1 

## NO. 12

- 22

- 00142 -CV
IN THE COUR T OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS

CANDI SCOTT, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF L. W. S. AND JOHN SCOTT , A PPELLANT S
V.
LARRY TEEL AND LISA TEEL , APPELLEE S §

§

§ APPEAL FROM THE 294TH

JUDICIAL DISTRICT COU RT

VAN ZANDT COUN TY, TEXAS
MEMORANDUM OPINION Candi Jo Scott, Individually and on Behalf of the Estate of L.W.S. and John Scott (the Scotts ) appeal the trial court’s grant of summary judgment in favor of Larry and Lisa Teel. In two issues, the Scotts u rge the trial court abused its discretion. We affirm.

B ACKGROUND On June 21, 2018, L.W.S. and his friend, L.R.A. were operating a side-by-s ide utility task vehicle (UTV) owned by L.R.A.’s parents, Raymond and Teresa Burns. The children began riding t he UTV on the Burns’s property and traveled onto the Teels’s adjacent property where they were involved in an accident that killed L.W.S. Candi Jo Scott and John Scott are L.W.S.’s parents. The Scotts filed suit against Loyal Teel on February 7, 2020, be li eving he owned the property where the accident occurred. 1 According to the Scotts, the Burnses told them that Loyal owned the property. F or several months, Loyal failed to allege that he was not the property

1 The Scotts also filed suit against the Canton Trail Riders Association and its board of directors for mishandling and misrepresenting themselves during an alleged f undr aising campaign. Those defendants are not parties to this appeal.2 owner. He failed to name Larry or Lisa as i nt erested parties, persons with knowledge of relevant facts, or potential parties in his answers or discovery responses. The statute of limitat ions expired on September 15, 2020. 2 On December 15, 2020, Loyal filed a motion for summary judgment that inclu de d an affidavit from Teresa Burns confirming Loyal was not the owner of the property on the day of the accident. At a December 16 mediation , L oyal confirmed he was not the owner. He also supplemented his disclosure responses and listed Larry and Lisa as p ersons with knowledge, potential parties, and potential re sponsible third parties. On December 17, the Scotts amended their petition to inclu de Larry , Lisa , and the Teel Loyal Living Trust

. 3 In January, the Scotts again amended their petition to assert t hat Larry and Lisa are liable for premises liability,
att ractive nuisance, negligence, and gross negligence. They alleged that Loyal is liabl e for premises liability, attractive nuisance, negligence, gross negligence, negligent misrepresentation, and fr au d by nondisclosure. And they asserted causes of action f or civil conspiracy and joint enterprise against all defendants. Larry and Lisa fil ed a traditional and no evidence motion for summary judgment , in which they asserted that the Scotts ’ suit again st them is barred by the statute of limitations. In suppor t of their motion, Larry and Lisa provided affidavits stating they purchased the prop erty via warranty deed on April 11, 2018. And in the no

- evidence portion o f their motion , they argued the Scott s have no evidence of their causes of action, including civ il conspiracy and joint enterprise. In response, along with claiming fact issues pre clude summary judgment on each cause of action, the Scotts urged the trial court had the discretion to extend th e statute of limitations under the Supreme Court’s Emergenc y Orders . They further urged that Larry and Lisa did not negate their fraud claim, w hich would toll limitations. The Scott s attached a copy of the warranty deed to their response. The trial cour t found that the causes of action were barred by the statut e of limitations and dismissed all causes of action against Larry and Lisa with preju dice. Larry and Lisa filed a motion to sever, which the trial court granted. This appeal followed.

2 The s tatute of limitations would normally expire two years after the date of the accident, June 21, 2020. See T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 16.003 (West 2017 ). However, the Te xas Supreme Court’s twenty

- first
e mergency o rder moved all deadlines f rom March 13, 2020 through September 1, 2020 to September 15, 2020. See Twenty

- First Emergency Order Regarding the Covid

- 19 State of Disaster , 609 S.W.3d 128, 129 (Tex. 2020)

.

3 The cl aims against the Canton Trail Riders Association and its board of dire ctors wer e nonsuited in this petition.3 S UMMARY J U DGMENT In their first issue, the Scotts contend the trial court erred in granting summary judgment based on the statute of limitation s . Specifically, t hey urge that Loyal fraudulently concealed the identities of the property owners. Therefore, they cont en d the trial court should not have enforced the statute of limitations. Larry and Lisa argue that their identities as owners of the property was public record, therefore, the Scotts had constructive notice. Standard of Review and Applicable Law We revi ew a trial court ’ s granting of summary judgment de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). For a traditional s ummary judgment, the movant has the burden of showing there is no genuine issue of material fact and it is enti tl ed to judgment as a matter of law. T EX

. R. C IV

. P. 166a(c). We review the record “in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.” City of Keller v. Wilson , 168 S.W.3d 802, 8 24 (Tex. 2005). A defendant moving for summary judgment on an affirmative defense must conclusively establish the defense. Schlumberger Tech. Cor p. v. Pasko , 544 S.W.3d 830, 833

– 34 (Tex. 2018) (per curiam). A suit for an action for injury resulting in dea th must be brought no later than two years after the day the cause of action accrues

. T EX

. C IV

. P RAC

. & R EM

. C ODE A NN . § 16.003 (West 2017)

. “O rdinarily, the legal injury rule dictates that accrual occurs when ‘a wrongful act causes a legal injury, even if the fact of injury is not discovered until later, and even if all resulting damages have not yet occurred.’” Pasko , 544 S.W.3d at 834 (quoting Sw. Energy Prod. Co. v. Berry

–

Helfand , 491 S.W.3d 699, 721 (Tex. 2016)); see also Exxon Corp. v. Emerald Oil & Ga s Co. , L.C. , 348 S.W.3d 194, 202 (Tex. 2011) (“Causes of action accrue and statutes of limitations begin to run when facts come into existence that authorize a claimant to seek a judicial remedy.”). When a cause of action accrues is typically a question of la w. Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 221 (Tex. 2003). There are “two doctrines that may delay accrual or toll limita tions: (1) the discovery rule and (2) fraudulent concealment.” Valdez v. Hollenbeck , 465 S.W.3d 217, 229 (Tex. 2015 ). “The discovery rule applies on a categorical basis to injuries that are both inherently undiscoverable and objectively verifiable.” Id

. “W hen applicable, the discovery rule ‘defers the accrual of the cause of action until the injury was or could hav e be en reasonably discovered.’” Id

. (quoting4 Shell Oil Co. v. Ross , 356 S.W.3d 924, 927, 929

– 30 (Tex. 2011)). For the discovery rule to
app ly, “the nature of the injury incurred [must be] inherently undiscoverable and the evidence of injury [must be] objec ti ve ly verifiable.” S.V. v. R.V. , 933 S.W.2d 1, 6 (Tex. 1996) (quoting Comput. Assocs. Int ’ l, Inc. v. Altai, Inc. , 918 S.W.2d 453, 456 (Tex . 1996 )). “An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limi tations period despite due diligence.” Id

. at 7. Fraudulent concealment, on the other hand, “is a fact

- specific equitable doctrine that toll s limitations until the fraud is discovered or could have been discovered with reasonable diligence.” Valdez , 465 S.W.3d at 229. To constitute fraudulent concealment, the “plaintiff must establish an underlying wrong, and that (1) the defendant actually kn ew the plaintiff was in fact wronged, and (2) concealed that fact to deceive the plaintiff.” Vanderpool v. Van d er

pool , 442 S.W.3d 756, 768 (Tex. App.

— Tyler 2014, no pet.). W hen a defendant has fraudulently concealed the facts forming the basis of the plain tiff ’ s claim, limitations does not begin to run until the claimant, using reasonable diligence, discovered or sho uld have discovered the injury. KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp. , 988 S.W.2d 746, 750 (Tex. 1999). Analysis On app eal, t he Scotts contend they presented more than a scintilla of evidence that Loyal committed fraud in both his plead in gs and discovery response s to warrant tolling the statute of limitations based on fraudulent concealment. They also urge that there is a genui ne issue of material fact as to when the y should have discovered Larry and Lisa are the property owners. In su pp ort of their arguments, the Scotts point to evidence that Loyal failed to disclose he was not the owner of the property until after the s tatut e of limitations passed. He did not assert the defense in his original ans wer, amended answer, disclosure respo ns es, or the third

- party petition. He had not asserted the defense on September 29, 2020 , when he scheduled mediation for December 16. On Sept e mber 15, Teresa Burns signed an affidavit that Loyal was not the owner, which Loyal subsequently attached to hi s motion for summary judgment. However, the Scotts ignore the fact that Lisa and Larry purchased the property via warranty deed in April 2018, which was recorded in the public property records. The Scotts attached a file

- stamped copy of the deed from t he Van Zandt County property records to their response to the motion for summary judgment. The deed lists the grantees as Larry E. Teel an d Lisa L. Teel of Pittsburgh, Pennsylvania and is dated April 11, 2018. As a result, Larry and Lisa5 urge the Scotts ha d constructive notice of their ownership and the statute of limitations should not be tolled. 4 An instrument that is properly recorded in th e correct county is notice to all persons of the existence of the instrument. T EX

. P ROP

. C ODE A NN

. § 13.002 (We st 2014 ). When a plaintiff

can discover the nature of its injury through reasonable diligence, the statute of limitations does not toll. See, e.g., Wagner & Brown, Ltd. v. Horwood , 58 S.W.3d 732, 737 (Tex. 2001) (ruling that plaintiffs ’ injury was “the ty pe that could have been discovered with reasonable diligen ce” and “therefore the discovery rule does not apply to defer accrual of their claims .”); HECI Expl
. Co. v. Neel , 982 S.W.2d 881, 886 (Tex. 1998) (“As owners of an interest in the mineral es ta te, the Neels had some obligation to exercise reasonable d iligence in protecting their interests. This includes exercising reasonable diligenc e in determining whether adjoining operators have inflicted damage.”). Because the warranty deed was filed in t he public records, a simple search would have demonstrated w ho owned the property. The Scotts’ counsel’s knowledge of this is evidenced by the f act that when John was asked in h is deposition whether they checked online to find the proper owner of the prop er ty before filing the lawsuit, h is counsel instructed h im not to answer the question. Had the Scotts exercised reasonable diligence, they woul d have discovered the proper defenda nt, regardless of any purported fraud by Loyal. See KPMG , 988 S.W.2d at 750

. Therefore, the trial court did not err in granting summary judgment based on the statute of limitations. We overrule the Scotts’ first issue

. 5

4 Larr y and Lisa also assert that the Scotts had actual notice of their ownership as early as July 2018, citing a search result in the Van Zandt Co unty Appraisal District records that is attached to Loyal’s motion for summary judgment. However, this document wa s not attached to either Larry ’s and Lisa’s motion or the Scotts’ response. Therefore, we do not consider it. See Spacek v. Charles , 928 S. W.2d 88, 92

- 93 (Tex. App.

— Houston [14th Dist.] 1996, writ dism’d ) ( a pp ellate co urt may only review summary judgment record in light of issues expressly raised and proof actually presented to trial court by parties in their written motions and responses ) ; T EX

. R. C IV

. P. 166a (c), (d).

5 The trial court’s order also dismiss ed the Scot ts’ causes of action of civil conspiracy and joint enterprise against Larry and Lisa. Civil conspiracy is a theory of derivative liability and shares a limitations period with that of the underlying tort. Agar Corp., Inc. v. Electro Circuits, In t’ l, LLC , 580 S.W.3d 136, 142

- 43 (Tex. 2019). T he Scotts rely on Loyal’s purported fraudulent concealment as the basis for this claim, bu t as previously discussed, the statute of limitat ions was not tolled with respect to this claim

. And joint enterpris e is anothe r derivative liability theory that can be used to circumvent a statute of limitations; however, the re must be evidence supporting this theory. See Burchinal v. PJ Trailers

- Semi nole Mgmt. Co., LLC , 372 S.W.3d 200, 215

- 16 (Tex. App.

— Texarkana 201 2, no pet.)

. But the Scotts provide d less than a scintilla of evidence to support the elements of joint enterprise , particularly with respect to an agreement and common purpose among th e me mbers of the group

. See id. ( the elements essential to a joint en terprise are: (1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that pur pose , among6 E XTENSION U NDER E MERGENCY O RDERS In their second issue, the Scotts argue the trial court abused its discreti on by refusing to extend limitations for their claims. They contend that the trial court had authority to extend limitations under the Texas Sup r eme Court’s emergency orders conce rning the COVID pandemic. In support of their argument, the Scotts again re ly on their fraud allegations against Loyal. The parties both reference the twenty

- sixth and twenty

- ninth emergency orders. Both orders state t hat “all court s in Texas may in any case, civil or criminal

. . . modify or suspend any and all deadlines and pr ocedures, whether prescribed by statute, rule or or der

. . .” Twenty

- Sixth Emergency Order Regarding the Covid

- 19 State of Disaster , 6 2 9 S.W.3 d 135, 135 (Tex. 2020); Twenty

- Nint h Emergency Order Regarding the Covid

- 19 State of Disaster , 6 2 9 S.W.3d 863, 86 3 (Tex. 2020). The twenty

- sixth order allowed courts to extend deadlines to December 1, 2020 , while the twenty

- ninth allowed courts to extend d eadlines until February 1, 2021. See Twenty

- Sixth Emergency Order , 609 S.W.3d at 135; Twenty

- Ninth Emergency Or der , 609 S.W.3d at 863. These orders were repeatedly amended throughout the pandemic to allow courts to extend deadlines. The most recent ord e r with identical language was issued on July 19, 2021, and allowed Texas courts to extend deadlines until Octo be r 1, 2021. See Fortieth Emergency Order Regarding the Covid

- 19 State of Disaster , 629 S.W.3d 911, 912 (Tex. 2021). Beginning with the forty -th ird emergency order issued in September 2021 , the discretionary extensions were limited to justice and municip al courts and applied to trial related deadlines and procedures , as well as deadlines and procedures fo r pretrial hearings. Forty- Third Emergency Order Regarding Covid-19 State of Disaster , 629 S.W.3d 929, 929-30 (Tex. 2021). The twenty

- ninth order was in effec t when the Scotts sued Larry and Lisa. Twenty

- Ninth Emergency Order , 6 2 9 S.W.3d at 863. The f orty

- third order was in effect when Larry and Lisa filed their motion for summary judgment. Forty- Third Emergency Order , 629 S.W.3d at 930. The forty

- ninth ord er was in effect at the time summary judgment was granted and did not provide for extensions

. See Forty- Ninth Emergency Order Regarding Covid -19 State of Disaster , No. 22-9022, 2022 WL 1161548 (Tex. March 22, 2022).

the members; and (4) an e qual right to a voice in the direction of the enterprise, which gives an equal right of control )7 However, even were we to assume the tri al court had the discretion to extend the statute of limitations under a previous emergency ord er, we decline to hold the trial court abu sed its d iscretion. Under the terms of the order, a trial court “may” modify or suspend any deadl ine. See Twenty

- Nint h Emergency Orde r , 62 9 S.W.3d at 863. In general, “may” is a permissive term that gives rise t o discretionary authority or grants permission or a power. See T EX

. G OV ’ T C ODE A NN . § 311.016(1) (West 2013 ); Skeels v. Suder , No. 02 -18-00112- CV, 2021 WL 4785782 , at *8 (Tex. App.

— Fort Worth Oct

. 14, 2021, no pet.) (mem. op. on reh’g). Consistent with t he use of this permissive term, Texas cour ts have interpreted the emergency orders as generally permitting trial courts to extend deadlines rather than requiring t hem to do so. See Kim v. Ramos , 632 S.W.3d 258, 270 (Tex. App.

— Houston [1st Dist.] 2021, no pet.) (collecting cases). That is, the order vests trial courts with “broad discretion to modify or suspend ‘any deadlines and procedures’ prescribed by statute.” The terms of the Twenty

- Ninth Order did not command the trial court to suspend the limitati ons period but left that decision to the t rial cour t’s discretion. See Twenty

- Ninth Emergency Order , 62 9 S.W.3d at 863. As discussed above, the Scotts failed t o file suit against the proper party because they failed to exercise reasonable due diligence

. The Scotts have not argued that the pande mic interfered with their attempts to locate the proper owners of the property at issue. Accordingly, the trial court di d not abuse its discretion in declining to extend the statute of limitations under the applic able emergency orders. We overrule the Sc otts’ sec ond issue.

D ISPOSITION Having overruled the Scotts’ first and second issues, we affirm the trial court’s j udgment.

J AMES T. W ORTHEN Chief Justice Opinion delivered January 11, 2023. Pan el consisted of Worthen, C.J., Hoyle, J., and Neeley, J.8 

## COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT

JANUARY 11, 2023

NO. 12-22-00142- CV

CANDI S COTT, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF L. W. S. AND JOHN SCOTT , Appellants V. LARRY TEEL AND LISA TEEL , Appellee s
Appeal fr om the 29 4th District Court of Van Zandt County, Texas (Tr.Ct.No. 20-00058A & 22-00059) THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgm ent. It is therefore ORDERED, ADJUDGED and DECREED that the judgment of the cou rt below be in all things affir med , all costs of this appeal are assessed against Appellants, CANDI SCOTT INDIVIDUALL Y AND ON BEHALF OF THE ESTATE OF L. W. S. AND JOHN SC OTT , and that this decision be certified to the court below for observance. James T. Worthen , Chief Justice

. Panel consisted of Wort hen, C.J., Hoyle, J., and Neeley, J.