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NO. 04-14-00110-CV

IN THE COURT OF APPEALS FOR THE

FOURTH COURT OF APPEALS DISTRICT

SAN ANTONIO, TEXAS

__________________________________________________________________

MARY MOCZYGEMBA,

 Appellant,

v.

THOMAS J. MOCZYGEMBA and HARRY LEE MOCZYGEMBA,

 Appellees.

__________________________________________________________________

APPELLANT’S MOTION FOR EN BANC RECONSIDERATION

 

 

TO THE HONORABLE JUSTICES OF THE FOURTH COURT OF APPEALS: 

MARY MOCZYGEMBA, Appellant, files this Motion under Rule 49 Tex. R. 

App. P. 

Appellant’s Motion for Rehearing was denied on May 4, 2015. The opinion 

in this case holds that deeds to a fiduciary by a beneficiary of the fiduciary 

relationship are not evidence of an objectively verifiable injury. Appellant 

believes that en banc reconsideration is vital here because the opinion: 1) impairs

well-established Texas fiduciary law; 2) creates confusion in the law because it 

contradicts previous opinions of this Court without explanation; and 3) creates a 

dangerous precedent in the jurisprudence of elder abuse.

ACCEPTED

04-14-00110-CV

FOURTH COURT OF APPEALS

SAN ANTONIO, TEXAS

5/19/2015 8:06:08 PM

KEITH HOTTLE

CLERK

 FILED IN 4th COURT OF APPEALS SAN ANTONIO, TEXAS 5/19/2015 8:06:08 PM KEITH E. HOTTLE Clerk
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This Court Erred By Repudiating the Cardinal Rule That 

Transactions between a Fiduciary and a Beneficiary

Are Presumptively Fraudulent and Tortious

Unquestionably, the three deeds at issue in this case constituted transactions 

between Appellant and her fiduciaries. Unquestionably, the three transactions 

were objectively verifiable, because they are themselves specific documents.1

 

Transactions between a fiduciary and the beneficiary of the fiduciary relationship 

are “presumptively fraudulent.” Jordan v. Lyles, -- S.W.3d --, 2015 WL 393791 

*4 (Tex.App.-Tyler 2015, no pet.); Lesikar v. Rappeport, 33 S.W.3d 282, 298

(Tex.App.-Texarkana 2000, pet. denied); Chien v. Chen, 759 S.W.2d 484, 495 

(Tex.App.-Austin 1988, no writ).

However, this Court repudiated the well-settled rule that the deeds are

presumptively fraudulent when it erroneously held the following:

While the deeds are evidence that Mary’s mineral interests passed to 

her sons, they are not evidence that the mineral interests were 

wrongfully transferred to her sons.... we cannot conclude that the 

mere transfer of mineral interests necessarily equates to Mary having 

suffered from a wrongful transfer of her property. 

[Op., at 11].

This Court’s erroneous holding above also repudiated the well-established 

“presumption of unfairness” of “transactions between a fiduciary and a party to 

whom the fiduciary owes its duties.” Porter v. Denas, 2006 WL 1686515 *5 

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 Polk Mechanical Co., LLC v. Jones, 2009 WL 1900414 *4 (Tex.App.-San Antonio 2009, pet. 

denied) (not for publication).
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(Tex.App.-San Antonio, pet. denied) (not for publication); Lee v. Hasson, 286 

S.W.3d 1, 21 (Tex.App.-Houston [14th Dist.] 2007, pet. denied); Miller v. Miller, 

700 S.W.2d 941, 946 (Tex.App.-Dallas 1985, writ ref'd n.r.e.).

The common law deems the deeds to be injurious to Appellant, in and of 

themselves, subject to rebuttal proof by Appellees of “the fairness of the 

transaction.” Porter at *5. Because this Court made no mention of any evidence 

showing the fairness of the deeds to Appellant (and, in fact, did not even mention 

the legal concept of “fairness”), the effect of the above presumptions stand, and the 

deeds are fraudulent and tortious by default. The only way this Court could 

conclude that these deeds do not provide objectively verifiable evidence of the 

injury, is to repudiate these long-standing presumptions.

This Court Erred by Focusing on the Beneficiary’s Intent While Ignoring

The Fairness of the Transactions to the Beneficiary

This Court ignored the issue of the fairness of the transactions and based its 

opinion solely on the allegedly unexpressed intent of Appellant:

Mary herself testified that she wanted to transfer her property to her 

sons at a price lower than market value because they were her sons 

and they were helping her. ... Mary agrees that at the time of the 

transfer of the property, there were no discussions about the mineral 

interests because she never thought about the mineral interests. 

[Op., at 11]. Texas case law, however, is clear that the determination of injury 

resulting from a transaction between a fiduciary and the beneficiary of the 

fiduciary relationship focuses solely on the fairness of the transaction, and the 
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beneficiary’s intent in the transaction is not determinative (and generally not even 

relevant). In Kirkpatrick v. Cusick, 2013 WL 6730049 *6 (Tex.App.-Corpus 

Christi 2013, pet. denied), the court of appeals held that the fiduciaries had failed 

to meet their burden of proving the fairness of their survivorship account 

transaction with the beneficiary of their fiduciary duties, and further that:

even if [the beneficiary] knowingly and voluntarily named [the 

fiduciary] as a joint tenant with right of survivorship on the bank 

accounts, that fact by itself does not conclusively demonstrate that 

[plaintiff] could not prove her pleaded allegations that [the fiduciary] 

breached a fiduciary duty to [the beneficiary].

Id. (emphasis added). Likewise, this Court in Sorrell v Elsey, 748 S.W.2d 584

(Tex.App.-San Antonio 1988, writ denied), held that:

Whether the complaining party in a fiduciary transaction understood 

the transaction in question is not the critical issue. ... Under fiduciary

circumstances, a claim that a transaction was adopted by the 

execution of a document in conjunction therewith does not 

preclude an inquiry into the fairness of the entire transaction and the 

imposition of the fiduciary burdens. Archer v. Griffith, 390 S.W.2d at 

739, 740. 

Id. at 586 (emphasis added). 

The Court in Miller held that the fact that the beneficiary of the fiduciary 

relationship 1) read the contract with her fiduciary; 2) signed it; 3) asked no 

questions about it; and 4) intended to be bound by the contract was not relevant to 

the determination of the fairness of the transaction. Miller, 700 S.W.2d at 943. 
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The Court held that the beneficiary’s intent was immaterial, and that the sole issue 

was the fairness of the transaction:

Under the charge as submitted by the court, materiality of the 

nondisclosed facts did not depend on Judy's state of mind. The court 

defined “material fact” as a “fact which a reasonable person, under the 

same or similar circumstances, would attach importance to in 

determining his course of conduct or action.” If the facts known to 

Howard were “material” in this sense, he had a fiduciary duty to 

disclose them, and his breach of this duty cannot be excused on the 

ground that Judy has failed to establish her reliance on Howard's duty 

to disclose them.

Id. at 948. This Court erred by doing the converse of the above three cases –

ignoring the fairness of the transactions and determining the lack of a documented 

injury to Appellant based only on her unexpressed intent.

This Court Erred By Contradicting Its Own Opinions

Tolling Limitations in Breach of Fiduciary Duties Cases

A. Appellant cited Sorrell v Elsey, 748 S.W.2d 584 (Tex.App.-San 

Antonio 1988, writ denied), a deed rescission case very similar to this one, for the 

following propositions: 1) the fact that Appellant may have understood that she 

was making a gift of some sort and consented to the gifts by signing the deeds was

irrelevant to the determination of her injury; and 2) a gift deed from the beneficiary 

of the fiduciary relationship to the fiduciary is prima facie injury to the beneficiary. 

This Court completely ignored Sorrell and, in fact, held the opposite -- that the 

intent of the beneficiary determines whether she was injured, and that a gift deed to 

a fiduciary is not a prima facie injury.
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B. Similarly, Appellant cited Camp Mystic, Inc. v. Eastland, 390 S.W.3d 

444 (Tex. App.-San Antonio 2012, pet. granted, remanded by agr.), a lease case,

for the propositions that 1) the discovery rule applies to transactions between a 

fiduciary and the beneficiary of the fiduciary relationship; and 2) the signing by a 

beneficiary of a contract with a fiduciary does not preclude an attack by the 

beneficiary on the contract for unfairness. This Court completely ignored Camp 

Mystic, and held the opposite, that the discovery rule does not necessarily apply to 

transactions between a fiduciary and a beneficiary; and that a beneficiary’s 

unexpressed intent precludes an attack on a written transaction with a fiduciary.

This Court Erred In Applying the S.V. Opinion to This Case

Appellant pled that Appellees breached their “fiduciary duty of full 

disclosure” by failing to disclose to Appellant “the ramifications of signing these 

deeds, in particular that [Appellant] would be giving up her mineral interests.”

(CR1455). As shown below, the failure of a fiduciary to disclose material facts to 

the beneficiary has been characterized as both fraud and fraudulent concealment.

Although S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996) was a repressed memory 

case and not a fiduciary transaction case, this Court cited it twenty times in its 

opinion. Clearly, S.V. provided the fundamental underpinning for its holding that 

Appellant’s injury was not objectively verifiable. The Supreme Court in S.V., 

however, acknowledged that the typical discovery rule analysis, including the 
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requirement of an objectively verifiable injury, does not apply to cases “involving”

fraud or fraudulent concealment:

Strictly speaking, the cases in which we have deferred accrual of 

causes of action for limitations purposes fall into two categories: 

those involving fraud and fraudulent concealment, and all others. 

The deferral of accrual in the latter cases is properly referred to as the 

discovery rule. We observe the distinction between the two categories 

because each is characterized by different substantive and procedural 

rules. ... Fraud, we have said, in and of itself prevents running of the 

statute of limitations ... Restated, the general principle is this: 

accrual of a cause of action is deferred in cases of fraud or in 

which the wrongdoing is fraudulently concealed, and in discovery 

rule cases in which the alleged wrongful act and resulting injury were 

inherently undiscoverable at the time they occurred but may be 

objectively verified.

Id. at 4 (emphasis added). Because this case involves fraud and fraudulent 

concealment, limitations was automatically tolled, the discovery rule does not 

apply, and there is no requirement of an objectively verifiable injury. Thus, the 

entire foundation for, and analysis in, this Court’s opinion is fundamentally 

erroneous. By requiring an objectively verifiable injury in a case involving fraud 

and fraudulent concealment, this Court’s opinion turns S.V. on its head, and holds 

the opposite of S.V. 

A fiduciary’s transactions with a beneficiary and failure to disclose material 

facts to a beneficiary are presumptively fraud:

All transactions between a fiduciary and his principal are 

presumptively fraudulent and void; therefore, the burden lies on the 

fiduciary to establish the validity of any particular transaction in 

which he is involved. ... Silence is equivalent to a false 
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representation where circumstances impose a duty to speak and one 

deliberately remains silent. Spoljaric v. Percival Tours, Inc., 708 

S.W.2d 432, 435 (Tex.1986). So, for there to be actionable 

nondisclosure fraud, there must be a duty to disclose. Bradford v. 

Vento, 997 S.W.2d 713, 725 (Tex.App.-Corpus Christi 1999, pet. 

granted); Hoggett v. Brown, 971 S.W.2d at 487–88. Whether such a 

duty exists is a question of law. Bradford v. Vento, 997 S.W.2d at 

725. A duty to disclose may arise in four situations: (1) where there is 

a special or fiduciary relationship; ... 

Lesikar v. Rappeport, 33 S.W.3d 282, 298-99 (Tex.App.-Texarkana 2000, pet. 

denied) (emphasis added). See also, Bright v. Addison, 171 S.W.3d 588, 599 

(Tex.App-Dallas 2005, pet. denied) (“The failure [of a fiduciary] to disclose 

constitutes fraud.”).

A fiduciary’s failure to disclose material facts to a beneficiary of the 

fiduciary relationship is also fraudulent concealment:

A breach of a fiduciary duty of disclosure is tantamount to 

concealment for limitations purposes. Id. at 645; see Seureau, 274 

S.W.3d at 228 (including as additional element of fraudulent 

concealment doctrine “a duty to disclose the wrong”). Thus, the 

statute of limitations for a breach of fiduciary duty claim does not 

begin to run until the claimant “knew or should have known of facts 

that in the exercise of reasonable diligence would have led to the 

discovery of the wrongful act.” Little v. Smith, 943 S.W.2d 414, 420 

(Tex.1997)

Dernick Resources, Inc. v. Wilstein, 312 S.W.3d 864, 878 (Tex.App.–Houston [1st

Dist.] 2009, no pet.) (emphasis added).

A breach of a [fiduciary’s] duty to disclose is tantamount to 

concealment. Id. Failure to disclose in such situations constitutes 

fraudulent concealment which will prevent the wrongdoer from 

perpetrating further fraud by using limitations as a shield. 
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Haas v. George, 71 S.W.3d 904, 913 (Tex.App.–Texarkana 2002, no pet.)

(emphasis added).

By S.V.’s express holding, the type of breach of fiduciary duty case 

presented here tolls limitations, regardless of the objectively verifiable prong of the 

discovery rule.

By Ruling That Appellant’s Injury Cannot Be Objectively Verified, The

Court Has Effectively Created a New Shield for Defalcating Fiduciaries

This Court’s opinion is a classic example of “bad facts make bad law.” 

Collateral damage from the Court’s opinion will likely be significant. Essentially, 

the Court has rejected all of the burdens placed on fiduciaries to prove fairness and 

prove full disclosure - burdens that this Court has frequently recognized and 

enforced, and which satisfy the objectively verifiable prong. Instead, the Court has

effectively classified Mary’s claim as just an unverifiable swearing match, because 

Mary had to document her intention to keep the minerals. This Court’s opinion

turns the law of fiduciary duty on its head and switches the burden away from the 

fiduciary and back to the beneficiary, as in any arms-length case. More 

importantly, this Court negated its own holding in Sorrell that “whether the 

complaining party in a fiduciary transaction understood the transaction in 

question is not the critical issue.” Id. at 586. Here, the Court has determined that 

the critical issue is whether Mary understood the transaction: that is, she had to 
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understand that the minerals were being taken and objectively express that she 

wanted to keep her minerals. 

Essentially, this Court held that Mary could not objectively show that she 

intended to retain the minerals in order to satisfy the objectively verifiable prong. 

The Court specifically held that deposition testimony is not objectively verifiable:

The evidence in this case consists of deposition testimony, which is 

not objectively verifiable evidence, and copies of the actual deeds 

showing a transfer of the mineral estate from Mary to Tommy and 

Harry, respectively. While the deeds are evidence that Mary’s mineral 

interests passed to her sons, they are not evidence that the mineral 

interests were wrongfully transferred to her sons.

This statement by the Court effectively holds that no abusive gift, loan, sale,

or transfer between a beneficiary and her fiduciary will ever be subject to the 

discovery rule. Apply this Court’s holding above to a deed given by an elderly 

beneficiary to her lawyer, to a check given to a close confidante, or to the signing

of a survivorship account agreement at the request of a fiduciary. To trigger the 

discovery rule in those situations, the beneficiary would be forced by this Court to 

objectively prove that the transaction was not intended to be a gift, or not intended 

to be compensation, or not made for some other legitimate reason. And, the Court 

has effectively opined that one cannot show that the injury is objectively verifiable 

via the long recognized presumptions of fraud and unfairness or through testimony. 

How could any beneficiary ever meet that prong under this Court’s erroneous 

interpretation? 
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This Court’s opinion is potentially devastating to beneficiaries of fiduciary 

duty, especially to the elderly who are more apt to execute transactions without 

fully grasping what they are. Any time a fiduciary slips a piece of paper in front of 

his beneficiary, the clock will now run, even though the beneficiary may not know 

what he or she signed, or the true effect of signing the document and regardless of 

whether the transaction is unfair. Because of this Court’s opinion, “sharp 

bargains,” like the one here, will become the new elder abuse game in town. 

WHEREFORE, Appellant prays that the Court consider this Motion, grant 

a reconsideration en banc, and grant general relief.

Respectfully submitted,

THE HARTNETT LAW FIRM

By: /s/ Jim Hartnett, Jr.

Jim Hartnett, Jr.

Texas Bar Card No. 09169200

jim@hartnettlawfirm.com 

Will Hartnett

Texas Bar Card No. 09170200

will@hartnettlawfirm.com 

Fred Hartnett

Texas Bar Card No. 00790833

fred@hartnettlawfirm.com 

Melinda J. Hartnett

Texas Bar Card No. 24032403

2920 N. Pearl Street

Dallas, Texas 75201

Telephone (214) 742-4655

Facsimile (214) 855-7857
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ATTORNEYS FOR MARY MOCZYGEMBA, 

APPELLANT

CERTIFICATE OF COMPLIANCE

I hereby certify that the above document complies with the word count 

limits set forth in the amendments to the Texas Rules of Appellate Procedure. The 

document has a word count of 2,768.

/s/ Jim Hartnett, Jr.

 Jim Hartnett, Jr.

CERTIFICATE OF SERVICE

I hereby certify that on the 19th day of May, 2015, a copy of the above and 

foregoing response was sent pursuant to T.R.A.P. Rule 9.5 to the following parties 

and counsel of record:

Joyce W. Moore

Langley & Banack, Inc.

745 East Mulberry, Suite 900

San Antonio, Texas 78212

Telephone (210) 736-6600

Facsimile (210) 735-6889

jwmoore@langleybanack.com 

Attorneys for Thomas J. Moczygemba

And Harry Lee Moczygemba

/s/ Jim Hartnett, Jr.

Jim Hartnett, Jr.