Affirmed in part; Reversed in Pa rt and Remanded and Opinion Filed November 29, 2022 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-21-00382-CV SHYLA RYAN, Appellant V. TX RCG, LLC, Appellee On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-18-13256 MEMORANDUM OPINION Before Justices Partida-Kipness, 1 Nowell, and Smith Opinion by Justice Smith Appellant Shyla Ryan sued appellee TX RCG, LLC 2 and other defendants alleging damages resulting from mold exposure in her apartm ent. In a single issue, Ryan asserts the trial court erred in gr anting TX RCG’s traditional and no-evidence motion for summary judgment on her cause s of action for negligence, gross

1 The Honorable Leslie Osborne participated in the submission of this case; however, she did not participate in issuance of this memorandum opinion due to her resignation on October 24, 2022. The Honorable Robbie Partida-Kipness has substitu ted for Justice Osborne in this case. See T EX

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. P. 41.1 (a), (b)(1). Justice Partida-Kipness has reviewed the briefs and the record before the Court.
2 TX RCG is not represented by counsel in this app eal and, therefore, was unable to file a brief. See Kunstoplast of Am., Inc. v. Formosa Plastics Corp, USA , 937 S.W.2d 455, 456 (Tex. 1996) (per curiam) (corporation can appear in court only through licensed attorneys).–2– negligence, violations of the Texas Deceptive Trade Practices Act (DTPA), 3 and fraud. We affirm the trial court’s order in part, reverse the order in part, and remand this case to the trial court for further proceedings. Factual Background Ryan leased Unit #107 at the Thunderbir d Condominiums (the property) in Dallas beginning June 16, 2015. At the time, VVSN Holding, LLC owned the property and Infinity Propert y Management, LP managed it. During Ryan’s lease term, water leaked from her HVAC unit. Sh e reported the problem to Infinity. She also understood that there had been a wate r leak under her building that required “further work.” During 2016, she became ill with respiratory issues, headaches, fatigue, memory loss, shortness of breath, hives, and rashes. On September 30, 2016, VVSN sold the pr operty to Oyster Real Estate, LLC. The same day, Oyster sold the property to TX RCG, and TX RCG then sold the property to FUSO Corporatio n. TX RCG, however, and not Fuso, entered into an agreement with Mac Lamar Management , LLC, for Mac Lamar to manage the property beginning October 4, 2016. 4 On or about October 3, 2016, Ryan received a letter from Infinity notifying her that th e property had been sold to TX RCG and Mac Lamar would be the ne w property manager.

3 See T EX

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. C ODE A NN . §§ 17.46, 17.49, 17.50.
4 The CEO of Mac Lamar signed the agreement on October 3, 2016; the date of the TX RCG representative’s signature is illegible in the record c opy of the agreement attached to Ryan’s response to TX RCG’s summary judgment motion.–3– During the last two weeks of Novemb er 2016, Ryan observed mold on tile and sheetrock in her apartment. Mac Lamar paid for her to stay in a hotel for about three days at the end of November and be ginning of December. According to Ryan, Mac Lamar “[e]ventually” did an air quality test. Ryan did not receive the results, but Mac Lamar informed her th at she “would be all right as long as [her] immune system wasn’t compromised or [she] wasn’t sick.” On December 5, 2016, Ryan obtained an air quality test, which showed that the apartment contained toxic molds. Thereafter, she wa s afraid to stay in the apartment and stayed with friends most of the time. On December 9, 2016, Ryan’s counsel notified Mac Lamar that the apar tment was uninhabitable due to the toxic mold and the failure to repair and remedy. Procedural Background On September 10, 2018, Ryan filed th is lawsuit against VVSN, Infinity, and Mac Lamar, asserting claims for negligence , gross negligence, and DTPA violations. On November 21, 2018, Ryan filed a Firs t Amended Original Petition, which added Oyster as a defendant, 5 and, on November 4, 2019, f iled a Second Amended Original Petition adding TX RCG and Fuso as defendants.

5 Ryan subsequently dismissed her claims against Oyster.–4– On April 1, 2020, TX RCG filed a traditional and no-evidence summary judgment motion. 6 In the traditional motion, TX RCG asserted the applicable twoyear statutes of limitations barred Ryan’s claims because Ryan judicially admitted suffering symptoms of mold, which worsen ed by fall of 2016, and, on December 5, 2016, knew from an air quality assessment that her apartment contained toxic molds. Ryan, however, did not sue TX RCG until November 4, 2019, almost three years later. TX RCG’s no-evidence motion alleged Ryan failed to plead facts to show TX RCG committed any acts of negligence or gr oss negligence or that violated the
DTPA. On April 30, 2020, Ryan filed a Third Amended Original Petition. She added claims for statutory and common law fraud. Against all defendants, Ryan asserted a violation of Texas Business and Commer ce Code section 27.01, alleging she relied on false promises inducing her to enter in to her lease and stay in the apartment despite multiple signs of water penetration. With respect to TX RCG, Ryan also asserted a common law fraud claim alle ging the representations regarding TX RCG’s sale of the property were false or made recklessly as a positive assertion without any knowledge of its truth.

6 VVSN, Infinity, Mac Lamar, and Fuso also move d for summary judgment, and the trial court entered orders granting their motions. Ryan initially appealed those orders, but has since dismissed her appeal as to those parties.–5– On May 1, 2020, Ryan filed a respons e to TX RCG’s summary judgment motion. Relying on the discovery rule a nd the doctrine of fraudulent concealment, Ryan asserted that summary judgment on the statute of limitations was improper because there were fact questions rega rding “when and how long TX RCG owned the [property]” and TX RCG’s disclosure of its ownership. Further, TX RCG’S agent Mac Lamar knew the air quality in Ry an’s apartment was not safe and TX RCG, as landlord, had a duty to provide Ry an with the results of Mac Lamar’s air quality test and inform her that there was toxic mold in he r apartment. TX RCG also “had a strong purpose, to keep its’ ownershi p secret from the tena nts.” Finally, Ryan argued summary judgment as to the fraud cl aims asserted in the Third Amended Original Petition was improper because TX RC G did not address those claims in its summary judgment motion. On April 22, 2021, the trial court en tered an order granting TX RCG’s summary judgment motion without specifying its basis for doing so. Ryan appeals the trial court’s order. In a single issue, she asserts the trial court erred in granting TX RCG’s traditional and no-eviden ce summary judgment motion.
Standard of Review We review a trial court’s granti ng of summary judgment de novo. Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005). If a defendant files a combination traditional and no-evidence motion for summary judgment, we first review the summary judgment u nder the no-evidence standard in Texas Rule of Civil–6– Procedure 166a(i). E.g. , Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004). “After adequate time for discovery, a party . . . may move for summary judgment on the ground that there is no evid ence of one or more essential elements of a claim or defense on whic h an adverse party would ha ve the burden of proof at trial.” See T EX

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. P. 166a(i). The nonmovant has the burden to produce summary judgment evidence raising a genuine issue of material fact as to each challenged element of its claim or defense. Merriman v. XTO Energy, Inc. , 407 S.W.3d 244, 248 (Tex. 2013). “A no-evidence challenge will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prov e a vital fact is no more than a mere scintilla, or (d) the evidence conclusively es tablishes the opposite of the vital fact.” Id . (citations omitted). For a traditional summary judgment, th e movant has the burden of showing there is no genuine issue of material fact a nd it is entitled 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 reasonabl e inference and re solving any doubts against the motion.” City of Keller v. Wilson , 168 S.W.3d 802, 824 (Tex. 2005). A defendant moving for summary judgmen t on an affirmative defense must–7– conclusively establish the defense. Schlumberger Tech. Corp. v. Pasko , 544 S.W.3d 830, 833–34 (Tex. 2018) (per curiam). No-Evidence Summary Judgment In moving for no-evidence summary j udgment, TX RCG asserted that Ryan “failed to plead facts to demonstrat e that [TX RCG] co mmitted any acts of negligence, gross negligence or violations of the [DTPA].” A no-evidence motion must specifically state the element or elem ents for which there is no evidence. T EX

. R. C IV . P. 166a(i); Community Health Sys. Prof’l Servs. Corp. v. Hansen , 525 S.W.3d 671, 695 (Tex. 2017); Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310–11 (Tex. 2009) (rule 166a(i) “does not author ize conclusory motions or general noevidence challenges”). Here, TX RCG ch allenged Ryan’s pleadings and did not, as required, set out the specific element(s) of her causes of action for which there is no evidence. Because Texas courts st rictly enforce this requirement, see Hansen , 525 S.W.3d at 695, we conclude that a no-evidence summary judgment on Ryan’s negligence, gross negligence, an d DTPA claims is improper. Traditional Summary Judgment In its traditional summary judgment moti on, TX RCG asserted the statute of limitations barred Ryan’s negligence, gross ne gligence, and DTPA causes of action. The causes of action are subject to two-year statutes of limitations. See T EX

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. C ODE A NN . § 16.003(a) (suit for personal injury must be brought “not later than two years after the day the cause of action accrues”); T EX

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. § 17.565 (DTPA claims must be brought within two years “after the date on which the false, misleading, or deceptiv e act or practice occurred or within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the fa lse, misleading, or deceptive act or practice”). “Ordinarily, 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 & Gas Co. , 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 law. Provident Life & Accident Ins.
Co. v. Knott , 128 S.W.3d 211, 221 (Tex. 2003). The discovery rule is an exception to the general rule of accrual. Cosgrove v. Cade , 468 S.W.3d 32, 36 (Tex. 2015). It is limited to “circumstances where ‘the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.’” Id . (quoting Computer Assocs. Int’l, Inc. v. Altai, Inc. , 918 S.W.2d 453, 456 (Tex. 1996)). The disc overy rule defers accrual of a claim until the injured party discovered, or in the exercise of reasonable diligence should have discovered, the nature of the party’s injury and th e likelihood that the injury–9– was caused by the wrongful acts of another. Childs v. Haussecker , 974 S.W.2d 31, 36, 40 (Tex. 1998). The discove ry of the injury — not the identification of an alleged wrongdoer — initiates the accrual. See id .; Russell v. Ingersoll-Rand Co. , 841 S.W.2d 343, 344 n.3 (Tex. 1992); Richardson v. Bigelow Mgm’t, Inc. , No. 05-06- 00213-CV, 2007 WL 1139775, at *2 (Tex. App. —Dallas Apr. 18, 2007, no pet.). Generally, it is a fact question as to wh en a plaintiff discovers or should have discovered the cause of the injury. See Childs , 974 S.W.2d at 44. But if reasonable minds could not differ about the conclu sion to be drawn from the facts, when the limitations period commences may be determined as a matter of law. Id

. A defendant’s fraudulent concealment of wrongdoing also can defer the running of the limitations period. Etan Indus., Inc. v. Lehmann , 359 S.W.3d 620, 623 (Tex. 2011); Kerlin v. Sauceda, 263 S.W.3d 920, 925 (Tex . 2008). However, “[t]he estoppel effect of fraudulent concealm ent ends when a party learns of facts, conditions, or circumstances which woul d cause a reasonably prudent person to make inquiry, which, if pursued, would lead to discovery of the concealed cause of action.” Etan Indus. , 359 S.W.3d at 623 (quoting Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex. 1983)). In her Third Amended Original Petiti on, Ryan alleges the statutes of limitations for her personal in jury and DTPA causes of action are tolled because “the nature of the injury is inherently undi scoverable, and the ev idence of injury is objectively unverifiable .” She alleges generally that the toxic mold was unknown,–10– a proper mold assessment was not timely done and, when it was, she was not provided with the results and was told that the mold would not harm her. The summary judgment evid ence, however, shows that Ryan discovered the nature of her injury and the likelihoo d that injury was caused by the wrongful conduct of another no later than December 2016. Speci fically, she observed mold in her apartment by late November 2 016. That, combined with her ongoing symptoms, caused her to obtain an air qua lity assessment of the apartment and, by December 5, 2016, she learned that th e apartment contained toxic molds. Accordingly, we conclude as a matter of law that Ryan’s causes of action for negligence, gross negligence, and DTPA vi olations accrued no later than December 5, 2016. Ryan nevertheless contends that TX RCG, because of its fraudulent concealment, should be estopped from asse rting its limitations defense. In her response and sur-reply to TX RCG’s summary judgment motion, she asserts the summary judgment evidence shows that Mac Lamar, as TX RCG’s agent, withheld air quality results and knew Ryan’s apartmen t was unsafe but told her otherwise. Ryan also contends there ar e fact issues precluding summary judgment as to whether (1) TX RCG sold the property on Septem ber 30, 2016; (2) TX RCG provided proper notice to Ryan about its ownership of th e property; and (3) TX RCG retained Mac Lamar and, if so, for how long.–11– The doctrine of fraudulent concealmen t will only estop a defendant from relying on the defense of limitations until the pl aintiff learns of the right of action or should reasonably have discovered it. Valdez v. Hollenbeck , 465 S.W.3d 217, 229– 30 (Tex. 2015); Etan Indus. , 359 S.W.3d at 623. On or about October 3, 2016, Infinity informed Ryan that TX RCG ha d purchased the property; accordingly, she had notice then that TX RCG owned the pr operty for at least some period of her lease term. 7 And, as noted above, Ryan disc overed mold on tile and sheetrock in late November 2016 and an air quality assessment in D ecember 2016 revealed that her apartment contained toxic molds. Thus , even assuming, without deciding, that TX RCG had a duty to disclose to Ryan in formation regarding air quality test results or its ownership of the property, 8 she was apprised of facts, conditions, and circumstances sufficient to know, or cause a reasonable person to make inquiry that would lead to the discovery, of her neglig ence, gross negligence, and DTPA causes of action against TX RCG no later than December 5, 2016.

7 The summary judgment evidence also shows that a special warranty deed reflecting the sale of the property to TX RCG was recorded in Dallas County on October 10, 2016. A special warranty deed reflecting TX RCG’s sale of the property to FUSO w as not recorded until January 31, 2017. Although Ryan complains that she did not know of the subsequent sale to Fuso, he r lack of knowledge as to Fuso’s ownership did not prevent her from timely su ing TX RCG for her claims against it.
8 Ryan cites to Texas Property Code section 92.201 (b)(3) to show that TX RCG had a duty to notify her of its name and address. S ection 92.201 requires a landlord to disclose the name and address of the “holder of record title,” but the landl ord is required to provide the inform ation only if the tenant requests it. T EX

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. C ODE A NN . §§ 92.201(a)(1), (b), (c); 92.202(a)(1) (provi ding that landlord is liable to tenant if landlord does not provide the information after tenant requests it).–12– On these facts, we conclude as a matte r of law that the fraudulent concealment doctrine does not apply to estop TX RCG from asserting its limitations defense. See,

e.g. , Exxon Corp. , 348 S.W.3d at 209 (“Irrespective of the potential effect of fraudulent concealment or the discovery rule on limitations, actual knowledge of alleged injury-causing conduct starts the clock on the limitations period.”); KPMG Peat Marwick v. Harrison Cty. Fin. Corp. , 988 S.W.2d 746, 749–50 (Tex. 1999) (same). Because Ryan did not file her Second Amended Original Petition until November 4, 2019, almost three years afte r her negligence, gr oss negligence, and DTPA causes of action accrued, the causes of action are barred by the applicable two-year statutes of limitations and th e trial court properly granted TX RCG’s traditional summary judgment motion on that basis. Therefore, we overrule appellant’s issue with respect to her cl aims of negligence, gross negligence and DTPA violations. Disposition of Fraud Claims Ryan argues that summary judgment on her fraud claims against TX RCG was improper because the claims were not ad dressed in TX RCG’s summary judgment motion or tried by consent. We agree. Unpleaded claims or defenses that are tried by express or implied consent of the parties are treated as if they had been raised by the pleadings. T EX

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. P. 67; Roark v. Stallworth Oil & Gas, Inc. , 813 S.W.2d 492, 495 (Tex. 1991) (unpleaded issues may be tried by consent in summary judgment proceedings if there–13– is no objection to the lack of pleading). For an issue to be tried by consent, it must be absent from the pleadings and be knowingl y developed as an i ssue in the case by both parties. Case Corp. v. Hi–Class Bu s. Sys. of Am., Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005, pet. denied). TX RCG did not amend its summary judgment motion to address the fraud causes of action asserted in the Third Ame nded Original Petition. In a supplemental brief in support of its summary judgment motion, however, TX RCG asserted that Ryan’s response “went at great length in attempt to provide summary judgment evidence in support of [her] new claims of common law and stat utory fraud” and a “review of the pleadings and competen t summary judgment evidence” reveals the parties have tried the fra ud issues by consent. The record shows that Ryan’s briefing discussed allegati ons of TX RCG’s failure to disclose inform ation in relation to whether the fraudulent concealment doctrine applied to estop TX RCG from asserting a limitations defense. Further, she objected throughout her briefing that su mmary judgment was inappropriate on the fraud claims because TX RCG did not move for judgment on those claims. On this record, we cannot conclude that the pa rties tried the fraud claims by consent. The trial court’s order did not speci fy its grounds for granting summary judgment, but it constituted a final judgment 9 and, therefore, necessarily disposed of

9 On March 25, 2021, the trial court entered or ders grating summary judgment in favor of VVSN, Infinity, Mac Lamar and Fuso. Two of the orders expr essly stated that they were “final judgment[s] that–14– all of Ryan’s claims against TX RCG. Granting summary judgment on a claim not addressed in a summary judgment motion is reversible error unless the omitted claim “is precluded as a matter of law by ot her grounds raised in the case.” G & H Towing Co. v. Magee , 347 S.W.3d 293, 297 (Tex. 2011) (per curiam) (citing T EX

. R. A PP . P. 44.1(a)). TX RCG did not move for summary judgment on Ryan’s fraud claims and nothing in the summary judgment record show s that those claims are precluded as a matter of law. Accordingly, we sustain Ry an’s issue with respect to the fraud claims.
Conclusion We affirm the trial court’s judgment in part and reverse in part. We affirm the judgment to the extent that it grante d summary judgment in TX RCG’s favor on Ryan’s negligence, gross ne gligence, and DTPA causes of action against it. We reverse the judgment to the extent it gran ted summary judgment in TX RCG’s favor on Ryan’s fraud claims and remand the case to the trial court for further proceedings in accordance with this opinion.

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dispose of all parties and all claims and [are] appeal able,” and, therefore, constituted a final judgment. See Bella Palma, LLC v. Young , 601 S.W.3d 799, 801 (Tex. 2020) (per curiam) (an order issued without a conventional trial on the merits is final if it clearly and unequivocally states that it finally disposes of all claims and all parties, “even if review of the record would undermine finality”). Th e trial court then entered its order granting TX RCG’s summary judgment motion on April 22, 2021, within the thirty-day period during which the court retained plenar y power to change its judgment. See T EX

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. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc. , 10 S.W.3d 308, 310 (Tex. 2000); Esty v. Beal Bank S.S.B. , 298 S.W.3d 280, 294 (Tex. App.—Dallas 2009, no pet.). /Crai g Smith / CRAIG SMITH JUSTICE–15– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT SHYLA RYAN, Appellant

No. 05-21-00382-CV V. TX RCG, LLC, Appellee On Appeal from the 162nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-18-13256. Opinion delivered by Justice Smith. Justices Partida-Kipness and Nowell participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE the trial court’s April 22, 2021 Order Granting Defendant TX RCG, LLC’s Motion for Summary Judgment to the extent it grante d summary judgment in favor of appellee TX RCG, LLC on appellant Shyla Ryan’s fraud claims against TX RCG, LLC. In all other respects, the trial court’s Ap ril 22, 2021 Order Gran ting Defendant TX RCG, LLC’s Motion for Summary Judgment is AFFIRMED . We REMAND this cause to the trial court for further pro ceedings consistent with this opinion.
Judgment entered this 29th day of November 2022.