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Malone v. Sewell6/23/2005
I. Introduction
Shaun Malone appeals from the trial court's grant of summary judgment in favor of Barbara Sewell on Malone's claims for sexual exploitation, breach of fiduciary duty, fraud, and sexual assault. We will affirm in part and reverse and remand in part.
II. Factual and Procedural
Background
Sewell was Malone's psychotherapist from November 1995 until June 1996. Shortly after their therapeutic relationship ended, Malone and Sewell commenced a sexual relationship. The sexual relationship began in Fort Worth, then continued when Malone and Sewell moved to Seattle in late 1996. It ended when Malone moved back to Texas in April 1998.
Malone sued Sewell in August 2001 for sexual exploitation, breach of fiduciary duty, fraud, and sexual assault. Sewell filed a traditional motion for summary judgment, primarily on limitations grounds. The trial court granted Sewell's motion. Malone filed this appeal.
III. Standard of Review
In a summary judgment case, the issue on appeal is whether the movant met his summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. S.W. Elec. Power Co., 73 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). Therefore, we must view the evidence and its reasonable inferences in the light most favorable to the non-movant. Great Am., 391 S.W.2d at 47.
In deciding whether there is a material fact issue precluding summary judgment, all conflicts in the evidence are disregarded and the evidence favorable to the non-movant is accepted as true. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995). Evidence that favors the movant's position will not be considered unless it is uncontroverted. Great Am., 391 S.W.2d at 47.
A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. Rhone-Poulenc, Inc. v. Ramirez, 997 S.W.2d 217, 223 (Tex. 1999). To accomplish this, the defendant-movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).
IV. Discussion
In four issues, Malone asserts that the trial court erred in granting summary judgment. Each issue addresses one of Malone's four causes of action. We will examine each in turn.
A. Sexual Exploitation
In her first issue, Malone asserts that the trial court erred in granting summary judgment on her sexual exploitation claim. Sewell argued in her summary judgment motion that Malone's sexual exploitation claim was barred by limitations because Malone filed suit in August 2001, more than five years after the sexual relationship began and more than three years after it ended. Malone contends that the summary judgment evidence raises a fact issue as to whether limitations was tolled until 1999 under section 81.009(a) of the civil practice and remedies code.
Sexual exploitation is a cause of action created by chapter 81 of the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. ยง 81.001
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