BILL BROOKS APPELLANT v. TORJI WYCOUGH APPELLEE (2026)

OPINION

Bill Brooks appeals the trial court's order granting summary judgment in favor of Torjie Wycough. This is the second appeal of this matter.¹ Brooks raises five issues on appeal. We affirm in part, and reverse and remand in part.

BACKGROUND

The facts are well known to the parties, and we discussed them at length in our prior opinion. We will not fully recount them here. In summary, Brooks, who had medical issues and a terminally ill wife, sold his homestead in Wise County, Texas. In 2018, with the proceeds of that sale, he negotiated and consummated the purchase of approximately forty-six acres of property in Van Zandt County, Texas. However, in accordance with Brooks's wishes, Wycough, who is Brooks's daughter, signed all closing documents and took title to the property in her name as her sole and separate property.

Brooks moved onto the property. After the death of his wife, he remarried in 2021, and he and his new wife continued to reside on the property. Wycough and Brooks's relationship soured and Wycough ultimately evicted Brooks. Shortly thereafter, Brooks filed suit against Wycough alleging that he and Wycough had an oral agreement for Wycough to hold the property as a nominee owner, and that she was to convey the property to Brooks at some point in time after he purchased it in her name. He asserted breach of contract and breach of fiduciary duty claims and sought a declaratory judgment confirming this arrangement. He also sought equitable relief, namely a constructive trust and alternatively a resulting trust, to remedy Wycough's alleged unjust enrichment.

Wycough filed a motion for summary judgment, which the trial court ultimately granted. Brooks appealed. We affirmed the trial court's order granting summary judgment in part and reversed and remanded in part.

In our prior opinion, we held that the oral contract to hold the property as the nominee owner and later convey it to Brooks was an unenforceable contract because it violated the statutes of frauds and conveyances and Brooks failed to raise a fact issue on the partial performance exception to the statutes of frauds and conveyances.²

We likewise held that Brooks failed to raise a fact issue on his breach of fiduciary relationship claim, namely that he did not provide sufficient summary judgment evidence of a formal or informal fiduciary relationship existing prior to the transaction at issue here.³

As part of these holdings, we affirmed the trial court's holding on Brooks's declaratory judgment action, at least insofar as it related to his request for declaratory judgment on the unenforceable oral agreement to reconvey the property to him.⁴

However, we remanded Brooks's claims for equitable relief—unjust enrichment, constructive trust, and resulting trust—largely because they were not properly before us.⁵ We expressed no opinion on the merits of those claims. For example, Wycough argued in her brief that these claims are not independent causes of action but are remedies to redress inequitable outcomes. We agreed with that statement of the law, but in and of itself, we held that argument alone did not establish her right to summary judgment.⁶ We also noted that these equitable claims serve as exceptions to the statutes of frauds and conveyances and remanded those claims.⁷ Finally, we also held that Wycough's motion for summary judgment did not adequately present her statute of limitations affirmative defense on these equitable claims.⁸

Upon remand, Wycough again moved for summary judgment. After a hearing, the trial court again fully granted Wycough's motion. The totality of the trial court's order states as follows:

On this day the Court heard evidence and argument of Counsel regarding Defendant's Motion for Summary Judgment and finds and concludes as follows:

The Court further finds that the affidavit of Plaintiff in the case is [a] sham and no-evidence;

The Court further finds the decision of the Court of Appeals that the oral agreement cannot be enforced renders the Plaintiff's clams of unjust enrichment and resulting trust unenforceable as a matter of law;

The Court further finds that the deed is unambiguous as a matter of law;

The Court further finds no genuine issue as to any material fact and Defendant is entitled to judgment as a matter of law.

IT IS THEREFORE ordered and decreed that the Defendant's Motion for Summary Judgment is granted in its entirety, and Defendant shall recover cost of suit.

All relief not granted is denied.

This appeal followed.

SHAM AFFIDAVIT

In his first issue, Brooks contends the trial court erroneously ruled that his affidavit “is [a] sham and no-evidence.”

Standard of Review and Applicable Law

Although we review a trial court's grant of summary judgment de novo, a trial court's decision to admit or exclude summary judgment evidence is reviewed for abuse of discretion. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017)). This standard applies when, as in this case, the “sham affidavit” doctrine is raised. See Lujan, 555 S.W.3d at 84–85. An abuse of discretion exists when the trial court's decision is made without reference to any guiding rules or principles. U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). We must uphold the trial court's evidentiary rulings if there is a legitimate basis for its rulings. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).

The sham affidavit rule is a procedural tool that permits a trial court to disregard an affidavit submitted in opposition to a motion for summary judgment when the affidavit conflicts with the affiant's prior sworn testimony and does not provide an adequate explanation for the conflict. See Lujan, 555 S.W.3d at 85. Specifically, the sham affidavit rule may be applied when: “(1) the affidavit is executed after [the affiant's] deposition and (2) there is a clear contradiction on (3) a material point (4) without [sufficient] explanation[.]” Id.; Cnty. of El Paso v. Aguilar, 600 S.W.3d 62, 75 (Tex. App.—El Paso 2020, no pet.). “A fact is material if its existence might affect the outcome of the suit under the governing law[.]” Fraire v. Budget Rent-A-Car of El Paso, Inc., 441 S.W.3d 523, 527 (Tex. App.—El Paso 2014, pet. denied).

Whether to apply the sham affidavit rule to disregard sworn testimony is a case-specific inquiry not easily amenable to the rote application of multi-part tests. Lujan, 555 S.W.3d at 88. The sham affidavit rule is not a free-standing rule of procedure to be mechanically applied in the same way to every case. Id. “It is a flexible concept that flows from the text of Rule 166a(c) and aids courts grappling with the ultimate case-specific inquiry on summary judgment: Are the proffered fact issues genuine or not?” Id. “[E]very discrepancy contained in an affidavit does not justify a district court's refusal to give credence to such evidence.” Id. at 87. To that end, the Texas Supreme Court guided our analysis as follows:

A court asked to disregard a conflicting affidavit must examine the nature and extent of the differences in the facts asserted in the documents to determine what effect a conflict should be given in a particular case. Examination of the nature and extent of the contradiction is essential. Most differences between a witness's affidavit and deposition are more a matter of degree and details than direct contradiction. This reflects human inaccuracy more than fraud. If the differences fall into the category of variations on a theme, consistent in the major allegations but with some variances of detail, this is grounds for impeachment[.] If, on the other hand, the subsequent affidavit clearly contradicts the witness's earlier testimony involving the suit's material points, without explanation, then the sham affidavit rule applies.

Id. at 88.

Discussion

Wycough compares Brooks's affidavit to his original petition, first amended petition, and second amended petition, the latter of which is his live pleading. In her analysis, she claims that Brooks's petitions affirmatively state that he intended to donate the property to Wycough as a gift, but that his subsequent affidavit disclaims any donative intent. Accordingly, her argument continues, we should apply the sham affidavit rule to the alleged conflicts in his petitions and affidavit, which she claims he created for the purpose of defeating summary judgment.

We first note that Brooks's original and first-amended petitions have been superseded by his second-amended petition, and contrary to Wycough's contention, those earlier petitions play no role in the analysis. See TEX. R. CIV. P. 65; FKM P'ship, Ltd. v. Bd. of Regents of Univ. of Hous. Sys., 255 S.W.3d 619, 633 (Tex. 2008) (recognizing that “amended pleadings and their contents take the place of prior pleadings”); Lake Jackson Med. Spa, Ltd. v. Gaytan, 640 S.W.3d 830, 839 (Tex. 2022) (holding that “allegations contained in a pleading that is superseded by an amended pleading are not conclusive and indisputable judicial admissions.”).

The parties cite to no authority, and we have found none, that apply the sham affidavit rule to pleadings. We decline to do so here. In fact, our research suggests the contrary—the sham affidavit rule likely does not apply to statements made in the pleadings. To that end, as a general proposition, pleadings are not competent summary-judgment evidence, even if they are sworn or verified.⁹ Regency Field Servs., LLC v. Swift Energy Operating, LLC, 622 S.W.3d 807, 818 (Tex. 2021) (citing Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660–61 (Tex. 1995)). Moreover, if there is no prior sworn statement to compare, then an affidavit cannot be labeled a sham affidavit. See Reynolds Energy Transp., LLC v. Plains Mktg., L.P., 706 S.W.3d 845, 890 (Tex. App.—San Antonio 2024, no pet.) (citing Lujan, 555 S.W.3d at 85); see also Hughey v. Liberty Cnty. Mut. Ins. Co., No. 13-24-00204-CV, 2025 WL 3550562, at *4 (Tex. App.—Corpus Christi—Edinburg Dec. 11, 2025, no pet.) (mem. op.) (holding that because expert report is not sworn statement, subsequent contradictory affidavit by same expert cannot be considered sham affidavit).

Similarly, our sister court in Texarkana noted that it would not apply the sham affidavit rule to statements in pleadings, because they are not competent summary judgment evidence. See Jackson v. Diamond D Realty, No. 06-23-00028-CV, 2023 WL 5284870, at *6 (Tex. App.—Texarkana Aug. 17, 2023, no pet.) (mem. op.) (stating, “We also note that [nonmovant's] declaration and his appellate brief contained restatements of his petition and argument. Because [his] pleadings and arguments are not evidence, we will not consider them as competent summary judgment evidence [in evaluating the applicability of the sham affidavit rule].”). We agree with this reasoning.

Finally, contrary to Wycough's contention, even comparing Brooks's second-amended petition with his subsequent affidavit, we conclude that his second-amended petition does not clearly contradict his affidavit on a material point. Wycough focuses on a statement in Brooks's affidavit that “I never intended to give her the property,” and compares that to various averments in his petition describing an intent to gift the property to her. But considering the petition and affidavit in full context, they are generally aligned and do not describe clear contradictions on any material point. Brooks's affidavit states in relevant part:

I asked [Wycough] if I could put title [to] it in her name. My second wife, Diane Brooks, was terminally ill. I was told she could pass away at any time. I knew that her will left everything to me, but if she passed before the land deal was completed, the probate could take a long time. I did not want to lose the opportunity to buy the property. [Wycough] agreed to have the title in her name, but that it was to be my property. I never intended to give her the property or the money I used to pay for it. [Wycough] and my agreement was that she would have the title placed in her name, but the land would be mine ․

She and I agreed the title would be in her name. But because I paid for it, it would be mine. I funded the sale.

․

[Wycough] asked me several times if I wanted to put the place in my name. I was in bad health and could not see to drive. I was not sure how long I would live, so I never changed it to my name.

․

I would not have made and paid for all the improvement, if [Wycough] had not agreed the property was mine.

․

I never agreed that the property I bought and paid for would be [Wycough's]. She is only on the deed because when I asked her if I could put it in her name to avoid it being tied up in my wife's probate, she agreed. I have lived there ever since the sale was closed. Throughout this time, [Wycough] knew that the property was mine and consistently referred to it as “Daddy's House.” My whole family and circle of friends knew that it was mine and that I was planning to live my life out on the Van Zandt County property.

(Emphasis added). Brooks's second amended petition states in relevant part:

The sale was all cash. To raise the cash, [Brooks] sold his home and land in Wise County, Texas. He paid over $550,000.00 for the land in Canton, Texas. He advised [Wycough] that he would have the title placed in her name as his nominee so the sale would not get tied up in the probate of his terminally ill wife. Also, at the time [Brooks] thought he would leave the property to [Wycough]. If she were still on the deed at his death, she would not have to go through his probate. At his death, he had expected to leave the property to her. [Wycough] agreed to hold title for the benefit of [Brooks]. After closing [Brooks] moved to the home and land in Van Zandt County. It became his homestead. [Wycough] gave him ad valorem tax statements each year, and he paid the taxes on the property. She would mark the envelope “Daddy's house.” At [Wycough's] advice, he claimed the ad valorem tax deduction. [Brooks] made over approximately $400,000.00 in improvements to the property.

[Wycough] agreed to this arrangement and followed it until September, 2022. At that time, she told [Brooks] that she was claiming the land for her own in violation of their agreement and breaching her fiduciary duties of utmost loyalty and good faith to [Brooks]. She notified her father that he was merely a Tenant and she was his Landlord. There was never a Landlord/Tenant Agreement, either oral or written. Bill never paid [Wycough] rent, and there was never any demand for him to pay rent. Ultimately, in June of 2023, she filed an eviction suit to take exclusive possession of his home and land. [Wycough] wrongfully filed the eviction suit.

(Emphasis added).

A close reading of his petition, particularly the components we italicized for emphasis, claims that any intent to give her full title to the property would be contingent upon his death and whether she happened to remain the legal title holder at that time. It left open the possibility of other outcomes if his intent or expectations changed, or if she was no longer the legal title holder at his death for any reason. In contravention of her contentions, the pleading does not clearly state that Brooks provided Wycough with a gift at the time of the sale. Wycough also ignores other parts of his petition, including a statement that he did not give her the money to buy the property. Specifically, he stated later in his second-amended petition as follows:

[Wycough] now claims both the property and the improvements as hers, although paying nothing and, directly benefitting from the money [Brooks] paid. [Brooks] did not give [Wycough] the money to buy the property. [Brooks] seeks to have the full value of the money paid to him. To prevent unjust enrichment, [Brooks] seeks the imposition of a constructive trust or alternatively, a resulting trust on the property. [Brooks] further seeks an order commanding [Wycough] to execute all documents necessary to vest full title in Plaintiff.

(Emphasis added). Thus, the overall tenor of the affidavit and second-amended petition are in alignment. Read together in accordance with our notice pleading standards, he conditionally intended to give her the property in the future upon his death, but their agreement was that she hold legal title only as his nominee and that Brooks was the property's true equitable owner. This does not clearly contradict the affidavit on a material point. Therefore, we hold the trial court abused its discretion in excluding the affidavit.

Brooks's first issue is sustained.

DECLARATORY JUDGMENT

In our prior opinion, we stated that “[o]ur holding with regard to Brooks's declaratory-judgment action applies to that cause of action only to the extent that such action seeks a declaration based on the parol contract at issue.” See Brooks v. Wycough, No. 12-24-00186-CV, 2025 WL 51842, at *5 n.3 (Tex. App.—Tyler Jan. 8, 2025, pet. denied) (mem. op.). After our remand and the trial court again granted summary judgment in favor of Wycough, the question now arises as to whether Brooks's remaining equitable claims are viable under the Uniform Declaratory Judgments Act (the Act).

At the outset, in pertinent part, the Act provides that “[a] person interested under a deed, will, written contract, or other writings constituting a contract ․ may have determined any question of construction or validity arising under the instrument ․ [or contract] ․ and obtain a declaration of rights, status, or other legal relations thereunder.” TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a) (West 2020). We already held in our earlier opinion that the oral agreement to convey the property to Brooks is unenforceable, and it is questionable that, as an oral agreement, whether relief is permissible as a declaratory judgment action.

In any event, the purpose of the Act is to declare existing rights, status, or other legal relations. Republic Ins. Co. v. Davis, 856 S.W.2d 158, 164 (Tex. 1993). It cannot be invoked as an affirmative ground of recovery to revise or alter such rights or actions. Id. Furthermore, a party cannot use the Act as a vehicle to obtain otherwise impermissible attorney's fees. MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009).

To that end, as we discuss below, constructive and resulting trusts are creatures of equity and do not arise from any agreement of the parties, but as a matter of law. See Raym v. Tupelo Mgmt., LLC, No. 02-19-00477-CV, 2020 WL 3865273, at *8 (Tex. App.—Fort Worth July 9, 2020, no pet.) (mem. op.). “Because it is a resulting trust, it cannot also be a contract case, and appellees cannot recover their attorney's fees because they are neither provided for by statute nor by agreement.” Id. The same is true of a constructive trust, which is also a creature of equity. See KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 87 (Tex. 2015). Consequently, a declaratory judgment is not an appropriate vehicle for relief under Brooks's remaining equitable theories of recovery, namely constructive trust and resulting trust to redress Wycough's alleged unjust enrichment.

We hold that the trial court properly impliedly granted summary judgment against Brooks on his request for declaratory judgment.

Unjust Enrichment

In his second issue, Brooks argues that the trial court erred “by using this Court's holdings in the prior appeal as a basis to dismiss the claims [we] remanded when [we] should and would have dismissed those claims ․ if doing so was appropriate.” In his third issue, Brooks argues that “the trial court err[ed] by granting summary judgment on the basis that the subject deed is unambiguous when ambiguity is not an element of the remanded claims.” We agree.

Applicable Law

“Unjust enrichment occurs when a person has wrongfully secured a benefit or has passively received one which it would be unconscionable to retain.” Eun Bok Lee v. Ho Chang Lee, 411 S.W.3d 95, 111 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (citing Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992)). “When a person has been unjustly enriched by the receipt of benefits in a manner not governed by contract, the law implies a contractual obligation upon that person to restore the benefits to the plaintiff.” Id. Unjust enrichment is not a proper remedy, however, merely because it might appear expedient or generally fair that some recompense be afforded for an unfortunate loss or because the benefits to the person sought to be charged amount to a windfall. Heldenfels Bros., 832 S.W.2d at 42.

Unjust enrichment is an equitable principle holding that one who receives benefits unjustly should make restitution for those benefits. Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 367 (Tex. App.—Dallas 2009, pet. denied) (citing Villarreal v. Grant Geophysical, Inc., 136 S.W.3d 265, 270 (Tex. App.—San Antonio 2004, pet. denied)). A person is unjustly enriched when she obtains a benefit from another by fraud, duress, or the taking of an undue advantage. Id. (citing Heldenfels Bros., 832 S.W.2d at 41). Unjust enrichment is the failure to make restitution of benefits received under circumstances giving rise to an implied or quasi-contract to repay. Id. (citing Villarreal, 136 S.W.3d at 270)

Fraud, duress or the taking of an undue advantage are not necessarily required elements of unjust enrichment, even though the doctrine “is typically found to apply” under one of these scenarios. Walker v. Walker, 631 S.W.3d 259, 266 (Tex. App.—Houston [14th Dist.] 2020, no pet.). Instead, the right to recover under an unjust enrichment theory does not depend on the existence of a wrong and to obtain restitution on a theory of unjust enrichment, a wrongful act need not be shown. Id. Under the doctrine, one who receives benefits, even passively, which would be unjust to retain ought to make restitution for those benefits. Id.

Discussion

In the trial court's order granting summary judgment that led to this second appeal, it found that “the decision of the Court of Appeals that the oral agreement cannot be enforced renders the Plaintiff's claims of unjust enrichment and resulting trust unenforceable as a matter of law.” Similarly, it also found that “the deed is unambiguous as a matter of law.”

It is undisputed that the deed is unambiguous, and that it placed title in Wycough's name. The analysis does not stop there, however. Even though Wycough holds legal title to the property, questions persist regarding whether equitable title remains with Brooks through his unjust enrichment, constructive trust, and resulting trust theories of recovery. Therefore, the trial court's finding in that regard has no effect on Brooks's claims or this appeal.

Furthermore, it is true we held that Brooks's contractual and fiduciary claims failed as a matter of law in our earlier opinion from the first appeal. Nevertheless, we clearly remanded to determine whether his remaining equitable claims survived summary judgment. That is, as we explain below, the purpose of these alternative equitable claims is to provide relief if Brooks's contractual claim failed, which it did. As we also implied, Brooks's failure to provide sufficient summary judgment proof supporting a fiduciary relationship between he and Wycough was not fatal to his equitable claims, because other bases can support imposition of a constructive trust or resulting trust. Therefore, the trial court's finding that our ruling that the oral agreement is unenforceable, which foreclosed Brooks's equitable claims, is incorrect.

Brooks's second and third issues are sustained. With that framework in mind, we turn to review the summary judgment against Brooks on his equitable remedies of constructive trust and resulting trust.

SUMMARY JUDGMENT

In his fourth issue, Brooks argues that he raised fact issues on his constructive trust and resulting trust theories of recovery to remedy Wycough's alleged unjust enrichment. We agree.

Standard of Review

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See TEX. R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant who conclusively negates at least one essential element of the nonmovant's cause of action is entitled to summary judgment as to that cause of action. See Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Likewise, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. Id. A matter is conclusively established if the evidence leaves “no room for ordinary minds to differ as to the conclusion to be drawn from it.” Int'l Bus. Machs. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 235 (Tex. 2019). If the movant satisfies its burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. Lujan, 555 S.W.3d at 84. But the burden does not shift if the movant does not establish his burden as a matter of law. See Jose Fuentes Co. v. Alfaro, 418 S.W.3d 280, 287 (Tex. App.—Dallas 2013, pet. denied).

Once the movant has established a right to summary judgment, the nonmovant has the burden to respond to the motion and present to the trial court any issues that would preclude summary judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). The only question is whether an issue of material fact is presented. See TEX. R. CIV. P. 166a(c). A genuine issue of material fact exists if there is more than a scintilla of evidence regarding the challenged element. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).

When reviewing summary judgments, we perform a de novo review of the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). We are not required to ascertain the credibility of affiants or to determine the weight of evidence in the affidavits, depositions, exhibits and other summary judgment proof. See Gulbenkian v. Penn, 252 S.W.2d 929, 932 (Tex. 1952); Palestine Herald-Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex. App.—Tyler 2008, pet. denied).

Where, as here, the trial court's order specifies the grounds upon which summary judgment was granted, we need not limit our review to those grounds and, instead, will consider all grounds for summary judgment properly presented to the trial court and preserved for appeal. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996); Gonzales v. Thorndale Cooperative Gin and Grain Co., 578 S.W.3d 655, 658 n.3 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

Constructive Trust

“A constructive trust is an equitable, court-created remedy designed to prevent unjust enrichment.” KCM Fin. LLC, 457 S.W.3d at 87. It serves “the very broad function of redressing wrong or unjust enrichment in keeping with basic principles of equity and justice.” Kinsel v. Lindsey, 526 S.W.3d 411, 425 (Tex. 2017) (quoting Meadows v. Bierschwale, 516 S.W.2d 125, 131 (Tex. 1974)). They have historically been applied to remedy or ameliorate harm arising from a wide variety of misfeasance. KCM Fin. LLC, 457 S.W.3d at 87.

While the form of a constructive trust is practically without limit, its existence depends upon the circumstances. Hubbard v. Shankle, 138 S.W.3d 474, 485 (Tex. App.—Fort Worth 2004, pet. denied). Whether a constructive trust should be imposed at all is within the discretion of the trial court. Id. Imposition of a constructive trust “generally requires” that the requesting party establish: (1) breach of a special trust or fiduciary relationship or actual or constructive fraud, (2) unjust enrichment, and (3) an identifiable res that can be traced back to the original property. Archer v. Anderson, 556 S.W.3d 228, 245 (Tex. 2018); Hubbard, 138 S.W.3d at 485.

Even though “breach of a special trust or fiduciary relationship or actual or constructive fraud is ‘generally’ necessary to support a constructive trust,” the remedy can be imposed in other circumstances where property is “obtained through bad faith or unconscionable acts.” Kinsel, 526 S.W.3d at 426 (quoting Bradshaw, 457 S.W.3d at 87). When the legal title to property has been obtained through means that render it unconscionable for the holder of legal title to retain the beneficial interest, equity imposes a constructive trust on the property in favor of the one who is equitably entitled to the same. Jackson Walker, LLP v. Kinsel, 518 S.W.3d 1, 23 (Tex. App.—Amarillo 2015), aff'd, Kinsel, 526 S.W.3d at 426; In re Estate of Melchior, 365 S.W.3d 794, 500 (Tex. App.—San Antonio 2012, pet. denied).

The acquisition of property is considered unconscionable, so as to justify the imposition of a constructive trust, wherever there has been a violation of the court's notion of what constitutes fair dealing. See 64 TEX. JUR. 3d Restitution Etc. § 70 (2021) (compiling cases defining unconscionability in unjust enrichment context); see also Prigmore v. Hardware Mut. Ins. Co. of Minn., 225 S.W.2d 897, 900 (Tex. App.—Amarillo 1949, no writ).

As our Supreme Court stated in Meadows v. Bierschwale, 516 S.W.2d 125 (Tex. 1974), “there is no unyielding formula to which a court of equity is bound in decreeing a constructive trust, since the equity of the transaction will shape the measure of relief granted.” Id. The remedy is so flexible that it allows the trial court to “indulge in presumptions and even pure fiction” to “satisfy the demands of justice.” Id. The rather broad nature as grounds for the imposition of a constructive trust was further explained as follows:

whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one's weakness or necessities, or through any other similar means, or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein ․

Jackson Walker, 518 S.W.3d at 21–22 (quoting Wheeler v. Blacklands Prod. Credit Ass'n, 627 S.W.2d 846, 849, (Tex. App.—Fort Worth 1982, no writ)). The court further observed that the form and variety of these types of trusts are practically without limit and their principle is applied wherever it is necessary for the obtaining of complete justice even though the law may also give the remedy of damages against the wrongdoer. Id.

For instance, Texas law has long recognized that where a person acquires legal title to land by means of an intentionally false and fraudulent verbal promise to reconvey, and thereafter retains, uses, and claims property as her own, so that the transaction is in fact a scheme of actual deceit, a constructive trust results. See Chandler v. Riley, 210 S.W. 716, 719 (Tex. App.—Dallas 1919, no writ). Indeed, the courts often impose constructive trusts in cases where property has been conveyed without consideration to someone to carry out a family arrangement. See Gray v. Mills, 206 S.W.2d 278, 282 (Tex. Civ. App.—Fort Worth 1947), aff'd, 210 S.W.2d 985 (1948) (holding where mother and husband conveyed property to mother's son on oral promise to reconvey or return proceeds if he sold it and he used proceeds to purchase property for himself relying on Statute of Frauds, son was treated as constructive trustee of property); see also Fitz–Gerald v. Hull, 237 S.W.2d 256, 262–63 (Tex.1951); In re Marriage of Braddock, 64 S.W.3d 581, 586 (Tex. App.—Texarkana 2001, no pet.).

A constructive trust may be placed on the property wrongfully taken or the proceeds or revenues generated from the property. Wheeler, 627 S.W.2d at 851. “In order to fasten a constructive trust on property owned by the defendant, some particular property must be identified as to which plaintiff has an equity.” Id. “Definitive, designated property, wrongfully withheld from another, is the very heart and soul of the constructive trust theory.” Id. The theory underlying the constructive trust remedy is the equitable notion that the “acquisition or retention of the property is wrongful and that [the possessor of the property] would be unjustly enriched if [the possessor] were permitted to retain the property.” Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736 (Tex. App.—San Antonio 2007, pet. denied).

While the form of a constructive trust is practically without limit, its existence depends upon the circumstances. Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 851 (Tex. 1980); Simmons v. Wilson, 216 S.W.2d 847, 849 (Tex. Civ. App.—Waco 1949, no writ). Whether a constructive trust should be imposed must be determined by a court based on the equity of the circumstances. Burrow v. Arce, 997 S.W.2d 229, 245 (Tex.1999). Its scope and application, within some limitations, is generally left to the discretion of the court imposing it. Wheeler, 627 S.W.2d at 849.

However, the reach of a constructive trust is not unlimited. KCM Fin. LLC, 457 S.W.3d at 87–88 (Tex. 2015). The law is suspicious of resulting or constructive trusts, and consequently, a heavy burden of proof is placed on the party attempting to establish the existence of one. York v. Boatman, 487 S.W.3d 635, 647 (Tex. App.—Texarkana 2016, no pet.). Consequently, it has been stated that the proponent of a constructive trust must “strictly prove” the elements necessary for the imposition of the trust. See, e.g., Troxel v. Bishop, 201 S.W.3d 290, 297–98 (Tex. App.—Dallas 2006, no pet.); Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 859 (Tex. App.—Fort Worth 2005, no pet.); Hubbard, 138 S.W.3d at 485 (citing Ginther v. Taub, 675 S.W.2d 724, 725 (Tex. 1984) (requiring strict proof of unfair conduct or unjust enrichment on the part of the wrongdoer)).

Resulting Trust

The doctrine of resulting trust, or purchase money resulting trust, “is invoked to prevent unjust enrichment.” Nolana Dev. Ass'n v. Corsi, 682 S.W.2d 246, 250 (Tex. 1984). “When title to property is taken in the name of someone other than the person who advances the purchase price, a resulting trust is created in favor of the payor.” Tricentrol Oil Trading, Inc. v. Annesley, 809 S.W.2d 218, 220 (Tex. 1991); see Nolana Dev. Ass'n, 682 S.W.2d at 250; Cohrs v. Scott, 338 S.W.2d 127, 130 (Tex. 1960); Haynes v. Molina, No. 01-19-00917-CV, 2021 WL 4155822, at *6 (Tex. App.—Houston [1st Dist.] Sept. 14, 2021, pet. denied) (mem. op.) (“A party who provides all or a portion of the purchase price acquires equitable title when the deed is executed.”). A resulting trust arises when title passes because the law presumes that the party who pays for the property is the true owner and the party in whom legal title is taken is holding the property for the benefit of the true owner. See e.g., Haynes, 2021 WL 4155822, at *5–6; Troxel, 201 S.W.3d at 298. It is an “intent trust” employed when property had been used for a special purpose which has terminated or become frustrated so that the law implies a trust for the equitable owner of the property. See Tricentrol Oil Trading, 809 S.W.2d at 220.

Although they are often confused, resulting trusts and constructive trusts rely on two different theoretical bases. Sheldon Petroleum Co. v. Peirce, 546 S.W.2d 954, 957 (Tex. Civ. App.—Dallas 1977, no writ). Both resulting and constructive trusts are implied by operation of law to prevent unjust enrichment. In re Marriage of Loftis, 40 S.W.3d 160, 165 (Tex. App.—Texarkana 2001, no pet.); Davis v. Sheerin, 754 S.W.2d 375, 387 (Tex. App.—Houston [1st Dist.] 1988, writ denied). As with constructive trusts, because there is a strong presumption in favor of the correctness of a deed as written and executed, the law is suspicious of resulting trusts and consequently, a heavy burden of proof is placed on the party attempting to establish the existence of one. See Troxel, 201 S.W.3d at 298; Hubbard, 138 S.W.3d at 486.

However, a resulting trust is an equitable remedy primarily involving consideration. In re Marriage of Loftis, 40 S.W.3d at 165. The doctrine of a resulting trust looks to valuable consideration, not legal title, as the deciding factor on equitable title or interest from a transaction. Id. A resulting trust arises by operation of law when title is conveyed to one person but the purchase price or a portion thereof is paid by another. Tolle v. Sawtelle, 246 S.W.2d 916, 919 (Tex. Civ. App.—Eastland 1952, writ ref'd). The parties are presumed to have intended that the grantee hold title to the use of him who paid the purchase price and whom equity deems to be the true owner. Cohrs, 338 S.W.2d at 130. The trustee of a resulting trust generally is responsible only for conveying the property to the beneficiary or in accordance with his directions. Nolana Dev. Ass'n, 682 S.W.2d at 250.

Exceptions exist when, as here, the facts give rise to the presumption of a gift, such as when a parent paid the purchase price for property and placed title in the name of his child. See Amador v. Berrospe, 961 S.W.2d 205, 207–08 (Tex. App.—Houston [1st Dist.] 1996, pet. denied). “In this situation, a presumption of gift arises, and no resulting trust exists until the presumption is rebutted.” Id. at 207. This presumption may be rebutted by clear and convincing evidence of facts and circumstances existing at the time of the transaction from which the alleged purchase money resulting trust arises, which demonstrates that the purchaser intended to retain a beneficial interest in the property. Id. at 208; see Chang v. Liu, No. 01-22-00529-CV, 2024 WL 4628401, at *7 (Tex. App.—Houston [1st Dist.] Oct. 31, 2024, no pet.) (mem. op.). Clear and convincing evidence is the measure or degree of proof that will produce in the mind of the factfinder a firm belief or conviction as to the truth of the allegations sought to be established. State v. K.E.W., 315 S.W.3d 16, 20 (Tex. 2010).

Discussion

We first note that although Brooks's burden at trial is either “strict proof” for a constructive trust or proof by clear and convincing evidence to rebut the gift presumption for a resulting trust, we do not apply a heightened standard in our review of the summary judgment. See Hardy v. Bennefield, 368 S.W.3d 643, 648 (Tex. App.—Tyler 2012, no pet.) (citing Huckabee v. Time Warner Entm't Co., 19 S.W.3d 413, 421–23 (Tex. 2000)); see also SVT, LLC v. Seaside Vill. Townhome Ass'n, Inc., No. 14-19-00586-CV, 2021 WL 2800463, at *5–6 (Tex. App.—Houston [14th Dist.] July 6, 2021, no pet.) (mem. op.) (noting that whether plaintiff will “ultimately prevail on the [unjust enrichment claim] is not the issue before us[;] we simply conclude that [the plaintiff] presented more than a scintilla of evidence that [the defendant] potentially received benefits that would be unconscionable to retain).

Instead, Brooks need only present a genuine issue of material fact to survive summary judgment.¹⁰ A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists when the evidence allows reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Of course, as we mentioned in our general standard of review, we view the evidence in the light most favorable to Brooks, indulging every reasonable inference and resolving any doubts against the motion. See Sudan, 199 S.W.3d at 292. Furthermore, Brooks may utilize parol evidence to establish a constructive trust or resulting trust. See Troxel, 201 S.W.3d at 297–98; see also Haynes, 2021 WL 4155822, at *7; Procom Energy, L.L.A. v. Roach, 16 S.W.3d 377, 381 (Tex. App.—Tyler 2000, pet. denied).

With respect to a constructive trust, Texas courts have long recognized that a constructive trust can be an appropriate remedy based on similar facts where it would be unconscionable for Wycough to retain full ownership of the property, which defeats her motion for summary judgment. See, e.g., Chandler, 210 S.W. at 719 (holding constructive trust was appropriate where person acquires legal title to land by means of intentionally false or fraudulent verbal promise to reconvey, and thereafter retains, uses, and claims property as her own); see also Gray, 206 S.W.2d at 282 (holding constructive trust is appropriate where property was conveyed without consideration to son to carry out family arrangement where son orally promised to reconvey or return proceeds if he sold it and he used proceeds to purchase property for himself relying on statute of frauds as defense).

With respect to the resulting trust theory, since this is a transaction without consideration from a parent to a child, the default position is a presumption of gift to Wycough. See Amador, 961 S.W.2d at 207–08. It was thus incumbent on Brooks to produce more than a scintilla of evidence that he did not intend a gift. As we held earlier in this opinion, the trial court erroneously applied the “sham affidavit” rule to Brooks's affidavit. His affidavit provides enough evidence to preclude summary judgment. Even without considering his affidavit though, we hold Brooks raised a genuine issue of material fact on his constructive trust and resulting trust remedies to redress Wycough's alleged unjust enrichment.

Prior to the events at issue, Brooks was a longtime resident of Wise County, Texas. At the time of the transaction, he was in poor health and his wife was terminally ill. He underwent medical treatments in Van Zandt County where his daughter Wycough resided. After learning that the property was for sale by its owners, who are his son-in-law's family, Brooks expressed interest in purchasing it to relocate, be near family, and continue his medical treatments.

At the time of the transaction, Brooks sold his Wise County homestead and financed the purchase of the Van Zandt County property with the proceeds from the sale of his homestead. Brooks, not Wycough, negotiated the purchase of the property. Brooks intended for the property to be initially titled in Wycough's name to avoid what he understood could be probate issues if his terminally ill wife died before closing and then later titled in his name.

According to Brooks, Wycough offered on more than one occasion to put title to the property in his name after completing the transaction. Brooks intended to “get to it,” but he was in poor health and just “never did get it done.” Not only did Brooks provide all the consideration to purchase the property, but he moved onto the premises and made approximately $400,000 in improvements, including adding on to the house, shop, and working pens, constructing a barn, and building fences.

Brooks also maintained and paid insurance and utilities on the property while he lived there. He paid ad valorem taxes on the property for several years. Brooks claims he did not intend to give Wycough the property and never told her or anyone else that it was hers. According to Brooks, Wycough referred to the house on the property as “Daddy's house.”

It was not until several years after Brooks purchased the property that Wycough abruptly claimed exclusive control and ownership of it when she sent Brooks an eviction notice in April 2023. This occurred after he remarried, and their relationship soured.

We hold that these circumstances, when viewed in the light most favorable to Brooks, indulging all reasonable inferences from the evidence in his favor, and resolving any doubt against the motion, could lead reasonable and fair-minded people to differ in their conclusions. A rational factfinder could reasonably conclude under these circumstances that Wycough received benefits from the transaction that would be unconscionable to retain. In other words, it would be reasonable to conclude that based on these circumstances and his diminished summary judgment burden of proof, Brooks would not have sold his homestead, solely negotiated the sale of the property, paid the entire purchase price of the property from the sale of his homestead, moved across the State and resided on the property, made $400,000 of improvements, and paid the insurance, utilities, and property taxes while he resided there had he intended to gift Wycough the property while he was still alive. Of course, we are reminded that Brooks has a higher burden at trial, but at this juncture, he presented enough evidence to survive summary judgment on his equitable claims.

Accordingly, we sustain Brooks's fourth issue.

LIMITATIONS 11

Wycough contends that Brooks's equitable claims are barred by limitations as a matter of law. We disagree.

Standard of Review and Applicable Law

Limitation of actions is an affirmative defense that must be specifically pleaded and proved. See TEX. R. CIV. P. 94 (limitations is affirmative defense); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988) (affirmative defense of limitations must be proven by asserting party). Where the facts are undisputed, the defendant may establish that the plaintiff's claim is barred by the statute of limitations as a matter of law. See Holland v. Lovelace, 352 S.W.3d 777, 788 (Tex. App.—Dallas 2011, pet. denied). We recognize that in the traditional summary judgment context a defendant moving for summary judgment based on limitations must conclusively establish the elements of that defense and must also conclusively negate application of the discovery rule if pleaded as an exception to limitations. See Gill v. Hill, 688 S.W.3d 863, 868 (Tex. 2024); Erikson v. Renda, 590 S.W.3d 557, 563 (Tex. 2019).

Whether a cause of action is barred by limitations is a question of law that we review de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003). “Generally a cause of action accrues when facts come into existence [that] authorize a claimant to seek a judicial remedy, when a wrongful act causes some legal injury, or whenever one person may sue another.” Am. Star Energy & Mins. Corp. v. Stowers, 457 S.W.3d 427, 430 (Tex. 2015) (internal quotations omitted). Said another way, “[c]auses of action accrue and statutes of limitations begin to run when facts come into existence that authorize a claimant to seek a judicial remedy.” Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex. 2011). When a plaintiff discovers or should have discovered the cause of his injury and whether a plaintiff exercised due diligence in so discovering are questions of fact. Pirtle v. Kahn, 177 S.W.3d 567, 572 (Tex. App.—Houston [1st Dist.] 2007, pet. denied).

The statute of limitations for an unjust enrichment claim is two years from its accrual date. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West 2017); Elledge v. Friberg–Cooper Water Supply Corp., 240 S.W.3d 869, 871 (Tex. 2007) (per curiam). The limitations period for a constructive trust action is four years. In re Estate of Melchior, 365 S.W.3d at 798. It is unclear but resulting trusts also likely have a four-year limitations period. See Meadows v. Chevron, U.S.A., Inc., 782 F. Supp. 1189, 1194 (E.D. Tex. 1991), aff'd in part, 990 F.2d 626 (5th Cir. 1993) (citing Peek v. Berry, 184 S.W.2d 272, 275 (Tex. 1944)).

Discussion

Both Brooks and Wycough agree that the discovery rule is not applicable here. Rather, Wycough contends that limitations accrued at the time the underlying property transaction closed and when they allegedly formed the oral nominee agreement in 2018. Since Brooks did not file suit until five years later in June 2023, her argument continues, limitations had run. We disagree.

A constructive trust does not exist until a court imposes it to remedy inequitable circumstances, and thus, limitations accrues when the act that caused an injury occurred rather than any arrangement created by the parties. See Estate of Gibbs, No. 02-18-00086-CV, 2019 WL 2293172, at *6 (Tex. App.—Fort Worth May 30, 2019, no pet.) (mem. op.) (discussing cited principle and holding it was error to grant summary judgment because defendant failed to prove limitations defense as a matter of law on constructive trust) (citing York v. Boatman, 487 S.W.3d 635, 646–47 (Tex. App.—Texarkana 2016, no pet.)).

Brooks claims that Wycough first notified him that she claimed the property as exclusively her own in September 2022 after their relationship deteriorated due to his remarriage and other issues. She sent Brooks an eviction notice in April 2023. In June 2023, Wycough filed an eviction suit to take exclusive possession of the property. Brooks also filed this suit in June 2023.

Although we held that Brooks's breach of the oral nominee agreement failed as a matter of law, we have held that his equitable claims survive summary judgment. Accordingly, Brooks is entitled to a trial on those theories at this juncture. It is not the arrangement of the parties—when they consummated the sale and allegedly formed the oral nominee agreement—that controls. The nature of the equitable remedies is such that if ultimately granted in Brooks's favor, Wycough held only legal title for Brooks's benefit as the true owner of the property, and by implication, she would have retroactively held this status throughout the timeline of this suit. It was not until she repudiated the alleged agreement that Brooks suffered an injury and his suit accrued on his equitable claims. See Estate of Gibbs, 2019 WL 2293172, at *6; York, 487 S.W.3d at 646–47. Here, that occurred at the earliest in September 2022 when Wycough informed Brooks that she claimed the property as her own, and at the latest when she sent him an eviction notice in April 2023. He filed suit in June 2023, just a matter of months after his equitable claims accrued. Under either circumstance, he filed suit within the limitations period. Consequently, Wycough's limitations claim fails.

Brooks's challenge to Wycough's limitations argument is sustained.

SUMMARY

The trial court properly granted summary judgment against Brooks on his declaratory judgment action. The trial court erroneously applied the sham affidavit rule to Brooks's affidavit, and in any event, his affidavit does not clearly contradict his second-amended petition on a material point. Viewing the summary judgment evidence in the light most favorable to Brooks, we hold that he raised fact issues on his equitable claims of unjust enrichment, constructive trust, and resulting trust against Wycough. As a result, the trial court improperly granted summary judgment on these claims. Finally, Brooks's equitable theories of constructive trust and resulting trust remedying Wycough's alleged unjust enrichment are not barred by limitations.

DISPOSITION

The trial court's implied grant of summary judgment against Brooks on his declaratory judgment action is affirmed. The remainder of the trial court's order granting summary judgment is reversed, and we remand the cause for further proceedings consistent with this opinion.

JUDGMENT

THIS CAUSE came to be heard on the appellate record and the briefs filed herein, and the same being considered, because it is the opinion of this court that there was error in judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court that the trial court's implied grant of summary judgment against BILL BROOKS on his declaratory judgment action be affirmed, the remainder of the trial court's order granting summary judgment be reversed, and remanded for further proceedings consistent with this opinion; and that all costs of this appeal are hereby adjudged against the Appellee, TORJI WYCOUGH for which execution may issue; and that this decision be certified to the court below for observance.

FOOTNOTES

1.   See Brooks v. Wycough, No. 12-24-00186-CV, 2025 WL 51842, at *1 (Tex. App.—Tyler Jan. 8, 2025, pet. denied) (mem. op.).

2.   Id. at *4-8.

3.   Id. at *8-13.

4.   Id. at *8 n.3.

5.   Id. at *14-16.

6.   Id. at *14-15.

7.   Id. at *7 n.2, 16.

8.   Id. at *13-14.

9.   Brooks's Second Amended Petition is not sworn or verified, as Wycough believes it should have been. In any event, Wycough acknowledges in her brief that she failed to file special exceptions, object, or otherwise make the trial court aware that Brooks's petition lacked sworn verification, and as a result, she concedes that she is bound thereby.

10.   We are aware that we held in our earlier opinion in evaluating Brooks's contract claim that he failed to raise a fact issue on the partial performance exception to the statute of frauds because the evidence he presented bore an equal relationship as a gift to Wycough, or conversely, that she held only legal title to the property as his nominee in accordance with the oral agreement. We held as such because the partial performance exception requires proof that Brooks's actions were done with no other design than to fulfill the oral nominee agreement, which he failed to provide. Brooks's equitable claims are not so limited.

JAMES T. WORTHEN Chief Justice