect of the precedent that it 

followed.

The court of appeals correctly applied this Court’s holding in S.V. 

that, for the discovery rule to apply, even in a case where the parties have a 

fiduciary relationship, there must be objectively verifiable evidence that the 

plaintiff was in fact injured and that the injury was caused by the wrongful 

conduct of another. S.V., 933 S.W.2d at 6, 23.

 Although Mary now claims “fraud/fraudulent concealment,” she 

waived this alternative defense to limitations by not raising it in the trial 

court. Regardless, her attempt to substitute a fiduciary’s alleged failure to 

disclose (constructive fraud) for fraudulent intent or intent to conceal the 
11

wrongdoing (actual fraud) ignores the equitable underpinnings of delaying 

limitations based on fraudulent concealment and presents a proposal that 

this Court has already rejected. See Earle v. Ratliff, 998 S.W.2d 882 (Tex. 

1942). 

Mary’s attempts to rely on a “presumption of unfairness” or alleged 

“admissions” of failure to disclose material facts as a substitute for 

objectively verifiable evidence of injury ignores the summary-judgment 

evidence, or lack of it, in this case, as well as admissions and positions that 

appear in her pleadings—including her express “confirmation” of the deeds 

and her disavowal of any claim of injury based on “the inadequate sales 

price.” 2CR:250, 269/1453, 1472. Mary also does not address her problem 

that, because she relies on the discovery rule, “the evidence must rise to a 

higher level of certainty.” S.V., 933 S.W.2d at 19. Had she filed her suit 

timely, rather than twelve years after she signed the deeds, she would not 

be facing the much tougher evidentiary standard that now confronts her in 

the discovery-rule context.

Mary focuses her arguments solely on the “wrongful conduct” 

component of a “legal injury,” while failing to offer anything other than her 

own speculative testimony to show that she was in fact injured when she 

signed the deeds in 2000. Those deeds, each of which plainly omitted a 
12

mineral reservation in her favor, do not show that Mary did not intend to 

convey the minerals; they show only that the conveyances occurred.

Mary’s remorse today over having conveyed the minerals does not 

equate to an “injury in fact” in 2000. See S.V., 933 S.W.2d at 15 (“While R.

fit a behavioral profile for someone who has been sexually abused, the 

experts acknowledged that that does not mean she had actually been 

abused.”) Without objectively verifiable evidence of an “injury in fact” as 

well as “wrongful conduct of another,” the discovery rule does not apply 

here. See id. 

ARGUMENT

The court of appeals correctly affirmed the trial court’s summary 

judgment against Mary based on limitations.

A. The court of appeals correctly applied S.V.’s holding

that, even in a breach-of-fiduciary-duty case, the injury 

must be objectively verifiable to avoid limitations.

 In an effort to escape the statute of limitations and avoid honoring the 

deeds she signed fifteen years ago, Mary claims that the court of appeals 

“misapplied” this Court’s holding in S.V. v. R. V, 933 S.W.2d 1 (Tex. 

1996). It did not. The court of appeals correctly determined that S.V.

controls and appropriately applied it. Granting Mary’s request for relief

would require this Court to overrule its opinion in S.V. that the two-part 

discovery rule test applies even if the parties are in a fiduciary relationship.
13

 S.V. clarified that the nature of the injury, not the label attached to 

the cause of action, determines whether the discovery rule will apply. See

933 S.W.2d at 7; see also Via Net v. TIG Ins. Co., 211 S.W.3d 310, 314 (Tex. 

2006) (“Our attempts to bring predictability and consistency to discovery 

rule jurisprudence have focused on types of injury, not causes of action.”).

 In S.V. this Court further explored the two-part test for applying the 

discovery rule, first announced in Computer Associates Int’l v. Altai, 918

S.W.2d 453 (Tex. 1996), and ultimately held that, even in breach of 

fiduciary duty cases, a plaintiff must furnish objectively verifiable evidence 

that she was in fact injured by the wrongful conduct of another before the 

discovery rule can apply. S.V., 933 S.W.2d at 23.

Mary offered nothing but her own speculative testimony to support 

her allegation that, had she thought about it at the time she signed the 

deeds, she would have wanted to reserve the minerals. 2CR:509/1212. 

Therefore, the court of appeals correctly held that the discovery rule did not 

apply because this testimony was subjective, not objective. See S.V. 933 S. 

W. 2d at 15 (“[T]he bar of limitations cannot be lowered for no other reason 

than a swearing match between parties over facts.”).

 The analysis applicable here is indistinguishable from the discoveryrule analysis in S.V., where a daughter sued her father for behavioral and 

emotional injuries allegedly caused by childhood sexual abuse. 933 S.W.2d
14

at 3, 12. Because the daughter filed suit after limitations expired, she relied 

on the discovery rule, claiming that repressed memories caused by the 

trauma of her father’s abuse prevented her from bringing the suit within 

the limitations period. Id. at 3, 9-12.

 Although the cause of action pled in S.V. was for negligence, 

the fiduciary relationship that existed as a matter of law between the father 

and daughter during her minority furnished the framework for this Court’s 

discovery-rule analysis. 933 S.W.2d at 8, 13, 23. This was most clearly 

illustrated by the fact that the “special relationship between parent and 

child” was one of the factors in this Court’s “assum[ing] without 

deciding” that the daughter’s injury was inherently undiscoverable. Id. at 

8.

 When viewed in the fiduciary context, the daughter’s allegations of 

sexual abuse in S.V., if true, presented a particularly egregious case of 

fiduciary self-dealing. The father’s denial that the abuse occurred also 

confirmed that no disclosure of material facts was made at the time of the 

alleged abuse or in the intervening years. And yet, after recognizing that 

the “egregiousness” of the alleged conduct is not a factor governing the 

application of the discovery rule “because it cannot provide a workable 

standard,” this Court held that the daughter had no objectively verifiable 
15

evidence to show that the abuse had in fact occurred or that her present 

symptoms were caused by the abuse. 933 S.W.2d at 15, 23-24. 

 At least two of the cases cited in S.V. also involved allegations of 

fiduciary self-dealing and non-disclosure; however, in each of those cases a 

“paper trail” furnished objectively verifiable evidence to show the injury 

and the wrongful conduct. S.V., 933 S.W.2d at 7 (citing International 

Banker’s Life Ins. Co. v. Holloway, 368 S.W.2d 567, 580 (Tex. 1963) 

(“[S]tock transfer records and board meeting minutes proved officers’ and 

directors’ misdealing”) and Slay v. Burnett Trust Co., 187 S.W.2d 377, 385-

87 (Tex. 1945) (“[P]aper trail detailed self-dealing”)). Here, no “paper trail” 

nor any other objectively verifiable evidence supports Mary’s claims. 

B. The doctrine of “fraud/fraudulent concealment” was 

waived and cannot save Mary’s case from limitations.

1. Mary did not raise “fraud/fraudulent” in the trial 

court.

To avoid the “objectively verifiable evidence of injury” requirement, 

Mary tries to recast her case on appeal as one for “fraud/fraudulent 

concealment.” Pet. at 6-8. It is not. As the court of appeals correctly 

noted, the only “defense” Mary pled or raised in her summary-judgment 

response was the “discovery rule,” based on S.V.’s two-part test.

Moczygemba, 466 S.W.3d at 216. Her failure to raise “fraud/fraudulent 

concealment” below waived that point on appeal. KPMG Peat Marwick v. 
16

Harrison County Housing Finance Corp., 988 S.W.2d 746, 749-50 (Tex. 

1999) (“[A] party asserting fraudulent concealment as an affirmative 

defense to the statute of limitations has the burden to raise it in response to 

the summary judgment motion and to come forward with summary 

judgment evidence raising a fact issue on each element of the fraudulent 

concealment defense.”); S.V., 933 S.W.2d at 24 (declining to decide 

whether the objectively-verifiable element would apply to cases of fraud or 

fraudulent concealment because the plaintiff had not plead fraud or 

fraudulent concealment).

2. There is only one “discovery rule.”

In an attempt to avoid her waiver of “fraud/fraudulent-concealment,”

Mary asserts that “there are, in effect, two discovery rules,” of which she 

claims “fraud/fraudulent concealment” is one. Pet. at 6. But as this Court 

has clarified, only one exception to limitations can be “properly referred to 

as the discovery rule,” and it applies only if “the alleged wrongful act and 

resulting injury were inherently undiscoverable at the time they occurred 

but may be objectively verified.” S.V., 933 S.W.2d at 4, 6. 

Although accrual of a cause of action for limitations purposes may 

also be deferred in cases of fraud or fraudulent concealment, this defense is 

distinct from the discovery rule and is governed by different substantive 

and procedural rules. S.V., 933 S.W.2d at 4; see also Valdez v. Hollenbeck, 
17

465 S.W.3d 217, 229 (Tex. 2015) (“We have recognized two doctrines that 

may delay accrual or toll limitations: (1) the discovery rule and (2) 

fraudulent concealment.”); Wagner & Brown Ltd., v. Horwood, 58 S.W.3d 

732, 736 (Tex. 2001) (holding that an alleged misrepresentation may be 

relevant to a fraudulent-concealment claim, but it is irrelevant to a 

discovery-rule analysis because “[t]he discovery rule exception and tolling 

based on fraudulent concealment are distinct concepts that exist for 

different reasons”). Pleading the discovery rule, as Mary did, does not 

equate to pleading “fraud/fraudulent concealment,” as Mary did not.

In reiterating this Court’s holdings that there are “two exceptions” to 

the application of limitations—“the discovery rule and the doctrine of 

fraudulent concealment”—the court of appeals noted that Mary pled only 

one of them: “the discovery rule.” Moczygemba, 466 S.W.3d at 215. 

Therefore, only the discovery rule, not fraud or fraudulent concealment, is 

at issue here, and it is too late for Mary to assert additional defenses that 

she did not raise below. Cf. KPMG, 988 S. W. 2d at 749-50.

3. A fiduciary’s alleged failure to disclose, without more, 

is insufficient to avoid limitations based on 

“fraud/fraudulent concealment.”

 Even assuming hypothetically that Mary had properly raised

“fraud/fraudulent concealment” below, her argument that fiduciary non-
18

disclosure or “constructive fraud” is sufficient to toll limitations is legally 

unsound. 

Unlike a discovery-rule defense, deferring accrual of a cause of action 

in cases of fraud or fraudulent concealment resembles equitable estoppel.

Computer Associates, 918 S.W.2d at 456. In such cases, “accrual is deferred 

because a person cannot be permitted to avoid limitations by deceitfully 

concealing wrongdoing until limitations has run.” S.V., 933 S.W.2d at 6. 

Mary’s assertion that constructive fraud, for which no intent to deceive is 

required, should be sufficient to toll limitations ignores the crucial role that 

intent plays in providing a policy justification for deferring accrual of a 

cause of action based on fraud or fraudulent concealment. See Barnett v. 

Barnett, 67 S.W.3d 107, 126 (Tex. 2001) (“Constructive fraud ... is not the 

equivalent of common-law fraud. In order to establish constructive fraud, it 

is not necessary to establish fraudulent intent or other elements of 

common-law fraud.”).

Mary also ignores the fact that not every fiduciary failure to disclose is 

intentional or meant to conceal facts for the purpose of allowing limitations

to expire. Absent an actual awareness of wrongfulness or injury coupled 

with an intent to conceal the wrongdoing from the plaintiff, a fiduciary’s 

failure to disclose facts is insufficient to prove fraud or fraudulent 

concealment to avoid limitations. Earle, 998 S.W.2d at 888 (refusing to 
19

equate fiduciary non-disclosure with fraudulent concealment absent 

additional evidence of fraudulent intent and that “the defendant actually 

knew the plaintiff was in fact wronged, and concealed that fact to deceive 

the plaintiff”); see also Carrell v. Denton, 157 S.W. 2d 878, 879 (Tex. 1942)

(describing as “unsound” the assertion that merely because the relationship 

between a physician and patient involves trust and confidence, fraudulent 

concealment can be imputed to a non-disclosing doctor).

C. There was no failure, nor any admission of failure, to 

disclose material facts. 

The record does not support Mary’s claim that her sons “admitted” a 

breach of fiduciary duty of disclosure—or that any such breach occurred.

Pet. at 6. Nor does any such alleged “admission” constitute objectively 

verifiable evidence that Mary was in fact injured by conveying the mineral 

interests. Pet. at 12.

A fiduciary’s duty of full disclosure is measured by the nature and 

scope of the relationship. Joe v. Two Thirty Nine Joint Venture, 145 

S.W.3d 150, 159-60 (Tex. 2004) (holding that an attorney’s fiduciary duty

to a client extends only to dealings within the scope of the underlying 

relationship of the parties and “his duty to inform does not extend to 

matters beyond the scope of the representation”).

If, as Joe confirmed, an attorney’s fiduciary duties are limited by the 

scope of his representation, then laymen are entitled to at least the same 
20

protection. Here, to the extent that any informal fiduciary relationship 

existed between Mary and her sons, it was limited to helping with her 

farming and ranching operations. 1CR:605-09/610-14. It did not include 

advising her on legal matters. For legal representation in the past, Mary 

had gone to the same attorney whose office prepared the deeds she now 

seeks to partially rescind. 1CR:445-48/450-53.

Even when a fiduciary duty exists, the duty of full disclosure requires 

only that the fiduciary relate “all material facts known to [him] that might 

affect [the beneficiaries’] rights.” Huie v. De Shazo, 922 S.W.2d 920, 923 

(Tex. 1996) (emphasis added) (citing Montgomery v. Kennedy, 669 S.W.2d 

309, 313 (Tex. 1984)); see also Johnson v. Peckham, 120 S.W.2d 786, 787-

88 (Tex. 1938). A fiduciary duty does not include the requirement to read 

the beneficiary’s mind. Mary’s excuse for not mentioning the minerals until 

years later (and after they had become valuable) was that she “didn’t think 

about it.” 2CR:308/1511. Therefore, even if Harry and Tommy had been 

able to read her mind, the mineral pages were blank. 

Although Mary apparently thought the minerals had more value in 

2012 when she filed suit than when she sold them, she offered no evidence 

to show that the inclusion of the minerals in the sales added any benefit to 

her sons or caused any injury to her at the time the deeds were signed in 

2000.
21

Mary did not create a fact issue on the elements necessary to support 

her allegation that the lack of a mineral reservation was a “material fact” to 

her or anyone else at the time she signed the deeds, or that her sons “knew” 

about her unexpressed (and allegedly forgotten) wish to retain them. 

Therefore, any lack of discussion between Mary and her sons about 

minerals was not, and could not be, an “admitted” breach of a fiduciary 

duty of full disclosure. Nor could it serve as a substitute for objectively 

verifiable evidence that Mary was in fact injured by the lack of mineral 

reservations and that this injury was due to the wrongful conduct of 

another.

D. A rebuttable “presumption of unfairness” does not 

apply to overcome the bar of limitations.

1. Mary waived her “presumption of unfairness”

assertion by failing to raise it below.

Harry and Tommy were not required to negate theories that Mary did 

not raise in the trial court; they were “only required to meet [her] case as 

pleaded” and as presented in her response to their summary-judgment 

motion. Via Net, 211 S.W.3d at 313 (quoting SmithKline Beecham Corp. v. 

Doe, 903 S.W.2d 347, 355 (Tex. 1995)). Mary’s proposal to replace 

objectively verifiable evidence of injury with a “presumption of unfairness” 

does not appear in her response to the motion for summary judgment. 

2CR:256-70/1459-73. Therefore, she waived this point on appeal by not 
22

raising it below. See City of Houston v. Clear Creek Basin Auth., 589 

S.W.2d 671, 674-75 (Tex. 1979).

2. Mary’s confirmation of the deeds further precludes 

her reliance on any “presumption of unfairness.” 

Mary is additionally precluded from relying on any “presumption of 

unfairness” to show an alleged injury from the face of the deeds because, in 

her final trial pleading, she expressly ratified those transactions. 

2CR:250/1453.

Although Mary purported to confirm only the conveyances of the 

surface, her partial ratification and her retention of the consideration she 

received, in light of her knowledge of the facts she now claims constituted a 

breach of fiduciary duty, resulted in a ratification of the entire transaction. 

See Doty v. Barnard, 47 S.W. 712, 714 (Tex. 1898) (“A person cannot accept 

and reject the same instrument, or, having availed himself of it as to part, 

defeat its provisions in any other part and this applies to deeds, wills, and 

all other instruments whatever.”); Rosenbaum v. Texas Building & 

Mortgage Co., 167 S.W.2d 506, 508 (Tex. 1943) (“An express ratification is 

not necessary; any act based upon a recognition of the agreement as 

subsisting or conduct inconsistent with an intention to avoid it has the 

effect of waiving the right to rescission.”).
23

3. The discovery rule’s stricter evidentiary standard 

precludes substituting a “presumption of unfairness”

for an objectively verifiable injury. 

Mary’s attempt to substitute a “presumption of unfairness” for 

objectively verifiable evidence of legal injury confuses two different 

standards of proof and ignores the point this Court made in S.V.: the 

discovery rule’s standard concerning objectively verifiable evidence to avoid 

limitations is a much tougher evidentiary proposition than that required to 

create a fact question on liability at a trial on the merits. 933 S.W.2d at 19 

(“Had [the plaintiff filed suit before limitations ran], the conflict in the 

evidence would be for the jury to resolve. Because she did not, however, and 

because she thus relies on the discovery rule, the evidence must rise to a 

higher level of certainty.”). 

If Mary had “asserted her claim within the period prescribed by the 

Legislature, she would have been entitled to prosecute her claim despite 

any weaknesses in her proof. Because she did not do so, greater verifiability 

is necessary at the threshold for invocation of the discovery rule.” S.V., 933 

S.W.2d at 25. Although her uncorroborated self-serving assertions may be 

sufficient to create a presumption of unfairness to shift the burden of proof

at trial, they do not provide objectively verifiable proof of injury to 

overcome limitations. See id.
24

E. The deeds are not “objectively verifiable evidence” of 

injury. 

A “legal injury” consists of an injury in fact caused by the wrongful 

conduct of another. S.V., 933 S.W.2d at 6. Both of these elements are 

missing here. Mary’s uncorroborated testimony concerning her claimed 

intent is insufficient in the discovery-rule context to preclude a summary 

judgment because it is not objectively verifiable. See S.V., 933 S.W.2d at 15 

(holding that the testimony of an interested witness is not objectively 

verifiable). Because the conveyance of minerals is not inherently wrongful 

or injurious, there must be some objective evidence—such as corroborative 

documentation or disinterested-witness testimony—for the discovery rule 

to apply. See Id.

The deeds themselves do not provide objective proof that Mary did 

not mean to convey the minerals; they only prove that she did convey them. 

The sole evidence that she offered to support her alleged “injury in fact” was 

her own testimony—and even that was nothing more than conclusory 

speculation that, had she thought about it in 2000, she would have wanted 

to keep the minerals. 2CR:308/1511.

F. Mary’s denial below of an injury arising from 

“inadequate sales price” precludes her from relying on 

it now.

In her response to the summary-judgment motion, Mary expressly 

disavowed any claim of injury based on an inadequate sales price.
25

2CR:269/1472. (“The inadequate sales price is not the injury complained 

of.... The injury complained of is the conveyance of the minerals. .... Mary 

knew what the sales price was at the time of the sale. She had no idea that 

she was conveying her minerals along with the surface. This is the legal

injury.”) (emphasis added). Nevertheless, she now tries to rely on the 

“below market price” as objectively verifiable evidence of breach of 

fiduciary duty. Pet. at 15. But she admitted below that there was no injury 

in fact from the “inadequate price.” 2CR:269/1472. Therefore, her claim is 

procedurally precluded by waiver and substantively irrelevant to 

limitations.

PRAYER

For these reasons, Respondents ask this Court to deny the petition for 

review and grant them all other relief to which they are entitled.

Respectfully submitted,

/s/ Joyce W. Moore 

JOYCE W. MOORE

State Bar No. 14357400

jwmoore@langleybanack.com

ROBINSON C. RAMSEY

State Bar No. 16523700

rramsey@langleybanack.com

PAULA C. BOSTON

State Bar No. 24089661

pboston@langleybanack.com

LANGLEY & BANACK, INC.

Trinity Plaza II, Ninth Floor

745 East Mulberry Avenue
26

San Antonio, Texas 78212

Telephone: 210. 736.6600

Telecopier: 210. 735.6889

ATTORNEYS FOR RESPONDENTS

THOMAS J. MOCZYGEMBA and

HARRY LEE MOCZYGEMBA

CERTIFICATE OF COMPLIANCE

I certify that the number of words in this Response to Petition for 

Review, including its headings, footnotes, and quotations, is 4331.

/s/ Robinson C. Ramsey 

ROBINSON C. RAMSEY

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing document has 

been sent to the following on October 30, 2015:

James J. Harnett, Jr.

Email: jim@hartnettlawfirm.com

Will Ford Hartnett

Email: will@hartnettlawfirm.com

THE HARTNETT LAW FIRM

2920 N. Pearl Street

Dallas, Texas 75201

Telephone: 214.742.4655

Telecopier: 214.742.4656

/s/ Robinson C. Ramsey__ 

ROBINSON C. RAMSEY