author: HOLLIS HORTON, Justice. DAVID GAULTNEY, Justice,

text:
    Lawrence TREUIL, Appellant v. Monica TREUIL, Appellee.
    No. 09-09-00201-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted Oct. 29, 2009.
    Decided April 8, 2010.

      Sonya B. Coffman, The Coffman Law Firm, Beaumont, for appellant.
    Michael R. Walzel, Walzel Law Firm, PLLC, Beaumont, for appellee.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

HOLLIS HORTON, Justice.

This case arises from Lawrence Treuil’s failure to pay Monica Treuil her portion of retirement benefits upon his receipt of them, as required by the parties’ divorce decree. The central issue in this appeal is whether Monica’s claim is barred by the statute of limitations.

I. Background

When Monica and Lawrence divorced in 1982, the trial court awarded Monica a portion of Lawrence’s retirement benefits. On January 1, 2002, approximately twenty years after their divorce, Lawrence took a lump sum distribution upon his retirement. On September 26, 2007, Monica filed a petition to enforce the decree. She asked the court to enforce the decree and to award her a judgment based upon the percentage of the retirement fund the trial court had awarded to her under the parties’ divorce decree. Lawrence answered Monica’s petition for enforcement, and in his answer, he asserted that the statute of limitations barred Monica’s claim. To avoid Lawrence’s limitation defense, Monica amended her petition. In her amended pleading, she asserted that the discovery rule and the doctrine of fraudulent concealment allowed her to avoid Lawrence’s statute of limitations defense. In a nonju-ry proceeding, the trial court found in Monica’s favor and awarded her $89,924.25, together with prejudgment and post-judgment interest.

Assuming the discovery accrual rule applies, we hold that Monica’s discovery of her injury, not the discovery of all of the other elements of her claim, started the clock on the date limitations began to run on her claim. We further hold that there is no evidence in the record before us to support the trial court’s implied findings that less than four years passed between the date Monica discovered her injury and the date she filed suit. Accordingly, we conclude that neither the “discovery rule” nor the doctrine of “fraudulent concealment” allow Monica to avoid Lawrence’s statute of limitations defense.

II. Issues

On appeal, Lawrence raises three issues.

• Issue one contends that Monica’s breach of fiduciary duty and breach of contract claims are barred by the relevant statutes of limitation.
• Issue two asserts that the discovery rule and the doctrine of fraudulent concealment do not rescue Monica’s claims from Lawrence’s limitations defense.
• Issue three argues that the trial court used the wrong date in calculating its award for prejudgment interest.

III. Limitations and Tolling

A. Two or Four Year Limitations Period?

Generally under the Family Code, the filing deadline for suits to enforce a division made by the trial court regarding property not in existence at the time of the original decree is two years from the date the right to the property matures or accrues. Tex. Fam.Code Ann. § 9.003(b) (Vernon 2006). Both in the trial court and on appeal, Lawrence asserts that the two-year period provided in section 9.003(b) of the Family Code bars Monica’s claims.

Monica argues that the Family Code’s two-year limitations period does not apply to her claims. Instead, she asserts that we should look at the substance of her petition and ignore its title: “Petition for Enforcement of Property Division.” According to Monica, examining the substance of the claims in her petition reveals that they involve “independent breach of contract and breach of fiduciary duty tort claims,” each of which is governed by a four-year limitations period. See Tex. Civ. Prac. & Rem.Code Ann. § 16.004(a)(5) (Vernon 2002), § 16.051 (Vernon 2008).

To resolve the parties’ dispute in this case, it is not necessary that we resolve whether the two-year limitations period provided by the Family Code or the four-year limitations period provided by the Civil Practice and Remedies Code apply to Monica’s theories of recovery. We assume without deciding that the four-year limitation period applies.

Absent a basis to defer the running of the clock for purposes of statutes of limitation, limitations generally begin to run when the wrongful act causes an injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998). Monica was injured in this case when Lawrence did not comply with the terms of the divorce decree. The parties’ 1982 divorce decree required Lawrence to remit to Monica “her proportionate share of said funds at her residence immediately upon receipt of said funds, if, as, and when received.” Thus, we conclude that Monica’s injury occurred in January 2002, when Lawrence withdrew all of the funds from the retirement account and upon doing so then failed to immediately remit Monica’s portion to her. See In the Marriage of Reinauer, 946 S.W.2d 853, 860 (Tex.App.-Amarillo 1997, pet. denied).

When an accrual rule defers the date that the limitations period begins running, the issue becomes when did Monica learn that Lawrence had not remitted retirement funds owed to her. See Childs, 974 S.W.2d at 37. Under the facts of this case, resolving when Monica had actual or constructive knowledge of Lawrence’s failure to remit the funds to her also resolves the issue that is necessary to determine the outcome of this appeal.

B. Does Monica’s Knowledge Matter?

“The discovery rule is the legal principle which, when applicable, provides that limitations run from the date the plaintiff discovers or should have discovered, in the exercise of reasonable care and diligence, the nature of the injury.” Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988). In Willis, after noting the difficulty that a layman would have in perceiving an injury caused by one’s own attorney, and given the fiduciary relationship between an attorney and his client, the Texas Supreme Court held that the discovery rule applied to legal malpractice cases. Id. at 645-46.

The Texas Supreme Court has also applied the discovery rule in other types of cases as well, including certain medical malpractice cases, cases involving a defendant’s making a false credit report, and cases involving fraud. On the other hand, the Texas Supreme Court has specifically stated:

[W]e have restricted the discovery rule to exceptional cases to avoid defeating the purposes behind the limitations statutes. See S.V. [v. R.V., 933 S.W.2d 1, 25 (Tex.1996) ] (noting that applications of the discovery rule “should be few and narrowly drawn”); Computer Assocs. [Inti, Inc. v. Altai, Inc., 918 S.W.2d 453, 456, 457 (Tex.1996) ] (noting that discovery rule is “a very limited exception to statutes of limitations” that applies “in certain limited circumstances”).

Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex.2006) (concluding that discovery rule did not apply to a breach of contract claim that involved a failure to procure the agreed upon insurance coverages); see also Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 733, 736-37 (Tex.2001) (rejecting the application of the discovery rule to a claim by oil and gas royalty owners against their lease operator involving alleged underpayment of royalties); Little v. Smith, 943 S.W.2d 414, 422 (Tex.1997) (rejecting discovery rule to claims against an executor, administrator, or heir for failure to seek out or find an adopted child).

Whether the discovery rule applies in the first instance depends in part upon whether the injury is inherently un-discoverable; meaning, depending on the injury, the injury is unlikely to be discovered within the legislatively proscribed limitations period even when the claimant has exercised due diligence. Horwood, 58 S.W.3d at 734-35. When it applies, the discovery rule defers accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the “wrongfully caused injury.” KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 749 (Tex.1999). Nonetheless, the discovery rule is a limited exception to the statutes of limitation and applies only “when the nature of the plaintiffs injury is both inherently undiscoverable and objectively verifiable.” Horwood, 58 S.W.3d at 734.

Because Monica sought to benefit from the discovery rule, she had the burden to prove the nature of her injury— Lawrence’s failure to pay her under the divorce decree — was inherently undiscov-erable. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex.1988). Although the parties dispute whether Monica’s injury was inherently undiscoverable, we need not reach that question. See Hor-wood, 58 S.W.3d at 734-37 (discussing the criteria courts consider in deciding whether something is “inherently undiscovera-ble”). Regardless of whether we classify an asset category, such as retirement accounts, as inherently undiscoverable assets, limitations, nevertheless, begins to run when a party possesses actual or constructive knowledge that an injury has occurred. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex.2003).

Even in cases to which the discovery rule has been applied, the general rule is that “a cause of action accrues and the statute of limitations begins to run when facts come into existence that authorize a party to seek a judicial remedy.” Id. at 221-23 (discussing the accrual of a cause of action in the context of a claimant’s discovery of his insurer’s denial of his disability claim). Thus, in cases applying the discovery accrual rule, limitations begins to run at the point a claimant has actual or constructive knowledge of facts that would put a reasonable person on notice that he has suffered an injury. See Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000) (“But in applying a discovery accrual rule, we have been at pains to explain that discovery of the injury, not discovery of the other elements of a claim, is what starts the clock.”).

Since Monica did not file her suit until September 26, 2007, Monica had the burden of pleading and proving that her claims did not accrue by operation of the discovery rule, or that the limitations period were tolled by operation of the doctrine of fraudulent concealment, through at least September 25, 2003. In other words, if Monica had actual or constructive knowledge that Lawrence received retirement distributions on or before September 25, 2003, Monica would have failed to meet her burden of demonstrating at trial that her claim accrued within the four-year period before she filed her petition on September 26, 2007. See Woods, 769 S.W.2d at 518 (explaining that the party who seeks to benefit from discovery rule bears the burden of pleading and proof); Weaver v. Witt, 561 S.W.2d 792, 793 (Tex.1977) (explaining that fraudulent concealment is an affirmative defense to limitations and therefore, the burden of proof is placed on the claimant).

IV. STANDARD OF REVIEW

Because neither party requested findings of fact or conclusions of law, we must deem that the omitted findings were made by the trial court in a manner that supports the trial court’s judgment. Tex.R. Civ. P. 279 (providing omitted elements of a claim “shall be deemed found by the court in such manner as to support the judgment”); Tri v. J.T.T., 162 S.W.3d 552, 558 (Tex.2005). In this case, the trial court’s judgment recites findings in Monica’s favor on her breach of contract and her breach of fiduciary duty theories. Additionally, in her amended petition, Monica specifically pled that the discovery rule and the doctrine of fraudulent concealment applied to her claim against Lawrence. In light of the date that Lawrence withdrew funds from his account in January 2002, and the date that Monica initially filed her petition in September 2007, the trial court must have applied the discovery rule or the doctrine of fraudulent concealment to defer the date upon which Monica’s claim arose and it must have determined that Monica’s claim accrued on or after September 26, 2003. See Tex.R. Civ. P. 279.

With respect to issues one and two, Lawrence argues that he proved as a matter of law the date that Monica discovered or should have discovered Lawrence’s retirement and his receipt of the retirement funds in issue. Lawrence specifically asserts that “it is uncontroverted anywhere in the record that Amber, the Parties’ truthful daughter, told Monica in 2002 that [Lawrence withdrew his retirement benefits and started a business.]” In addition, Lawrence requests that we render judgment in his favor but did not pray that we remand for a new trial on Monica’s breach of contract and breach of fiduciary duty theories. Therefore, we construe Lawrence’s argument as challenging the legal sufficiency of the evidence to support the trial court’s judgment.

When, as here, a party challenges the legal sufficiency of evidence supporting an adverse finding on an issue in which he did not have the burden of proof, he must demonstrate on appeal that no evidence supports the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex.1983). Such 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 prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.’ ” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).

Evidence is legally sufficient if it “would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). We sustain legal sufficiency challenges “when, among other things, the evidence offered to establish a vital fact does not exceed a scintilla.” Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex.2006). “Evidence does not exceed a scintilla if it is ‘so weak as to do no more than create a mere surmise or suspicion’ that the fact exists.” Id. (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004) (other citations omitted)).

To resolve the issues before us, we review the record to determine if any evidence supports the trial court’s application of either the discovery rule or the doctrine of fraudulent concealment to delay the accrual date of Monica’s claim for a sufficient time-period to allow the trial court to reasonably conclude that Monica timely filed her claim. We also evaluate whether the nature of Monica’s breach of fiduciary duty claim itself provided a basis for the trial court to apply the discovery rule to allow Monica to timely file her claim.

V. Review of the EvideNCe

A. When did Monica possess constructive knowledge of her injury?

Essentially, Monica argues that she did not know that Lawrence had received retirement funds because he failed to notify her upon his retirement that he had withdrawn all of his funds from his retirement account. When the defendant’s failure to notify is the basis of the plaintiffs tolling claim, “a plaintiff knows or should have known of the failure to notify when [the plaintiff] knows or should have known the facts about which [the plaintiff] was to be notified.” HECI Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex.1998).

In this case, the parties disagree about whether Monica produced any evidence to prove that she was not on actual or constructive notice of Lawrence’s withdrawal of funds from his retirement account. Lawrence contends that Monica had sufficient facts to put her on notice of his withdrawal of retirement funds more than four years before she filed her initial petition. Lawrence relies on what he argues is the uncontroverted testimony of the parties’ daughter, Amber. Amber testified that in 2002, she told Monica that Lawrence had retired and that he had opened a business funded “primarily by cash from his retirement.”

According to Monica, she first decided to inquire about the status of Lawrence’s retirement benefits around August 2007, after the birth of a grandchild. Monica testified that at that point, she had no information concerning whether or not the money had been withdrawn from the account. Monica explained that she called Lawrence’s former employer who informed her that no account had been established separately for her, but that a lump-sum check had issued in January 2002 from her ex-husband’s account. Monica argues that this evidence, together with the fact that Amber did not recall how Monica reacted to the information she gave her in 2002, allowed the trial judge to determine that Monica’s discovery of the withdrawal of funds occurred in 2007, a period well within the four-year limitations statutes she asserts applies to her claim.

Importantly, the record in this case reflects that Monica never testified that Amber’s account of the 2002 conversation did not occur, nor did Monica testify that Amber’s recollection about the details of the 2002 conversation were inaccurate.

A finder of fact cannot “ignore undisputed testimony that is clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and could have been readily controverted.” City of Keller, 168 S.W.3d at 820. On this record, Amber’s testimony could have been readily controverted, is otherwise credible, and is free from contradictions and inconsistencies. In direct contrast, Monica, after being recalled as a witness, specifically disputed Lawrence’s testimony concerning his assertion that he told her in late 2001 that he intended to withdraw money from his retirement account and start a business. Thus, the trial court could have reasonably rejected Lawrence’s testimony about the subject-matter of the 2001 conversation that Lawrence claimed he had with Monica. See City of Keller, 168 S.W.3d at 811.

However, as previously stated, Amber’s testimony about her conversation with Monica was not controverted. Monica was not recalled as a witness to rebut Amber’s testimony about her conversation with her, even though the court apparently left the record open for another sixteen months before rendering its decision. Further, based on our review of the record, Amber’s testimony does not indicate that she had any interest in the outcome of the dispute between her parents or that she favored either of the parties. Her testimony about the conversation with Monica is clear and positive, and as Monica was the other party to the 2002 conversation, it is the type of evidence that Monica could have easily controverted.

Amber’s testimony shows that in 2002, Monica had notice of facts from which, upon further reasonable inquiry, Monica would have discovered that Lawrence had withdrawn funds from his retirement account. As explained by City of Keller, an appellate court conducting a legal sufficiency review cannot “ ‘disregard undisputed evidence that allows of only one logical inference.’ ” 168 S.W.3d at 814 (quoting St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519-520 (Tex.2002)). A reasonable person, acting with the information that Amber related about Lawrence’s withdrawal of retirement funds and with the knowledge of the terms of the decree, possessed constructive knowledge that Lawrence had breached the terms of the parties’ divorce decree.

We hold that Monica was on notice of her injury when she learned from Amber that Lawrence had withdrawn retirement funds from his account. Even when the discovery rule applies, the discovery of the injury, not the discovery of all of the elements of a claim, generally starts the clock. See S.V., 933 S.W.2d at 4. Thus, regardless of whether Monica completely appreciated the scope of her injury in 2002, it is the discovery of the injury that matters. See id. While Monica may have actually learned in 2007, from Lawrence’s former employer, that he had withdrawn all of the funds in his account, Monica was on notice of facts that gave her constructive notice of her injury in 2002.

In summary, there is no evidence in this record to support Monica’s claim that she filed suit within four years of the date her cause of action accrued under the discovery accrual rule. See Suberu, 216 S.W.3d at 793; City of Keller, 168 S.W.3d at 827. Amber’s clear, positive, direct, and uncon-tradicted testimony established that Monica had constructive notice of her injury in excess of four years before filing her initial petition. Under the testimony in this record, we conclude as a matter of law that the discovery rule does not operate to delay the accrual of Monica’s claim to avoid Lawrence’s limitations defense.

B. Does Fraudulent Concealment Save Monica’s Claim?

Monica further contends that the doctrine of fraudulent concealment excused her failure to timely file her suit. As with the discovery rule, Monica had the burden to establish that the doctrine applied to her claims. See Weaver, 561 S.W.2d at 793.

Monica does not contend and did not testify that Lawrence falsely represented that he had not retired or that he had not received any funds from his retirement account. Instead, Monica claims Lawrence failed to notify her that he had withdrawn and spent Monica’s portion of the funds awarded to her in the 1982 decree. “[S]ilence may be equivalent to a false representation only when particular circumstances impose a duty on the party to speak and he deliberately remains silent.” Bradford v. Vento, 48 S.W.3d 749, 755 (Tex.2001). Whether such a duty exists is a question of law. Id.

Generally, the law imposes duties of disclosing material facts when they would not be discoverable by the exercise of ordinary care and diligence in certain transactions or when a reasonable investigation would not uncover the facts. See Smith v. Nat’l Resort Communities, Inc., 585 S.W.2d 655, 658 (Tex.1979); Pairett v. Gutierrez, 969 S.W.2d 512, 515 (Tex.App.-Austin 1998, pet. denied). “Ordinary care” is usually defined as the degree of care that would be used by persons of ordinary prudence under the same or similar circumstances. See Dickson v. J. Weingarten, Inc., 498 S.W.2d 388, 391 (Tex.Civ.App.-Houston [14th Dist.] 1973, no writ). “Reasonable inquiry means the amount of examination that is reasonable under the circumstances of the case.” Monroe v. Grider, 884 S.W.2d 811, 817 (Tex.App.-Dallas 1994, writ denied).

Nevertheless, even if we assume that a duty of disclosure regarding the receipt of retirement benefits arose under the terms of the parties’ divorce decree, the tolling effect of Lawrence’s non-disclosure about his receipt of the retirement funds ended when Monica learned that Lawrence did not pay her in a manner consistent with the obligations imposed by the decree. See KPMG Peat Marwick, 988 S.W.2d at 750 (when a defendant fraudulently conceals facts, limitations begin to run on the date the “claimant, using reasonable diligence, discovered or should have discovered the injury”). “Fraudulent concealment will not, however, bar limitations when the plaintiff discovers the wrong or could have discovered it through the exercise of reasonable diligence.” Kerlin v. Sauceda, 263 S.W.3d 920, 925 (Tex.2008).

We have already explained the effect of Amber’s uncontroverted testimony on Monica’s claim that the discovery rule defers the accrual date for her claims. For the same reasons, we conclude that the doctrine of fraudulent concealment does not delay the date that limitations began on Monica’s claim for a sufficient period for her to effectively avoid Lawrence’s limitations defense.

C. Does a Breach of Fiduciary Duty Change the Result ?

The trial court’s judgment recites that the trial court found in Monica’s favor on her breach of fiduciary duty claim. A fiduciary’s conduct can be inherently undiscoverable when the “person to whom a fiduciary duty is owed is either unable to inquire into the fiduciary’s actions or unaware of the need to do so.” S.V., 933 S.W.2d at 8. However, even if “a person to whom a fiduciary duty is owed is relieved of the responsibility of diligent inquiry into the fiduciary’s conduct, so long as that relationship exists, when the fact of misconduct becomes apparent it can no longer be ignored, regardless of the nature of the relationship.” Id.

Thus, even if a fiduciary duty was imposed on Lawrence based upon the language of the divorce decree, an issue we need not decide, Amber’s 2002 conversation with Monica placed her on notice of sufficient facts of Lawrence’s misconduct that a reasonably prudent person, acting in her own interest, could not have ignored Lawrence’s failure to remit funds from the retirement distribution when he received them. See id. At the point Lawrence’s misconduct became apparent, the law imposed a duty on Monica to make a reasonable inquiry into the status of Lawrence’s failure to pay her a portion of the funds he received. See Borderlon v. Peck, 661 S.W.2d 907, 909 (Tex.1983) (“Knowledge of such facts is in law equivalent to knowledge of the cause of action.”).

According to Monica, she waited until 2007 before seeking further information about Lawrence’s withdrawal of retirement funds. Nevertheless, the evidence showed that she was on notice of facts related to Lawrence’s failure to remit to her a share of the funds he withdrew from his retirement account in 2002, even if she may not have known that he had withdrawn all of the funds at that time.

We conclude that Lawrence’s misconduct was apparent in 2002. On this record, we hold that there is no evidence to support the trial court’s determination that the four-year limitations period did not bar Monica’s claim. See Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(5) (providing four-year limitations period for breach of fiduciary duty claims).

VI. Conclusion

We hold that Monica failed to produce evidence, even a scintilla, to carry her burden to show that the discovery rule or the doctrine of fraudulent concealment tolled her filing period for a sufficient period to make her suit, filed in September 2007, timely under the applicable limitations statutes. We further hold that Monica’s claim is barred by the four-year limitations period provided for breach of fiduciary duty claims. Therefore, we sustain Lawrence’s first two issues. “The fact that a meritorious claim might thereby be rendered nonassertible is an unfortunate, occasional by-product of the operation of limitations.” Robinson v. Weaver, 550 S.W.2d 18, 20 (Tex.1977). The trial court’s judgment is reversed and we render judgment that Monica recovers nothing.

REVERSED AND RENDERED.

DAVID GAULTNEY, Justice,

dissenting.

The divorce judgment ordered Lawrence to pay Monica her share of the retirement funds. The judgment also made Lawrence a trustee of her funds. The trustee designation provided Monica additional protection in the event Lawrence ignored or simply forgot the order to pay her share. When he received her share, Lawrence held Monica’s property as trustee under the terms of the divorce judgment. The discovery rule applies when a trustee asserts that a claim against him is barred by limitations. Courseview, Inc. v. Phillips Petroleum Co., 158 Tex. 397, 312 S.W.2d 197, 204-05 (1957).

I respectfully disagree with the majority opinion on three grounds: the proper application of the legal sufficiency standard of review to the record in this case; the nature of a trust; and the proper application of the discovery rule to a trustee. Because Monica’s claim is not barred by the four year statute of limitations, we should affirm the trial court’s judgment.

The Legal Sufficiency Standard Of Review

We are governed in our review of this case by the specific challenge Lawrence makes on appeal. The majority construes Lawrence’s argument as challenging the legal insufficiency of the evidence. I agree that is the substance of his challenge. See City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005).

Monica testified she discovered in 2007 that her money had been withdrawn in a lump sum. She asked Exxon-Mobil if an account had been established in her name, and was told “no.” The record reflects she filed this lawsuit in 2007 within the four year statute of limitations. See Peek v. Berry, 143 Tex. 294, 184 S.W.2d 272, 275 (1944) (four year statute of limitations).

Lawrence testified differently and stated he informed Monica he was going to retire and use his retirement money to open a business. Amber, the daughter, testified that in a conversation with Amber and her husband, Monica was told Lawrence retired in 2002. Amber did not recall how or if Monica reacted at the time.

As the fact-finder in this bench trial, the trial judge was responsible for assessing the credibility of the witnesses and for resolving conflicts in the evidence. City of Keller, 168 S.W.3d at 819-20. As an appellate court, we must presume that, in a case in which a fact-finder has conflicting evidence to resolve, the fact-finder resolved all conflicts in favor of the prevailing party. As a reviewing court, we are not free to resolve the conflicts in testimony differently from the fact-finder. We disregard the conflicting evidence in reviewing the legal sufficiency of the evidence. See id. at 821. As trier of fact, the trial judge may “disregard even un-contradicted and unimpeached testimony from disinterested witnesses.” Id. at 820 (footnote omitted). To the extent Monica’s testimony conflicts with Amber’s or Lawrence’s, the trial court accepted the testimony of Monica and rejected theirs. So must this Court under the applicable standard of review. The evidence is legally sufficient to support the trial court’s judgment.

The NatuRE of a Trust

Even if this Court had the ability to decide Lawrence and Amber testified truthfully and Monica did not, that determination would not change the result in this case, because of the nature of a trust and the duty of full disclosure. Lawrence took control of Monica’s property in 2002. His role then was as trustee of the money; any money he did not immediately pay Monica was held in trust for her. A trustee has a duty to administer the trust solely in the interest of the beneficiary for as long as the trustee remains trustee. See Ames v. Ames, 757 S.W.2d 468, 476 (TexApp.-Beaumont 1988), ajfd as modified, 776 S.W.2d 154 (Tex.1989). Lawrence did not notify Monica of a repudiation of the trust. Even if the trial court had to accept his testimony as true — an assumption the majority rejects, as do I— Lawrence’s statement to Monica that he intended to use his retirement funds to start a business did not tell her what he intended to do with her money. A trustee must fully disclose all material facts known to him that might affect the beneficiary’s rights. See Montgomery v. Kennedy, 669 S.W.2d 309, 318 (Tex.1984). Lawrence may have intended to leave Monica’s funds in the account. Generally then, the termination of the trustee relationship required a mutual abandonment or agreement between the parties, also with full disclosure. See generally Omohundro v. Matthews, 317 S.W.2d 771, 777 (Tex.Civ.App.-Beaumont 1958), aff'd, 161 Tex. 367, 341 S.W.2d 401 (1960). Without a termination of the trust relationship, Lawrence continued as trustee until he lost all of her money. Lawrence testified the money was not exhausted from the account in which he initially deposited the funds until 2003. By that year, he had invested all Monica’s funds in his business. The business in which he invested the funds was not closed until 2004, after he moved to the Virgin Islands. When a trustee commingles trust property with his own, as happened here, the commingled funds become the property of the trust, unless the trustee is able to distinguish and separate that which is his own. See generally Eaton v. Husted, 141 Tex. 349, 172 S.W.2d 493, 497-98 (1943). Essentially, trust funds can be traced and recovered. See id. Until 2004, Lawrence held Monica’s property. This lawsuit was filed in 2007, -within four years of the date all of her property held in trust finally disappeared. Therefore, even if the trial court was bound by the testimony of Lawrence or Amber, a suggestion I do not accept, this lawsuit would not be barred by limitations, because of the nature of a trust.

The Application Of The Discovery Rule

Finally, the discovery rule requires a repudiation of the trust by the trustee. See Collins v. Griffith, 125 S.W.2d 419, 425 (Tex.Civ.App.-Amarillo 1938, writ ref'd). A trustee owes a duty of full disclosure to the beneficiary. Montgomery, 669 S.W.2d at 313-14. Because of the trustee’s duty to fully disclose, the discovery rule is applied differently in a claim against a trustee. A beneficiary has no duty to investigate for wrong-doing by the trustee until she has actual notice of sufficient facts to cause further inquiry. See id,.; Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 394 (1945). The actual notice requirement is applied strictly because the trustee is not allowed to benefit from his failure to fully disclose. It matters not that the trustee and beneficiary have a strained relationship. See Montgomery, 669 S.W.2d at 313. It matters not that the trustee retains or exercises control over the beneficiary’s property, because that is generally what a trustee does. Regardless of the circumstances, the law provides that the beneficiary is entitled to rely on a trustee to fully disclose all relevant information. See generally Johnson v. Peckham, 132 Tex. 148, 120 S.W.2d 786, 788 (1938) (fiduciary and absolute duty to disclose). Because of the legal responsibilities the law imposes on a trustee, the beneficiary is entitled to presume that a trustee holding trust property does so as a trustee, “and the trust relation continues unless plainly repudiated.... ” Gibbons v. Bell, 1876 WL 9218, at *4, 45 Tex. 417 (1876); see also Collins, 125 S.W.2d at 425.

Under the common law, the statute of limitations generally does not begin to run on a claim against the trustee until the trustee repudiates the trust and notifies the beneficiary. See Langford v. Shamburger, 417 S.W.2d 438, 445 (Tex.Civ.App.-Fort Worth 1967, writ ref'd n.r.e.), disapproved of on other grounds by Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 249-50 (Tex.2002); Collins, 125 S.W.2d at 425-26. The repudiation must be “plain, strong, and unequivocal ... open[,]” and “to be sufficient and effective must have been brought home to the beneficiary.” Langford, 417 S.W.2d at 445.

The date a beneficiary learns the trustee has taken possession of trust property is not the date a claim against the trustee accrues, nor is it the date limitations begins to run. Only in exceptional circumstances should limitations run in favor of a silent trustee. Based on the evidence presented, the trial court could reasonably conclude Lawrence never gave “plain, strong and unequivocal” notice to Monica that he was repudiating the trust. See id. The statute of limitations does not bar her claim.

Based on the applicable standard of review, we should affirm the trial court’s judgment. Because the majority does not, I respectfully dissent.

      . Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976) (case involving the filing of a false credit report); Hays v. Hall, 488 S.W.2d 412, 414 (Tex.1972) (case involving negligent vasectomy operation); Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex.1967) (case involving negligence of a surgeon leaving a foreign object in a patient's body); Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 440 (1940) (case involving fraud), superceded on other grounds Williams v. Khalaf, 802 S.W.2d 651, 657 (Tex.1990) (noting that two-year limitations period applied in Quinn had been superceded by a statute in which the Legislature made a four-year limitations period applicable to claims alleging fraud).

      . As it is not necessary that we do so, we expressly do not resolve whether the two or four-year limitations period applies to the parties' dispute. We assume without deciding that the four-year statute applies to Monica's claims. However, we note that there was no written contract or oral agreement between the parties regarding the requirement in the divorce decree that obligated Lawrence to remit a portion of his retirement funds to Monica when he received them. Further, we expressly do not consider whether a court can or should carve exceptions to the statutory limitations period established by the Legislature in the Family Code for claims involving property previously awarded in a divorce decree. Compare Morales v. Morales, 195 S.W.3d 188, 191-92 (Tex.App.-San Antonio 2006, pet. denied), with Jenkins v. Jenkins, 991 S.W.2d 440, 445-46 & n. 6 (Tex.App.-Fort Worth 1999, pet. denied). While noting our reservations about these issues, resolving them is not required to resolve the issues presented in this appeal.

      . In view of our resolution of issues one and two, we need not consider issue three.


source: Caselaw Access Project

author: LEE ANN DAUPHINOT, Justice.

license: Public Domain

text:
    ESTATE OF Jason Randall FREDERICK, Deceased.
    No. 2-09-133-CV.
    Court of Appeals of Texas, Fort Worth.
    April 8, 2010.
    Rehearing Overruled May 6, 2010.

      Jeff Kobs, Kobs, Haney & Hundley, L.L.P., Robert Haslam, Haslam & Gallagher, Fort Worth, TX, for Appellant.
    Robert M. Brownrigg, Fort Worth, TX, for Appellee.
    Ross P. Griffith, Griffith, Jay & Michel, L.L.P., Fort Worth, TX, Attorney Ad Li-tem.
    Panel: LIVINGSTON, DAUPHINOT, and McCOY, JJ.
   OPINION

LEE ANN DAUPHINOT, Justice.

After a jury trial in a probate proceeding, the trial court assessed costs and attorney ad litem fees against Appellant Anieca Frederick, and she now appeals from that assessment. In one issue, she argues that the trial court abused its discretion by taxing the ad litem fees as costs against her rather than against her son’s estate. Because we hold that the trial court did not abuse its discretion, we affirm.

Anieca’s son Jason Randall Frederick died on March 13, 2008. He was survived by A.F., his minor child. Samantha Petty, AF.’s mother, filed a petition in probate court for declaratory relief to have her status as surviving spouse established, to determine heirship, and to be appointed as administratrix of Jason’s estate. Anieca subsequently filed her application for appointment of administratrix, contested Samantha’s amended application for appointment of administratrix, and requested the court to determine heirship.

On April 1, 2008, the trial court sua sponte appointed Ross Griffith as attorney ad litem for Jason’s “unknown heirs, missing heirs, nonresident heirs, unborn or unascertained heirs, heirs with legal disability, minor heirs and/or incapacitated heirs.” On June 23, 2008, Samantha filed a motion asking the court to require Anie-ca to give security for costs, arguing that Anieea’s contest would greatly increase the ad litem fees incurred in the case. The trial court entered an order requiring both Anieca and Samantha to post security of $5,000.

In October 2008, the trial court entered an agreed partial judgment declaring that A.F. was Jason’s only child and his “statutory heir at law.” Thus, the only contested issues remaining were whether Samantha was Jason’s common-law wife and whether Samantha or Anieca should be appointed administratrix of Jason’s estate.

Griffith subsequently filed a motion for additional security for costs. The court granted the motion, requiring both Anieca and Samantha to post an additional $5,000.

Anieca filed a motion for summary judgment. Griffith requested that the court grant the motion and declare that there was no common-law marriage between Jason and Samantha. The court denied the motion.

The matter proceeded to trial, at which the jury found that Samantha was married to Jason at the time of his death. In accordance with this verdict, the trial court declared Samantha to be the surviving spouse and Jason’s lawful heir. The court also appointed Samantha as administratrix of Jason’s estate.

Following the jury trial, Griffith filed an application for payment of fees and expenses, requesting $217.56 in expenses and $28,946.50 in fees. The court entered an order finding that Griffith was appointed to serve as attorney ad litem; that the services Griffith rendered on A.F.’s behalf were necessary; and that Griffith’s expenses and fees in the total amount of $25,000 were reasonable and just. Finding Samantha to be the prevailing party, the court taxed these costs against Anieca under rule 131 of the rules of civil procedure. Anieca then filed this appeal.

Anieca does not appeal the part of the judgment finding Samantha to be Jason’s surviving spouse. In her sole issue, Anieca contends that the trial court abused its discretion by taxing costs against her. She argues that under probate code section 34A and Ajudani v. Walker, an opinion from the First Court of Appeals, the trial court should have assessed Griffith’s fees against Jason’s estate.

The provisions regulating costs in ordinary civil cases apply in probate proceedings except for matters for which the probate code has an express provision. Probate code section 34A provides that in a probate proceeding, the probate judge may appoint an attorney ad litem to represent a person having a legal disability. This section further provides that “[e]ach attorney ad litem appointed under this section is entitled to reasonable compensation for services in the amount set by the court and to be taxed as costs in the proceeding.” The statute does not specify against whom these costs must be assessed. In a civil case, the assessment of costs is within the trial court’s discretion.

Anieca argues that the legislative history of section 34A demonstrates that the legislature intended for these costs to be assessed against the estate. The legislature adopted section 34A in 1983. The “digest” section of a bill analysis from the House Study Group (now the House Research Organization) states that an attorney or guardian appointed under the statute “would be entitled to court-determined fees, which would be charged against the estate.” The Ajudani court relied on this language in reaching its holding that costs assessed under section 34A should be assessed against the estate. An analysis of the same bill by the committee on judicial affairs contains no language suggesting against whom the court-determined fees should be assessed. We note that the probate code has been amended a number of times since the legislature enacted section 34A, and the legislature has never added language expressly providing that costs under section 34A should be assessed against the estate, even though it used such language in the section of the code relating to guardianship matters.

We may consider legislative history when construing a statute, even if the statute is not ambiguous on its face. But we must presume that when the legislature excludes words from a statute, it does so purposely; we may insert additional words only when necessary to give effect to clear legislative intent. When a statute is clear and unambiguous, we may not use legislative history to alter or disregard its express terms or contradict its plain meaning. That is, when a statute’s text is clear, the text is determinative of legislative intent.

Section 34A omits any express provision specifying which party or parties may be ordered to pay attorney ad litem fees. Section 12(a) states that provisions regulating costs in ordinary civil cases apply when the probate code does not otherwise expressly provide. Under the rules of civil procedure, costs are generally assessed in favor of the successful party and against the non-prevailing party, but the court may assess costs differently for good cause stated on the record. Because section 34A clearly omits any express provision regulating costs for appointments under that section, the language of section 34A shows the legislature’s intent that provisions regulating costs in ordinary civil cases apply to the assessment of attorney ad litem fees as costs under that section. Perhaps the legislature left the assessment of costs to the trial court’s discretion because it contemplated the possibility that parties arguing over an estate could unnecessarily prolong litigation, thereby increasing an ad litem’s fees and depleting the estate. Regardless of whatever reason we could assign to the legislature for drafting the text as it did, because the text of section 34A is clear and determinative, we respectfully disagree with the holding of our sister court and decline Anieca’s request that we use legislative history to alter section 34A. We hold that the trial court did not abuse its discretion by applying the provisions regulating costs that govern ordinary civil proceedings and assessing costs against Anieca. We overrule Anieca’s sole issue.

Having overruled Anieca’s sole issue, we affirm the judgment of the trial court.

      . Tex. Prob.Code Ann. § 34A (Vernon 2003).

      . 232 S.W.3d 219, 224 (Tex.App.-Houston [1st Dist.] 2007, no pet.).

      . Tex. Prob.Code Ann. § 12(a) (Vernon 2003).

        .Id. § 34A; see also Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.2005) (noting that "minors ... are considered to be under a legal disability”).

      . Tex. Prob.Code Ann. § 34A.

      . See Tex.R. Civ. P. 131 ("The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided”); Tex.R. Civ. P. 141 ("The court may, for good cause, to be stated on the record, adjudge the costs otherwise than as provided by law or these rules.”); Crescendo Invs., Inc. v. Brice, 61 S.W.3d 465, 480 (Tex. App.-San Antonio 2001, pet. denied) (“The assessment of costs will be reversed on appeal only if the trial court abused its discretion.”); see also Suiter v. Woodard, 635 S.W.2d 639, 641 (Tex.App.-Waco 1982, writ ref'd n.r.e.) ("Normally the taxing of an attorney ad litem fee for minor parties is in the discretion of the trial court.”); Lofton v. Norman, 508 S.W.2d 915, 922 (Tex.Civ.App.-Corpus Christi 1974, writ ref'd n.r.e.) ("Allowance of an attorney fee for an attorney ad litem, the amount of the fee, and against whom the fee shall be taxed are matters within the discretion of the trial court.”).

      . This independent administrative department of the Texas House of Representatives provides objective information to House members about legislation and issues that are before the Texas Legislature. See House Research Organization, About the HRO, http:// www.hro.house.state.tx.us/frame6.htm (last visited Apr. 8, 2010); Legislative Reference Library of Texas, Research Tools, http://www. lrl.state.tx.us/research/billsearch/help.cfm (last visited Apr. 8, 2010).

      . House Study Group, Bill Analysis, Tex. H.B. 266, 68th Leg., R.S. (1983).

      . See Ajudani, 232 S.W.3d at 224.

      . House Comm, on Judicial Affairs, Bill Analysis, Tex. H.B. 266, 68th Leg., R.S. (1983).

      . Tex. Prob.Code Ann. § 669 (Vernon 2003) (providing that in a guardianship matter, the cost of the guardian ad litem shall be paid out of the guardianship estate if the estate is sufficient to pay the costs).

      . Tex. Gov’t Code Ann. § 311.023 (Vernon 2005).

      . In re M.N., 262 S.W.3d 799, 802 (Tex.2008); Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex.1981).

      . Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284 (Tex.1999) (stating that legislative history “cannot be used to alter or disregard the express terms of a code provision when its meaning is clear from the code when considered in its entirety, unless there is an error such as a typographical one’’); N.P. v. Methodist Hosp., 190 S.W.3d 217, 222 (Tex.App.-Houston [1st Dist.] 2006, pet. denied) (stating that courts may not use legislative history to contradict the plain meaning of a statute).

      . Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex.2009) (op. on reh’g).

      . Tex. Prob.Code Ann. § 12(a).

      . Tex.R. Civ. P. 131, 141; see also In re Estate of Russell,-S.W.3d-,-(Tex.App.-El Paso 2009, no pet.) (affirming trial court’s award, under rule 131, of costs against executor individually, rather than against the estate, in favor of party who successfully contested a will); Ray v. McFarland, 91 S.W.3d 728, 730-31 (Tex.App.-Fort Worth 2003, no pet.) (reversing trial court’s failure to award costs under rule 131 to the successful party in a will contest); but see Ex’rs of Tartt’s Estate v. Harpold, 531 S.W.2d 696, 698 (Tex.Civ.App.-Houston [14th Dist.] 1976, writ ref’d n.r.e.) (stating that fee for attorney ad litem representing the decedent’s unknown heirs “may be ordered paid out of the assets of the estate as costs”).

      . See Entergy Gulf States, 282 S.W.3d at 437; In re M.N., 262 S.W.3d at 802; Cameron, 618 S.W.2d at 540.

      . See Tex.R. Civ. P. 131, 141; see also Roberts v. Williamson, 111 S.W.3d 113, 124 (Tex.2003) (holding that trial court had failed to show good cause on the record to assess guardian ad litem fees against the successful party); Gueira v. Perez & Assocs., 885 S.W.2d 531, 533-34 (Tex.App.-El Paso 1994, no writ) (holding that the trial court abused its discretion by assessing as costs against the successful party one-half of the fee of court-appointed surveyor without stating good cause for doing so); Dover Elevator Co. v. Servellon, 876 S.W.2d 166, 169 (Tex.App.-Dallas 1993, no pet.) (stating that the trial court was not authorized to assess guardian ad litem fees, which are taxed as costs, against the prevailing party absent good cause shown on the record).


author: Justice MORRIS.

text:
    Warren R. FAGADAU, M.D., Appellant, v. Thomas H. WENKSTERN, Appellee.
    No. 05-09-00861-CV.
    Court of Appeals of Texas, Dallas.
    April 14, 2010.

      Brandon Kulwicki, Stewart Stimmel LLP, Dallas, TX, for Appellant.
    Thomas H. Wenkstern, Edwards & De La Cerda, L.L.C., Dallas TX, pro se.
    Before Justices MORRIS, FRANCIS, and FILLMORE.
   OPINION

Opinion By

Justice MORRIS.

This interlocutory appeal follows the trial court’s refusal to dismiss Thomas H. Wenkstern’s health care liability claims against Warren R. Fagadau, M.D. Dr. Fa-gadau raises two issues on appeal focusing on the sufficiency of Wenkstern’s expert reports. He contends the trial court erred when it denied his first motion to dismiss, which challenged Wenkstern’s initial expert report, and also erred when it granted Wenkstern a thirty-day extension to file an amended report. He further contends the trial court abused its discretion by denying his second motion to dismiss after Wenkstern filed an amended report. Concluding Dr. Fagadau’s arguments are without merit, we affirm the trial court’s order.

I.

On August 23, 2006, Wenkstern was examined by Dr. Fagadau, an opthalmologist. At that time, Wenkstern complained of “floaters” and grainy vision in his right eye. Dr. Fagadau diagnosed Wenkstern with a posterior vitreous detachment but noted the retina was not detached. According to Wenkstern, Dr. Fagadau told him the floaters would disappear over time or he would become accustomed to them. Wenkstern also contends that when he asked Dr. Fagadau if he should see a retinologist, Dr. Fagadau responded “no.” Dr. Fagadau recommended a follow-up appointment be scheduled within six months to a year and told Wenkstern to call if he experienced any significant change in his vision.

On September 25, Wenkstern called Dr. Fagadau’s office because he experienced a surge of floaters. Wenkstern was referred to Dr. Marcus Allen, who diagnosed Wenkstern with a detached retina in his right eye and recommended treatment for Wenkstern’s left eye to address areas of weakness. Wenkstern underwent surgery on his right eye on September 29. At the same time, he was given laser treatment for his left eye. Although the left eye responded well to the treatment, the right eye required further surgeries and treatments. According to Wenkstern, his right eye is now significantly impaired, resulting in problems such as double vision and lower visual acuity.

Wenkstern brought this suit against Dr. Fagadau contending he was negligent in (1) failing to examine his left eye, (2) failing to schedule a follow-up appointment in a reasonably prudent manner under the circumstances, and (3) failing to timely refer him to a retinologist. Pursuant to section 74.351 of the Texas Civil Practice and Remedies Code, Wenkstern filed an expert report in support of his claims. The report was prepared by Dr. Daniel Goldman, an opthalmologist specializing in diseases and surgery of the retina. Dr. Goldman opined that Wenkstern “should have been seen at least within the first two weeks after the exam of 8/23/06” and “scheduling the patient for a six-month to one year follow-up was below the standard of care.” Dr. Goldman further stated that “[b]eeause [Wenkstern] was not reexamined and treated soon enough, he developed Retinal Detachment requiring several surgeries.” Dr. Goldman concluded that “if the tears were noted sooner, they could have been treated with laser and all the subsequent Retinal Detachment surgeries avoided.”

Dr. Fagadau objected to the report and moved to dismiss Wenkstern’s claims under section 74.351(b) of the civil practice and remedies code. He argued the report was insufficient to satisfy the requirements of section 74.351 because it failed to address all of the acts of negligence asserted in Wenkstern’s petition and Dr. Goldman’s opinion on causation was wholly concluso-ry. Following a hearing, the trial court concluded the report was insufficient under section 74.351. The trial court, however, denied the motion to dismiss. It then granted Wenkstern a thirty-day extension to cure the deficiencies in the report pursuant to section 74.351(c).

Within the thirty days, Wenkstern filed an amended report by Dr. Goldman. Dr. Fagadau again objected to the report and moved to dismiss Wenkstern’s claims for failure to serve a sufficient expert report under section 74.351. This time, the trial court denied Dr. Fagadau’s motion in its entirety. Dr. Fagadau brought this interlocutory appeal pursuant to section 51.014(a)(9) of the civil practice and remedies code.

II.

In challenging the trial court’s decision to deny his first motion to dismiss, Dr. Fagadau contends that Wenkstern’s original expert report failed to address two of the three acts of negligence asserted in the pleadings. Specifically, Dr. Fagadau contends the original report did not address Wenkstern’s allegations that he was negligent for failing to examine Wenkstern’s left eye and failing to refer him to a reti-nologist. Because these alleged acts of negligence were not discussed in the original report, Dr. Fagadau contends Wenkst-ern failed to timely serve a report addressing the health care liability claims based on those acts and the trial court was required to grant the motion to dismiss those claims. See Tex. Civ. PRAC. & Rem.Code ÁNN. § 74.351(b) (Vernon Supp.2009).

All health care liability claims are subject to the expert report requirements found in section 74.351 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prao. & Rem.Code Ann. § 74.351 (Vernon Supp.2009). Section 74.351(b) states that, if an expert report has not been served within 120 days after the original petition was filed, the trial court, on motion of the affected health care provider or physician, must dismiss the subject claims with prejudice and award reasonable attorney’s fees and costs. See id. § 74.351(b). If, however, an expert report is timely served but found deficient, section 74.351(c) allows the trial court discretion to grant one thirty-day extension to cure the deficiency. Id. § 74.351(c). No appeal may be taken from a trial court’s order granting an extension under section 74.351(c). See id. § 51.014(9).

In Ogletree v. Matthews, the Texas Supreme Court held that where an existing expert report has been found deficient, the trial court’s decision to deny the motion to dismiss and its decision to grant an extension are inseparable. See Ogletree v. Matthews, 262 S.W.3d 316, 321 (Tex.2007). Accordingly, in cases where “a report that implicated [the health care provider’s] conduct was served and the trial court granted an extension,” appellate courts are without jurisdiction to reach the merits of the motion to dismiss. Id.

Two years later, in Badiga v. Lopez, the supreme court addressed the issue of whether Texas courts of appeals have jurisdiction to address the merits of a motion to dismiss in cases where no expert report was served "within the time permitted but the trial court denied the motion and granted an extension under section 74.351(c). See Badiga v. Lopez, 274 S.W.3d 681 (Tex.2009). Under those circumstances, the court concluded a defendant health care provider could pursue an interlocutory appeal of the denial of the motion to dismiss. See id. at 685. The court stressed that “a deficient report differs from an absent report,” and, in the case of the latter, the trial court has no discretion to grant an extension. Id. at 684.

Dr. Fagadau contends the original expert report made the subject of his first motion to dismiss fits into the category of reports that falls between those that are merely deficient and those that are physically absent. This “third category” was first recognized in the concurring opinion in Ogletree. See Ogletree, 262 S.W.3d at 322-23 (Willett, J., concurring). In his concurrence, Justice Willett urged the court to recognize that some expert reports filed by plaintiffs may be so deficient that they constitute no report at all and should not be treated as an expert report for the purposes of allowing an extension under section 74.351(c). Id. at 324. According to Justice Willet, such a report is “so utterly lacking that, no matter how charitably viewed, it simply cannot be deemed an ‘expert report’ at all, even a deficient one.” Id. at 323. Dr. Fagadau asks us to adopt Justice Willett’s reasoning and conclude that, because the report at issue here failed to address two of the acts of negligence asserted in Wenkstern’s pleadings, the report, though technically existing, was “no report” with respect to those allegations. Dr. Fagadau argues that, because the report was effectively absent with respect to those allegations, the trial court had no discretion to grant an extension and was required to grant his first motion to dismiss the claims based on the acts not addressed.

Since Ogletree, the supreme court has not directly addressed whether a report may be so deficient that it cannot be considered a report for purposes of denying a motion to dismiss and granting an extension under section 74.351(c). See In re Watkins, 279 S.W.3d 633, 636 (Tex.2009) (Willett, J., concurring); Gardner v. U.S. Imaging, Inc., 274 S.W.3d 669, 671 (Tex.2008). Several of our sister courts of appeals have addressed the issue, however, resulting in a split of authority. See e.g. Morris v. Umberson, 312 S.W.3d 763 (Tex.App.-Houston [1st Dist.] 2009, pet. denied) (holding no jurisdiction to address merits of motion to dismiss where appellees timely served report implicating defendant physician and trial court granted extension to cure deficiencies); Benson v. Vernon, 303 S.W.3d 755 (Tex.App.-Waco 2009, no pet.) (report that did not address one of plaintiffs injuries was “no report at all” as to that claim requiring dismissal); Scoresby v. Santillan, 287 S.W.3d 319 (Tex.App.-Fort Worth 2009, pet. filed) (holding supreme court precedent limits the universe of possible reports to either deficient or absent).

In Cook v. Spears, this Court declined to recognize the third category of reports discussed by Justice Willett in Ogletree. See Cook v. Spears, 275 S.W.3d 577, 581 (Tex.App.-Dallas 2008, no pet.). Our decision is supported by the supreme court’s later holding in Badiga. In Badiga, the court stated that the purpose of the statutory ban on interlocutory appeals from orders granting extensions to file an expert report was “to allow plaintiffs the opportunity to cure defects in existing reports.” See Badiga, 274 S.W.3d at 684 (emphasis in original). The court noted that if a defendant could appeal the denial of a motion to dismiss when an extension to file a new report has been granted, “the court of appeals would be reviewing the report’s sufficiency while its deficiencies were presumably being cured in the trial court.” Id. This policy consideration applies to all cases in which a report implicating a physician’s conduct has been served regardless of the extent of the report’s alleged deficiencies. As in Ogletree, the supreme court’s rationale appears to contemplate that the timely service of any report implicating the subject physician’s conduct vests the trial court with discretion to deny a motion to dismiss the claims made against the physician and grant an extension to cure deficiencies under section 74.351(c). In such circumstances, an appellate court lacks jurisdiction to consider the merits of such an order under section 51.014(9). See Ogletree, 262 S.W.3d at 321. Given this precedent, and the fact that Wenkstern timely filed an expert report implicating Dr. Fagadau’s conduct, we conclude we have no jurisdiction to address the propriety of the trial court’s order denying Dr. Fagadau’s first motion to dismiss and granting Wenkstern an extension to file an amended expert report.

III.

Dr. Fagadau next challenges the trial court’s denial of his second motion to dismiss. He argues that, although Dr. Goldman’s amended report addresses all of the alleged acts of negligence, it does not meet the statutory requirements for an expert report. Therefore, according to Dr. Fa-gadau, the trial court was required to dismiss Wenkstern’s claims against him.

A trial court must dismiss a plaintiffs claims for failure to file a sufficient expert report only if the report does not represent a good-faith effort to comply with the statutory definition of an expert report. See Tex. Civ. Prao. & Rem.Code Ann. § 74.351(0; see also, Am. Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex.2001). The statutory definition requires the expert to provide a “fair summary” of the expert’s opinions regarding the applicable standards of care, the manner in which the care rendered failed to meet those standards, and the causal relationship between that failure and the injury, harm, or damages claimed. See Tex. Civ. Prac. & Rem.Code Ann. § 74.351(r)(6). The report is meant to serve two purposes: (1) to inform the defendant of the specific conduct the claimant is questioning and (2) to provide a basis for the trial court to conclude the claims have merit. See Leland v. Brandal, 257 S.W.3d 204, 206-07 (Tex.2008). The report does not need to contain all of the plaintiffs proof. See Cook, 275 S.W.3d at 585. Nor does it have to meet the same requirements as evidence submitted in a summary judgment proceeding. Id. But it must do more than merely state the expert’s conclusions about the standard of care, breach, and causation. The expert must explain the basis of his statements and link his conclusions to the facts. Id.

Dr. Fagadau contends that Dr. Goldman’s amended report is insufficient to meet the requirements of section 74.351 because it is factually unsupported and the opinions expressed on the standard of care and causation are conclusory. A “fair summary” of the standard of care is “something less than a full statement of the applicable standard of care and how it was breached.” See Palacios, 46 S.W.3d at 880. A fair summary need only inform the doctor what care was expected but not given. Id. In this case, Dr. Goldman’s expert report clearly sets forth what care was expected from Dr. Fagadau and how he failed to provide it. Dr. Goldman opines that a sufficient examination of Wenkstern required an examination of his left eye in addition to his right eye. Dr. Goldman further states that Dr. Fagadau’s failure to note the lattice degeneration in Wenkstern’s left eye indicates that he failed to examine the left eye during his evaluation on August 23 and this failure fell below the applicable standard of care.

Dr. Goldman also opines that the condition of Wenkstern’s right eye, including pigmented cells in the vitreous, indicated potential retinal detachment and required Dr. Fagadau either to refer Wenkstern immediately to a specialist, such as a vi-treo-retinal surgeon, or, at the very least, schedule a follow-up appointment to reexamine Wenkstern within two weeks. Instead, Dr. Fagadau told Wenkstern to schedule a follow-up appointment in six months to one year. Dr. Goldman states this action fell below the standard of care. Contrary to Dr. Fagadau’s arguments, Dr. Goldman’s opinions about the care that should have been rendered by Dr. Faga-dau are not conclusory but are tied to specific facts. See Moore v. Sutherland, 107 S.W.3d 786, 791 (Tex.App.-Texarkana 2003, pet. denied). The report provides a fair summary of the applicable standard of care and informs Dr. Fagadau of the conduct being called into question. Accordingly, we conclude the trial court did not abuse its discretion in concluding Dr. Goldman’s report sufficiently addressed the elements of the standard of care and the alleged breach of that standard. See Granbury Minor Emergency Clinic v. Thiel, 296 S.W.3d 261, 270 (Tex.App.-Fort Worth 2009, no pet.).

An expert report must also provide information linking the defendant’s purported breach of the standard of care to the plaintiffs injury. See id. at 271. The report need not marshal all the evidence necessary to establish causation at trial. See Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex.2002). But it must contain sufficiently specific information to demonstrate causation beyond mere conjecture. See Farishta v. Tenet Healthsystem Hosps. Dallas, Inc., 224 S.W.3d 448, 453 (Tex.App.-Fort Worth 2007, no pet.).

Dr. Fagadau contends the expert report in this case is conjectural with respect to causation because there is no indication of the exact date Wenkstern’s retinal detachment occurred. Absent an exact date, Dr. Fagadau argues there is no way to show that his failure either to refer Wenkstern immediately to another physician or to schedule a follow-up examination within two weeks caused Wenkstern’s injuries. Dr. Fagadau contends it is equally likely that Wenkstern’s condition remained unchanged during the two-week period following his initial examination or the retinal detachment occurred during the two-week period and any later re-examination by him or another physician would not have prevented the detachment from occurring.

Although Dr. Goldman’s report does not give an exact date the retinal detachment occurred, it clearly opines that a sufficient initial examination and a re-examination within two weeks would have prevented Wenkstern’s retinal detachment. Dr. Goldman states that before the retinal detachment occurred, “tears developed in [Wenkstern’s] right eye.” He goes on to state that, “within reasonable medical probability,” if Wenkstern had been sufficiently examined in his initial visit and reexamined either by Dr. Fagadau or another physician within two weeks, the tears in Wenkstern’s right eye would have been found in time to be treated successfully with a laser before the retina detached. Finally, Dr. Goldman opines that this earlier laser treatment “would have obviated the need for many subsequent surgeries endured by [Wenkstern]” and “he would not have suffered the injuries to the vision in his right eye that he now suffers.” The report, therefore, specifically links Dr. Fa-gadau’s alleged conduct to Wenkstern’s injuries and dismisses the possible scenarios suggested by Dr. Fagadau that could refute causation.

Although Dr. Fagadau may disagree with Dr. Goldman’s conclusion that a re-examination within two weeks would have prevented Wenkstern’s retinal detachment, such disagreement does not render Dr. Goldman’s opinions on causation conjectural. Furthermore, the fact that Wenkstern may not prove causation at trial does not make Dr. Goldman’s expert report inadequate. The possibility that facts may later be discovered that prove Dr. Goldman’s opinions on causation are incorrect is not a basis for holding the report insufficient under section 74.351. See Methodist Hosp. v. Shepherdr-Sherman, 296 S.W.3d 193 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

Dr. Goldman’s expert report is also not conclusory. The report describes what Dr. Fagadau should have done and what happened because he failed to do it. See Moore, 107 S.W.3d at 791. As such, the report clearly constitutes a good faith effort to provide a fair summary of Dr. Goldman’s opinions on causation. Dr. Fa-gadau complains the report fails to rule out other possible causes of Wenkstern’s injuries such as preexisting conditions. But the report clearly states that, within reasonable medical probability, Wenkst-ern’s injuries would not have occurred but for Dr. Fagadau’s alleged conduct. The report further states it was Dr. Fagadau’s failure to address Wenkstern’s preexisting conditions properly that ultimately caused his injuries.

After a thorough examination of the report and the applicable law, we conclude the report sufficiently informs Dr. Faga-dau of the specific conduct Wenkstern is questioning and provides a basis for the trial court to determine whether the claims have merit. See Leland, 257 S.W.3d at 206-07. Accordingly, the trial court did not err in denying Dr. Fagadau’s second motion to dismiss.

We affirm the trial court’s order.

      . In the amended report, Dr. Goldman stated the following:
      The patient [Wenkstern] was a high myope, which is a known risk factor for Retinal Detachment. On 8/23/06, the patient presented to Dr. Fagadau with floaters and grainy vision of acute onset in his right eye. As stated above, the record reflects that a vitreous floater was found in the right eye, and that Retinal Detachment could be possible. The patient also had the additional risk factor of Lattice Degeneration in the left eye, which was never noted by Dr. Fagadau because he failed to examine the left eye. Dr. Fagadau's failure to examine the patient's left eye on 8/23/06 was below the standard of care. Within reasonable medical probability, if the patient had been sufficiently examined on 8/23/06, Lattice Degeneration would have been found in the left eye, which would have further indicated the increased probability of Retinal Detachment in the right eye. Furthermore, considering the conditions in the patient's right eye as well as the pigmented cells in the vitreous noted by Dr. Allen, the standard of care required that Dr. Fagadau either (1) personally perform a follow-up examination of the patient, at the very least by 9/6/06 (i.e., within 2 weeks of 8/23/06), or (2) immediately refer the patient to a physician with sufficient expertise to provide care and treatment for the patient, such as a vitreo-retinal surgeon. Dr. Fagadau did neither. Instead, he scheduled the patient for a follow-up of six months to one year, which was below the standard of care.
      According to the records, the patient did not have Retinal Detachment on the exam of 8/23/06 and he did have a Retinal Detachment on the exam of 9/27/06. This means that the Retinal Detachment occurred between these two dates, and it further means that tears developed in the patient’s right eye prior to the Retinal Detachment. Within reasonable medical probability, if the patient had been sufficiently examined on 8/23/06 (including an examination of the left eye) and reexamined (whether it be by Dr. Fagadau or another physician) by 9/6/06, the developing tears in the patient’s right eye would have been noted sooner and could have been successfully treated with laser before Retinal Detachment ever occurred. Dr. Faga-dau failed to do this, causing the patient to develop a Retinal Detachment in his right eye. Further, within reasonable medical probability, this earlier laser treatment to the right eye would have obviated the need for many subsequent surgeries endured by the patient. Lastly, within reasonable medical probability, had the patient received this earlier laser treatment to the right eye, he would not have suffered the injuries to the vision in his right eye that he now suffers.