Virginia Dailey and John W. Dailey v. Audrey Adickes Thorpe
445 S.W.3d 785
| Tex. App. | 2014Background
- Virginia and John Dailey sold 910 Sunnyside Street to their son Frank and his wife Terry for $80,000; $10,000 paid at closing and $70,000 seller-financed by the Daileys via a promissory note secured by a deed of trust.
- Audrey Thorpe, an Old Republic National Title employee and Terry’s niece, served as the escrow officer for the closing but was not a party to the promissory note or deed of trust.
- The Daileys sued Frank and Terry for fraud, breach of fiduciary duty, and conspiracy to commit fraud, and sued Thorpe for breach of fiduciary duty and conspiracy based on her role in the transaction.
- Thorpe moved to dismiss the claims against her under Texas Rule of Civil Procedure 91a, arguing (a) no breach of fiduciary duty was alleged as to her limited escrow role and (b) the conspiracy claim lacked required allegations (meeting of the minds and unlawful overt act).
- The trial court granted Thorpe’s Rule 91a motion and severed the claims; the Daileys appealed. The Court of Appeals reviewed the dismissal de novo and affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Daileys pleaded breach of fiduciary duty against Thorpe | Daileys alleged Thorpe, as escrow officer and niece, owed and breached fiduciary duties causing loss of mortgage proceeds | Thorpe argued escrow duties are limited to closing; she did not obligate post‑closing mortgage payments and was not party to the loan | Dismissed — no basis in law because alleged breach (failure to collect payments after closing) falls outside escrow officer fiduciary duties |
| Whether conspiracy to commit fraud was sufficiently pleaded against Thorpe | Daileys alleged Frank, Terry, and Thorpe conspired to defraud them by mortgaging the property without consulting them | Thorpe argued plaintiffs’ own pleadings and exhibits (HUD‑1, deed, note) show the Daileys were consulted and financed the loan, negating the alleged conspiracy | Dismissed — no basis in fact; attached documents conclusively refute lack of consultation and conspiracy allegation |
| Whether the court erred by deciding on documents and not permitting live testimony / by denying leave to amend | Daileys contended they were denied chance to present evidence and should be allowed to replead | Thorpe argued Rule 91a limits the court to the pleadings and permitted exhibits; plaintiffs could have amended or nonsuited before the hearing but did not | Denied — Rule 91a prohibits considering evidence beyond pleadings/exhibits and does not require post‑hearing leave to amend; plaintiffs waived opportunity to amend prior to hearing |
Key Cases Cited
- El Paso Nat’l Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (Tex. 1999) (standard of review for questions of law)
- Lundy v. Masson, 260 S.W.3d 482 (Tex. App.—Houston [1st Dist.] 2008) (elements of breach of fiduciary duty)
- Home Loan Corp. v. Tex. Am. Title Co., 191 S.W.3d 728 (Tex. App.—Houston [14th Dist.] 2006) (escrow officer fiduciary duties limited to closing)
- Tri v. J.T.T., 162 S.W.3d 552 (Tex. 2005) (elements of civil conspiracy)