NO. 15

- 0567

IN THE SUPREME COURT OF TEXAS AUSTIN, TEXAS

MARY MO CZ YGEMBA, 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, CLERK1 TABLE OF CONTENTS

TABLE OF CONTENTS

................................ ................................ ............... 1 INDEX OF AUTHORITIES

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

................................ ................................ ................... 3 The court of appeals correctly affirmed the tr ial 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.

................................ . 242 PRAYER

................................ ................................ ................................ .... 25 CERTIFICATE OF COMPLIANCE

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

................................ ................................ .... 263 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.2 d 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)

................................ ................................ .... 214 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)

................................ ................................ ....... 175 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 t he omissions were apparent from the face of the recorded deeds , and e ven 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 wa s able to do so before she signed the deeds.
II

. M ore 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 mi neral reservations in her favor.6 This is a case of seller’s remorse fueled by t he u nexpected 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

- fi duciary

- 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 rul e, established by this Court in S.V. v. R.V. as the threshold for avoiding
limita tions, even in cases alleging breach of fiduciary duty. 933 S.W. 2d 1, 23 (Tex. 1996). Mary’s petition seeks to change th at threshold and jettison society’s interests in preventin g 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 o f 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
“defense s ” to limitations, which she did not raise below. Me anwhile she disregards pleadings that she file d and which contravene her positions on

1 If 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. 2

CR: 211

- 221, 624

- 27/1414

– 24, 1827

– 29.7 appeal. Th ose pleadings include her express disavowal of any claim of inj ury arising from the “inadequate sales price.” 2 CR:269/1472

. 2 Mary also avoids mentioning that she has retained the cash proceeds
from the sale , and ha s continued to graze her cattle and use the weekend
house on one of the tracts for fifteen years

. 1 CR: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. ” 2 CR:308/1511

. I nstead 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 c ase 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
issu es 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 claim s that her sons Harry and Tommy “persuaded [her] to sel l 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
reservation s
. 1 CR: 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. 1 CR: 324

- 26/319

- 20

. “[T]here’s no notes anywhere where it even discusses oil and gas,”
said the attorney w ho prepared the deeds. “And I know that if she would have asked me about it, I would have answered it.” 1 CR :3 26 / 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 no t tell her “she should consult with any attorney .” Pet. at 2. But they drove her t o the office of the attorney
who had represented her in previous matters , a nd no one prevented her from reading the deed s or asking questions of the attorney who drafted
them

. 1 CR: 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. 1 CR : 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 ab andoned her “unfairness” claim when, in her final trial pleading, she ratified the transactions in all respects

— except for the conveyance of the minerals. 2 CR: 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.” 2 CR: 269/ 1472. Under these circumstances, Ha rry and Tommy filed a motion for summary judgment on limitation s in which they urged three grounds : (1) the nature of the alleged injury was not inherently undiscoverable; (2) Mary10 offered no objectively verifiable evidence of injury ; and (3) she knew or

r easonably should have known of her injury as a matter of law. 2 CR:51

- 52/1254

- 55

. The trial court granted the summary judgment without specifying the grounds

. 2 CR:802

- 04/2005

- 07. T he 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 cause d 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 attemp t to substitute a fiduciary’s alleged failure to
disclose ( constructive fraud ) for fraudulent intent or intent to conceal the11 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 , 9 9 8 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 obje ctively 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

. ” 2 CR: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 confront s 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. Th ose deeds, each of which plainly omitted a12 mineral reservation in her favor, do not show that Mary did not i ntend to convey the minerals ; they show only that the conveyance s 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,” t he discovery rule does not apply
here. See i d

. ARGUMENT The court of appeals correctly affirmed the trial court’s s ummary 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 injur y must be objectively verifiable to avoid limitations. In an effort to escape the statute of limitations and avoid honori ng 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.
control s 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 th e 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 4 5 3 (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.
M ary 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

. 2 CR :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 fa cts.”)

. Th e analysis applicable here is in distinguishable from the discovery

rule analysis in S.V

. , wh ere a daughter sued her father for behavioral and emotional injuries allegedly caused by childhood sexual abuse. 933 S.W.2d14 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

a

nd 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, ” t his Court held that the daughter had no objectively verifiable15 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 m eeting minutes proved officer s ’ 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/ f raudulent 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 ca s e on appeal as one for “ fraud / fraudulent
concealment. ” Pet. at 6

- 8

. It is not . As the c ourt of a ppeals correctly

n oted, 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 li mitations 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

. ” I n 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 verif ied .” S.V. , 933 S.W.2d at 4, 6

. A lthough accrual of a cause of action for limi tations purposes may
also be deferred in cases of fraud or frau dulent 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 al so 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 a lleged 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”)

. P leading the discovery rule, as Mary did, does not equate to plead ing “fraud/ fraudulent concealment, ” as Mary did not. In reiterating t his 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 co ncealment, 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/f raudulent 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 limi tations is legally
unsound

. Unlike a discovery

- rule defense , defe rring 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 ., 9 33 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 deferrin g 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 frau d .”). 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 act ual awareness of wrongfulness or injury coupled
with an intent to conceal the wrongdoing from the plaintiff, a fiduciary’s
f

ailure to disclose facts is in sufficient to prove fraud or fraudulent
concealment to avoid limitations. Earl e , 99 8 S.W.2d at 888 (refusing to19 equate fiduciary non

- disclosure with fraudulent concealment absent
additiona l evidence of fraudulent intent and that “ the defendant actually knew the plaintiff was in fact wronged, and concealed tha t fact to deceive the plaintiff”); see also Carrell v. Denton , 157 S.W. 2d 878, 87 9 (Tex. 1942) (describing as “unsound” the assertion that merel y because the relationship
between a physician and patient involves trust and confidence, fraudulent concealment can be imputed to a non

- disclosing doctor ).
C. T here was no failure , nor any admission of failure , to disclose material facts.
The record does not support Mary’s claim t hat 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 i njured by conveying the mineral
interests

. Pet. at 12. A fiduciary’s duty of full disclosure is measure d 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 extend s 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 same20 protection

. Here, to the extent that any inform al fidu ciary relationship existed between Mary and her son s, 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 who se office prepare d the deeds she now seeks to partially rescind. 1 CR:445

- 48 /450

- 53.
Even when a fiduciary duty e xists, 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 require ment to read the beneficiary’s mind. Mary’s e xcuse 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, th e mineral pages were blank.
A lthough Mary apparently thought the minerals had more value in
2012 when she filed suit than w hen 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 nece ssary 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.
Th erefore , a ny lack of discussion between Mary and her sons about minerals was not, and could not be, an “admitted” breach of a fi duciary duty of full disclosure . Nor could it serve as a substitute for objectively verifiable evidence that Mary was in fact injured by t he lack of mineral reservations and that this injury was due to the wrongful conduct of
another.
D. A rebuttable “presumption of unfairness” d oes not apply to overcome the bar of limitations.
1. Mary waived her “presumption of unfairness” a ssertion by failing to raise it below. Harry and Tommy were not required to nega te 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 respon se to the motion for summary judgment.
2CR:256

- 70/1459

- 73 . Therefore, she w aived this point on appeal by not22 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 dee ds 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 plea ding, she expressly ratified tho se transactions.
2

CR: 250/1453. Although Mary purported to confirm only the conveyance s of the surface, her partial ratific ation and her retention of th e consideration she received, in light of her knowledge of the facts she now claims constituted a breach of fiduciary duty, result ed 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 i t 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 incon sistent 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 t he 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 th us 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 p roof. 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 veri fiable proof of injury to

overcome limitations

. See i d

.24 E. The d eeds 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. M ary’s uncorroborated testimony concerning her claimed
intent is insufficient in the discovery

- rule context to preclude a summary judg ment 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 al leged “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 a n 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 2

CR:269/1472. ( “The inadequate sales pric e 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

. ” 2 CR: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 Avenue26 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 Re sponse to Petition for Review, including its headings , footnotes, and quotations, is 43 3 1

. /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