Case Updates for February and March 2011

by Lucy Forbes, The Forbes Firm, PLLC, and Jessica Zavadil, Wright & Close, LLP


Five-year statute of limitations applies to claims of negligence for allowing continuous sexual assault of a child

Stephanie M. v. Coptic Orthodox Patriarchate Diocese of the S. U.S., No. 14-10-00004-CV, 2011 Tex. App. LEXIS 1952 (Tex. App.—Houston [14th Dist.] March 17, 2011, no pet. h.).

In this case of first impression, the court determined that the five-year statute of limitations applicable to personal injuries arising as a result of sexual assault extended to parties whose alleged negligence was a proximate cause of the conduct that caused her injuries and not just to party who physically assaulted the plaintiff.

In August of 2008, Stephanie M. filed a lawsuit against the Coptic Orthodox Patriarchate Diocese of the Southern United States, St. Mark Coptic Orthodox Church, St. Mary Coptic Orthodox Church, and Isaac Sullivan (the priest). She alleged that the priest sexually assaulted her from 1999 to 2001, when she was between the ages of 13 and 15. She further alleged that the Church and Diocese were negligent by failing to have appropriate policies, procedures, and standards in place to prevent priests from sexually abusing children; failing to properly supervise the priest; and allowing the priest to have unsupervised access to Stephanie.

Both the Diocese and Church defendants filed a motion for summary judgment based on limitations under section 16.0045 of the Texas Civil Practice & Remedies Code. These defendants argued that Stephanie’s claims against them sounded only in negligence, and so the two-year statute of limitations applicable to negligence causes of action applied to the claims against them. Stephanie responded that the five-year statute of limitations for filing civil suits in sexual assault cases applied to both the perpetrator and to other defendants potentially liable for the same injuries by their negligent acts that allowed the abuse to occur.

The trial court granted the Diocese and Church defendants’ summary judgment motions, and Stephanie appealed. The court of appeals reviewed section 16.0045’s plain language, which provides that a person must bring suit for personal injury not later than five years after the day the cause of action accrues if the injury arises as a result of conduct that violates section 21.002 of the Penal Code, which addresses the continuous sexual abuse of a young child. The court of appeals concluded that the subsections of 16.0045 show the legislative intent was to provide victims of continuous sexual abuse of young children more time to seek damages for their injuries.

The court of appeals concluded that Stephanie’s personal injury claims against the Diocese and Church defendants arose from the alleged intentional conduct of the priest. And, because her personal injury claims arose from the priest’s alleged sexual assault, the five-year statute of limitations provided by section 16.0045 operated to extend her time to file suit against them. Thus, the Court reversed the trial court’s judgment and remanded the case.


Is expert testimony required to support a submission of a party’s negligence? No, in this case the court found it was not required and the trial court erred in refusing to submit a contributory-negligence question regarding the worker’s negligence.

GSF Energy, LLC v. Padron, No. 01-09-00622-CV, 2011 Tex. App. LEXIS 948 (Tex. App.—Houston [1st Dist.] Feb. 10, 2011, no pet. h.)

Issue: This appeal arose out of the death of Adan Padron, who was killed when debris fell on him while he was cleaning the inside of a processing-plant tank. Padron’s wife and children sued the plant operator and Padron’s employer for negligence and premises liability. The court, addressed, among other things, whether the trial court erred in submitting the jury charge without any question as to Padron’s negligence.

Relevant facts: GSF requested, and the trial court refused, a contributory-negligence submission. GSF argued that the trial court erred in refusing to submit questions in the charge on Padron’s negligence. GSF argued that there was sufficient testimony to raise the question of Padron’s negligence.

Outcome/holding: Appellees argued that the trial court properly refused to submit questions in the charge on Padron’s negligence because there was no expert testimony submitted regarding Padron’s alleged negligence. The court disagreed with the appellee’s position that expert testimony was necessary, and sustained GSF’s issue. The court held that the evidence supported the submission of Padron’s contributory-negligence, and reversed and remanded for a new trial.


How many marriages are too many? More than one!

Lan Ngoc Nguyen v. Dinh Duc Nguyen, No. 01-09-00421-CV (Tex. App.—Houston [1st Dist.] Feb. 24, 2011)

Issue: In this appeal, the Appellant, Lan Ngoc Nguyen (“Lan”) sued Dinh Duc Nguyen (“Dinh”) for divorce. The trial court found that Lan and Dinh never married because of Dinh’s prior marriage to a woman in Vietnam. Lan argued that the evidence was insufficient to support this finding or rebut the presumption that her marriage to Dinh was the valid one.

Relevant facts: Lan met Dinh when she started working in his chiropractic clinic in 1995. They began to date, and Dinh traveled to Vietnam in February 2000 when he allegedly married a woman named Pham. Pham remained in Vietnam, and Dinh returned to the United States. Dinh then proposed to Lan, and they had a traditional Vietnamese wedding ceremony but never received a marriage license from the Harris County Clerk’s license. Lan and Dinh lived together until 2003, separated for approximately two years, and then reconciled in 2005. They then lived together as husband and wife (according to Lan) until 2007 when Lan was kicked out and filed for divorce. The trial court, after considering testimony from Lan, Dinh, and Pham ruled that a Lan and Dinh were never formally married, nor were they informally married “due to the impediment of Dinh’s prior marriage.”

Outcome/holding: The court of appeals held that Dinh did not overcome the presumption that his marriage to Lan—the most recent one—was the valid marriage. The evidence did not show that Dinh and Pham were validly married at the time of the October 2000 ceremony between Dinh and Lan. The evidence also showed that Pham was allegedly married to an Australian man in 2002. The court ultimately reversed and remanded the case for the determination of whether Lan could establish the statutory elements of a valid informal marriage.


Is a party’s statement that “a deal will close” grounds for fraudulent misrepresentation? Not in this case. In this case, the court found that the appellant’s misrepresentation that “the deal would close” was an expression of opinion and not of fact.

Anglo-Dutch Petroleum Int'l, Inc. v. Shore Harbour Capital Mgmt. Corp., No. 01-09-00417-CV, 2011 Tex. App. LEXIS 1761 (Tex. App.—Houston [1st Dist.] Mar. 10, 2011, no pet. h.)

Issue: Whether Anglo-Dutch’s representation to Shore Harbour—when Shore Harbour agreed to invest with Anglo-Dutch—that “the deal would close” was a fraudulent misrepresentation.

Relevant facts: The facts underlying this case span nearly two decades, involve multiple transactions related to the development of a foreign oil and gas field, and relate to numerous lawsuits involving Anglo-Dutch. Anglo-DutchPetroleum International, Inc. was a partner in Anglo-Dutch Kazakhtenge (ADK), which itself was a partner in a joint enterprise to develop an oil and gas field in Kazakhstan, called the Tenge Joint Enterprise. Shore Harbour considered a proposal to contribute capital to Anglo-Dutch to facilitate the buy-out transaction. In making its decision to contribute, Shore Harbour relied on oral conversations between its managing shareholder, Don Chamberlin, and Anglo-Dutch’s president, Scott Van Dyke. Chamberlin contended in the trial court, as he does in this appeal, that Van Dyke represented to him that the deal would close. The deal did not close. Shore Harbour demanded repayment of its $100,000 contribution, but Anglo-Dutch did not refund Shore Harbour’s money. The trial court limited Shore Harbour’s fraud and fraudulent inducement claims at trial to a single alleged misrepresentation by Anglo-Dutch, specifically that “the deal would close.” After a bench trial, the trial court awarded Shore Harbor $100,000 on its fraud claim, plus pre- and post-judgment interest. Anglo-Dutch appealed arguing that this was error because the alleged misrepresentation was not the kind of statement for which a cause of action for fraud may be pursued.

Outcome/holding: The trial court erred by awarding damages. The appellate court held that Anglo-Dutch’s misrepresentation that “the deal would close” was an expression of opinion and not of fact. The alleged statement could not, as a matter of law, be the basis of a cause of action for fraud. The trial court's judgment was reversed, and a take-nothing judgment was rendered in favor of Anglo-Dutch.


Is a recording under Texas Rule of Civil Procedure 656 a recording for purposes of imputing constructive knowledge to defeat a claim of a bona fide purchaser? No.

Noble Mortg. & Invs. LLC v. D&M Vision Invs., LLC, No. 01-09-00987-CV, 2011 Tex. App. LEXIS 1970 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no pet. h.)

Issue: Is the recording of a sale on an execution docket in compliance with Texas Rule of Civil Procedure 656 a “recording” for the purposes of putting subsequent creditors and purchasers on constructive notice under sections 13.001 and 13.002 of the Texas Property Code? No, as an issue of first impression, the court of appeals held that a recording of a sale on an execution docket in compliance with Rule 656 is not a “recording” for purposes of putting subsequent creditors or purchasers on notice.

Relevant facts: Noble challenged here the trial court’s factual finding and legal conclusion that “Noble Mortgage is not a bona fide purchaser or mortgagee as against Danny K. Whitfield, Sr.’s prior claims.” Noble also challenged, among other conclusions, the trial court’s determination that the “filing of the Execution and order of Sale and the Officer’s Return of Execution on the sale of the Property to satisfy the Judgment in the records of the Harris County Clerk satisfied the recording statute of the Texas Property Code.” D&M asserted that Noble “does not specifically challenge the [trial court’s] finding . . . [that] ‘Noble Mortgage did not acquire an interest in the Property in good faith.’” A challenge to the trial court’s finding that Noble did not acquire its interest in the Blodgett Property in good faith, however, is fairly subsumed within Noble’s arguments that the trial court erred in finding it was not a bona fide mortgagee or purchaser, as good faith is a required element of that bona fide status. On October 4, 2007, Noble’s security interest in the Blodgett Property was first recorded in the real property records. While the Financial Holdings Judgment was entered on October 30, 2006, almost a year before, it is undisputed that no one filed an abstract of that judgment in the real property records. It is likewise undisputed that—prior to Whitfield’s December 31, 2007 filing of the “Deed Under Execution” issued by constable transferring Blodgett Property from Banks to Whitfield in the real property records—there there was no mention of the Financial Holdings Judgment or the resulting foreclosure sale to Whitfield anywhere in the real property records.

Outcome/holding: The court of appeals held that the evidence was legally insufficient to support the trial court’s ruling that Noble was not a bona fide purchaser. Noble’s bona fide status was proven as a matter of law. Recording the sale on an execution docket in compliance with Tex. R. Civ. P. 656 was not a “recording” for the purpose of putting subsequent creditors and purchasers on constructive notice under Tex. Prop. Code Ann. §§ 13.001 and 13.002. Further, none of the evidence the purchaser pointed to would have put the mortgagee on inquiry notice that there was an unrecorded money judgment in the County Court at Law records. The court reversed the trial court’s judgment, and rendered judgment that Noble was entitled to possession and title of the property.