In 2008, the mother of plaintiff Bich Nguyen purchased a life insurance policy from Allstate, representing that she had not been diagnosed with a lung disorder in the last 10 years or treated by a doctor in the last five years. The next month, the mother was diagnosed with lung cancer, and she died just a few months later. Allstate investigated, and found that the mother had a history of lung problems, treatment, and hospitalization. Allstate therefore rescinded the insurance policy, and Nguyen filed suit.

Allstate moved for summary judgment, and Nguyen responded with 650 pages of summary judgment evidence. Allstate objected, asserting that Nguyen had failed to meet her burden of actually demonstrating where her controverting evidence could actually be located in those voluminous documents. The trial court and the court of appeals both agreed. While Nyugen’s brief contained a 28-page “Real Factual Background,” that section failed to reference any of the summary judgment evidence in support of her version of the facts, and elsewhere simply referred generally to lengthy documents in support of her claims. Because citing generally to voluminous summary judgment evidence is not sufficient to raise an issue of fact to defeat summary judgment, and because Allstate had met its own summary judgment burden, the court of appeals affirmed the trial court’s decision.

Nguyen v. Allstate Ins. Co., No. 05-11-01120-CV

Charles Wunderlick and Martha Wilson ended their marriage in 1990 with a written agreement that required Wunderlick to pay Wilson alimony of $1000 per month indefinitely.  The payments were to end on the occurrence of certain contingencies, one of which was Wunderlick’s compensation being substantially reduced without “good cause” at the lumber company he owned and operated. In late 2008, the company responded to the recession by laying off employees and cutting the officers’ salaries to $1 annually. Wunderlick eventually stopped paying the monthly alimony payments, and Wilson sued for breach of contract. The trial court granted summary judgment for Wilson, and Wunderlick appealed.

The issue on appeal was whether Wunderlick had submitted summary judgment evidence showing that the company had reduced his compensation without “good cause,” a term which was not defined in the contract. For his part, Wunderlick argued that “good cause” should be interpreted in the employment context, which would require the employee to have done something wrong to justify termination or demotion. Wilson argued that the divorce agreement was not an employment contract, and “good cause” should therefore be given its ordinary meaning of “good reason” — and Wunderlick had admitted that the recession gave the company “good reason” to cut his salary. The court of appeals concluded that both constructions were reasonable, that the contract was therefore ambiguous, and a genuine issue of material fact existed as to the parties’ intent. The court of appeals therefore reversed the summary judgment and remanded to the district court for further proceedings.

Wunderlick v. Wilson, No. 05-11-01597-CV

The district court granted summary judgment in favor of the defendants in a dispute over the termination of a Gold’s Gym franchise. The defendants were listed as personal guarantors of the franchise agreements, but part of their defense was the claim that the signatures on the guaranties were forged. The court of appeals reversed summary judgment on that issue, concluding that the conflicting opinions of the two sides’ handwriting experts created a fact issue that would need to be tried. However, the court of appeals rejected Gold’s Gym’s contention that the defendants had ratified the agreements even if they were forged, concluding (1) that the defendants were never listed as parties to the franchise agreement, and therefore they could not have ratified it through their actions on behalf of their company that was the actual franchisee, and (2) that Gold’s Gym had not produced any summary judgment evidence showing that the defendants ratified the guaranties where they had consistently refused to pay Gold’s demands on the basis that the signatures had been forged.

Gold’s Gym Franchising, LLC v. Brewer, No. 05-11-00699-CV

The Court affirmed a summary judgment in favor of Frost Bank on counterclaims related to a loan default. TAM failed to pay off a loan it received from Frost by the maturity date stated in the written loan agreement. Frost setoff part of the amount due with money from TAM’s operating account and sued for the remainder. TAM counterclaimed, alleging that Frost had orally extended the maturity date in a meeting with TAM’s representative and that Frost’s wrongful setoff caused TAM significant damage. Frost moved for, and TAM failed to challenge, traditional summary judgment on its breach of contract claims, which the court granted based primarily on the written loan agreement. It then granted no-evidence summary judgments dismissing TAM’s counterclaims related to the alleged oral extension. TAM appealed, challenging the trial court’s judgment on TAM’s counterclaims for breach of contract, promissory estoppel, negligent misrepresentation, fraud, conversion, and wrongful setoff.

On appeal, the court held that because TAM did not challenge the traditional summary judgment on Frost’s breach of contract claim, the trial court’s judgment as to the enforceability of the written agreement between TAM and Frost was binding. Thus, TAM’s corresponding counterclaims for breach of contract, negligent misrepresentation, and fraud, which were based on the alleged oral extension, failed due to the written agreement’s enforceability. The court agreed that there was no evidence that TAM relied on the alleged oral extension in its decision to deposit more money into the operating account, so TAM’s promissory estoppel claim also failed. And because TAM’s conversion and wrongful setoff claims required that TAM be entitled to possession of the funds in the operating account, and thus relied on the success of at least one of TAM’s other failed counterclaims, those claims likewise failed.

Trevino & Associates Mechanical v. Frost National Bank, No. 05-11-00650-CV

When the trial court granted summary judgment against Tiffiney Cottledge on a breach of contract claim brought against her, Ms. Cottledge decided to appeal the ruling pro se.  Her main argument on appeal consisted of a complaint that the evidence does not support the trial court’s ruling, and that the trial court was biased in its findings.  On her first argument, the Court found that the appellee had presented seven exhibits supporting his motion for summary judgment and Cottledge did not present any discussion or analysis about why the exhibits could not support the trial court’s ruling.  On her second argument, the Court found that the issue was inadequately briefed because Cottledge failed to include appropriate citations to the record or to applicable authorities.  According to the Court, “[o]ur appellate rules have specific briefing provisions that require appellant to state concisely her complaint and provide an understandable, succinct, and clear argument for why her complaint has merit in fact and law, and cite and apply applicable law together with appropriate record references.”

Cottledge v. Roberson

The court affirmed a summary judgment in favor of Citibank in a suit to recover a credit card debt. Citibank sued Aymett, alleging breach of contract and account stated, and moved for summary judgment. Citibank supported its motion with account statements and excerpts from Aymett’s deposition, in which Aymett admitted using the credit card and making payments for some time and agreed that he has no dispute as to the amount claimed to be due and owing on the account. The trial court granted summary judgment and Aymett appealed.

On appeal, Aymett complained that Citibank did not present a copy of a written contract and that there was no evidence he actually received any of the account statements mailed to him. The court held that a claim for account stated does not require a written contract, but only an agreement to pay an amount owed. Additionally, the summary judgment evidence demonstrated that Citibank mailed, to the same address for Aymett each time, monthly statements and that Aymett responded to the statements by making regular monthly payments until he finally stopped paying. Finally, the trial court did not err in granting summary judgment on an implied contract just because Citibank claimed an express contract based upon the same transaction, as there was no determination that Citibank was entitled to recover on both an express and an implied contract.

Aymett v. Citibank, No. 05-11-00451-CV

A short memorandum opinion from the court of appeals highlights the importance of timely objecting even in unusual circumstances. At a status conference on July 26, the trial court directed the parties to file any motions, responses, or replies by August 10, and stated that the court would rule on those motions the week of August 15. Nobody objected to that timetable. Both parties filed motions for summary judgment on August 10, and on August 16 the trial court granted Ford’s motion and denied Crear’s — without benefit of either a response or a hearing on Ford’s motions. The court of appeals rejected Crear’s claim that the trial court had abused its discretion by summarily ruling in accordance with that schedule, holding that Crear had failed to preserve any issue for appellate review because he had not objected to either the schedule or the lack of a hearing on Ford’s motion.

Crear v. Ford Motor Co., No. 05-11-01363-CV

With the market for highly caffeinated sugar water pretty much saturated in the United States, a pair of businessmen formed a partnership known as Best One to market energy drinks in Mexico. They targeted Unique Beverage Co., the maker of Wired Energy Drink, to be the supplier for their Mexican enterprise. But that relationship fell apart after negotiations failed with the Mexican buyer, leading the partners to file suit against Unique and its representatives for breach of contract, tortious interference, and fraud.

The defendants filed a no-evidence motion for summary judgment, challenging every element of Best One’s causes of action. The plaintiffs responded by describing and attaching 90 pages of emails, then stating that they demonstrated “genuine issues as to material facts and the motions for summary judgment should be denied.” The district granted summary judgment for the defendants, and the court of appeals affirmed. Because Best One’s response failed to address the challenged elements of its claims, and furthermore failed to direct the trial court to “any page number, quote, affidavit or e-mail” within the attached exhibits, the plaintiffs failed to meet their burden of demonstrating that the evidence actually responded to the defendants’ no-evidence motion.

Levine v. Unique Beverage Co., LLC, No. 05-11-01467-CV

To hold a professional liable for negligent misrepresentation, the plaintiff has to prove that the defendant provided the information “to a known party for a known purpose.” McCamish, Martin, Brown & Loeffler v. FE. Appling Interests, 991 S.W.2d 787, 794 (Tex, 1999). The “known party” requirement is satisfied where the professional is “aware of the nonclient and intends that the nonclient rely on the information.” Id. In this case, attorney William Ravkind allegedly filled out a “Verification of Deposit” form stating that he was the depository of two trust accounts belonging to his client. (Ravkind claimed his signature was forged.) Bank of Texas claimed that information was false, and that it relied upon it deciding to make a $2 million loan to the client, who later defaulted. But Ravkind had not provided the verification form to Bank of Texas. Instead, the form was addressed to an individual at Bright Mortgage, and it was apparently packaged and presented to Bank of Texas by yet another mortgage company. The trial court granted Ravkind’s no-evidence motion for summary judgment, and the court of appeals affirmed, holding that the bank could not demonstrate Ravkind made a representation to it by proof that it was the practice of the lending industry to receive and rely on documents submitted to other financial institutions in connection with the loan.

Bank of Texas, N.A. v. Ravkind, No. 05-11-01123-CV

In July 2008, the Dean Group entered into a standard listing agreement agreement to sell Metal Systems, Inc, including the real estate owned by Metal Systems.  TDG sued Metal Systems in May 2010 for breach of contract and quantum meruit, and the trial court dismissed these claims on summary judgment.  TDG appealed.  On appeal, Metal argued that the contract claim failed because TDG could present no evidence of a valid, enforceable contract on the ground that the listing agreement included real estate and TDG presented no evidence that it held the real estate licenses required by the Texas Real Estate License Act.  The Court agreed, finding that TDG did not “allege, prove, or create a fact issue that it was a real estate license holder at the time the Agreement was signed.”  It therefore upheld the trial court’s dismissal.

Dean A. Smith Sales v. Metal Systems

The court affirmed a take-nothing summary judgment in favor of DCAD in a property tax dispute. The property owner challenged the appraisal value of his property as both unequal and excessive. DCAD filed a no-evidence motion for summary judgment arguing that the appraised value was neither excessive nor unequal. In responsive briefing, the owner stated that its property manager and tax representative would testify that the appraisal values do not reflect the accurate market values, and attached an affidavit from him verifying the truth of statements in the response. The trial court granted summary judgment.

On appeal, the court held that the owner’s evidence failed because an affidavit in which a party attempts to verify the truth and correctness of all “allegations and facts” in a response to a motion for summary judgment is not competent summary judgment evidence. Moreover, the response did not state what the property manager believed the market value actually was or whether he would testify that the appraisal value was excessive or unequal. Therefore, the owner did not raise a fact issue and summary judgment was proper.

WOL+MED v. DCAD, No. 05-12-00011-CV

In 2003, insurance broker Brett Woods signed an “Employment, Confidentiality, and Non-Compete Agreement” with U.S. Risk Insurance Group, Inc. USRIG is a holding company that owns companies engaged in the insurance business, including U.S. Risk, Inc. But USRIG does not conduct any insurance business on its own behalf, and the non-compete agreement was solely between Woods and USRIG. Woods resigned in 2009 and went to work for a competitor, which prompted USRIG to file suit for breach of the non-compete. Woods prevailed on cross-motions for summary judgment, and the court of appeals affirmed.

The court first held that the only summary judgment evidence in the record supported Woods’ claim that he had resigned for “good reason,” which only triggered a non-solicitation requirement rather than the full non-compete. The court went on to hold that the non-compete was overbroad in any event, as it prevented Woods from competing with USRIG in any aspect of its business, regardless of whether Woods had worked in that business while employed with the company. Finally, the court of appeals held that Woods could not be liable for soliciting any of USRIG’s customers, since it didn’t actually have any. The court declined to construe the contract to include the subsidiary that was actually engaged in the insurance business, nor would it recognize the subsidiary as a third-party beneficiary (despite a clause providing that the contract inured to the benefit of USRIG’s “subsidiaries, affiliates, successors, and assigns”). On the latter point, the court expressly noted that even if the sub were a third-party beneficiary, it still could not receive greater rights than were bargained for between the original parties to the contract, and the contract only prevented Woods from competing  with the holding company, not its subsidiaries.

U.S. Risk Insurance Group, Inc. v. Woods, No. 05-11-00558-CV

In January 2010, Rodney Meisel found an uncashed paycheck from his former employer, dated May 2009.  After calling the former employer’s bank to confirm that the check hadn’t been previously cashed, Mr. Meisel deposited it in his account at U.S. Bank and informed the ex-employer that he had done so.  But four days later, the employer designated the check for return, based on a computer program that indicated it had been previously paid. The next day, the employer told its bank that the check was still good, but the check was still returned to U.S. Bank. Although U.S. Bank was informed that the check wasn’t counterfeit, it still closed Meisel’s accounts and reported to a credit agency that the closure was due to “transactions involving items or checks belonging to another party.” Meisel sued for defamation based on that communication. The trial court granted summary judgment for U.S. Bank, and the court of appeals affirmed based on the defense of truth.

On appeal, the court noted that a true statement is not actionable as libel. Starting from that premise, the court noted that there were two versions of the check in the summary judgment record. Version 1 was a “LEGAL COPY” of Meisel’s check, apparently a type of substitute check provided for under federal law, that he deposited in 2009. The second copy was the one deposited in 2010, which was the original, non-substitute version of the same check. The court of appeals rejected Meisel’s contention that he still “owned” the original check even though he had deposited the substitute version of the same check eight months earlier. Copies may be admissible the same way as originals, but they are not owned in the same way.

Meisel v. U.S. Bank, N.A., No. 05-11-01336-CV

In this case (Gonerway v. Corrections Corporation of America, et al.), the plaintiff–an inmate at the privately run correctional facility run by defendant CCA–claimed that defendants negligently failed to provide adequate medical care when she developed an severe eye infection as a result of the cosmetic contact lenses she wore while she was incarcerated.  CCA moved for summary judgment, which the trial court granted.  The Court of Appeals affirmed the trial court’s ruling, finding that CCA’s contract with the Texas Department of Criminal Justice did not give rise to a duty to provide medical care to inmates because that duty was outsourced to another entity, the Correctional Managed Health Care Committee. The Court also rejected Gonerway’s additional claim that CCA owed her a duty to insure that she received timely medical care because Gonerway’s own testimony indicated that CCA did, in fact, provide care shortly after it was informed of Gonerway’s complaints.

Gonerway v. CCA, No. 05-11-01524-CV

After defaulting on his home equity loan, the borrower filed suit to stop the servicer from foreclosing on his home. The borrower argued that (1) the note had been cancelled through the addition of a “VOID” on the last page, (2) that the photocopy of the note produced by the servicer was not authentic, and (3) that the servicer had not shown how it acquired the note, and therefore had not proven it was authorized to enforce it. The court of appeals affirmed summary judgment in favor of the servicer, rejecting all three of the homeowner’s claims. The “VOID” stamp did not show any intent to cancel the note, the court held, because it only appeared over an unused endorsement line on the last page, and there was no other indication of cancellation. The servicer also did not need to produce the original of the promissory note because it was seeking a judicial foreclosure, not making demand for payment of the note, and the borrower had admitted he had defaulted under the note. Finally, the servicer was not required to establish a complete record of the transactions by which it had acquired the note, as its ownership was validly established by the allonge that transferred the note from the original lender to the servicer.

Chance v. CitiMortgage, Inc., No. 05-12-00306-CV

The court of appeals has affirmed a summary judgment ruling in favor of the owner of Las Colinas Country Club, in a case arising out of the death of a man who was diving for golf balls in the water hazard at the 18th green. The worker’s widow claimed that the country club was liable under the theory that it was engaged in a joint enterprise with the company it had contracted to recover lost golf balls, which had also employed the decedent. The country club obtained summary judgment on the basis that there was no evidence of a “community of pecuniary interest,” as required by the joint enterprise doctrine. The court of appeals agreed, holding that it was insufficient for the plaintiff to show that the country club paid the ball retrieval company 12 cents for each ball recovered. Joint enterprise theory does not rest on the fact that the defendants each had a common business interest in the enterprise.  Instead, it requires a common interest that is “shared without special or distinguishing characteristics” in the relevant common purpose. Although each party to the ball retrieval contract benefited from it, that fact alone was not capable of establishing that the defendants had a community of pecuniary interest.

Logan v. Irving Club Acquisition Corp., No. 05-11-01314-CV

The court of appeals has issued an opinion that serves as a useful primer on the statute of frauds.  The appellant, Michael Kalmus, sue to recover for unpaid commissions after his employment was terminated.  The appellee, Financial Necessities Network, defended the case with the statute of frauds, claiming that the oral agreement alleged by Kalmyus was essentially an agreement for lifetime employment that could not be enforced in the absence of a signed writing.  The court of appeals reversed and remanded, holding that the evidence showed the agreement was terminable at will, and therefore could have been concluded within a year’s time.  In the course of announcing that decision, the opinion collects and recites much of the black-letter law regarding the statute of frauds, making it a useful source of future citations on the topic.

Kalmus v. Oliver, No. 05-11-00486-CV

As AutoGas Systems saw that its future prospects looked bleak, one of its executives, John Cullen (its president and COO), circulated to certain employees a severance plan, which included incentives for employees to remain with the company as it wound up its affairs.  Dana Kelman was one of the employees who received the severance plan.  When his time with AutoGas ended, he sued to obtain the funds he was due under the agreement.  The only problem was that AutoGas’s CEO and Chairman, G. Randolph Nicholson, denied that Cullen ever had authority to enter into those severance agreements on behalf of the company.  Kelman moved for summary judgement, insisting that he conclusively established that Cullen’s authority to enter into the severance plan stemmed from his position as president and member of the board.  The trial court agreed and awarded Kelman $93,000 in damages.

The Court of Appeals reversed and remanded.  It found that, although a senior executive like Cullen had authority to bind the company on routine matters arising in the ordinary course of business, the parties advanced conflicting evidence on whether the purported severance agreement qualified as a “routine matter.”   The Court went further, however, and rejected as a matter of law that “a severance agreement developed in anticipation of the winding up of the corporation’s business and resulting in payments substantially higher than the employee’s annual salary of $70,000 is a routine matter.”  The Court also rejected Kelman’s claim that Cullen had apparent authority to bind the company to the severance plan because the parties has presented conflicting evidence of that authority.

AutoGas Acquisitions Corp. v. Kelman, No. 05-11-00692-CV

While Bruce Adams was carrying out his duties as a senior “troubleshooter” for defendant Oncor, he fell 25 feet from a utility pole and broke his back.  Adams spent weeks in the hospital and underwent several surgeries.  While Adams recovered, he received his full salary under Oncor’s salary continuation policy, but, when it appeared that Adams would no longer be able to return to work as a troubleshooter, Oncor sent him its standard letter informing him, among other things, that if he could not return to perform the “essential job duties of [his] occupation” within several months he would be terminated.  Although Oncor worked with Adams to find a position as a dispatcher, this new position did not work out.  Adams sued, alleging that Oncor violated section 451.001 of the Texas Labor Code by wrongfully terminating his employment in retaliation for his filing a workers’ compensation claim.

The Court granted Oncor’s motion for summary judgment, finding that Adams had presented no evidence demonstrating that his termination was the result of his filing a workers’ compensation claim.  Instead, the Court held that Oncor had terminated Adams “based on the uniform application of a reasonable absence control policy.”

Adams v. Oncor Electric Delivery Co., LLC, NO05-11-00618

In February 2008, Booklab sued Konica over the faulty printer it had purchased from Konica.  Sixteen months after the suit began, Konica filed a “no evidence” summary judgment motion on Booklab’s damages claim.  Booklab objected, contending that the motion was improper because it had not had enough time for discovery.  The trial court granted Konica’s motion and Booklab appealed.

The main issue on appeal was whether Booklab’s time for discovery had been adequate.  Booklab argued that its case was “complex”–thus requiring an extended discovery period.  It also asserted that the trial court’s established discovery period had not expired by the time Konica had filed its motion.  The court of appeals rejected both of these arguments.  Because determining whether adequate time for discovery is so fact specific, it held that “the rules do not require that the discovery period applicable to the case have ended before a no-evidence summary judgment may be granted.”  It also rejected Booklab’s claim that the case was complex, finding that Booklab’s damages claim required only that it prove a loss of business opportunities with its own clients.  It noted that Booklab could not explain why discovery of Konica’s employees and executives was necessary to its claim.

Booklab Inc. v. Konica Minolta Business Solutions, Inc., No. 05-10-00095

The owners of a tract of land in Collin County formed a limited partnership with an investor and his company to develop the property, then sold the land to the LP.  As part of the sale, the LP issued a $9 million promissory note to the seller, plus another $1.5 million promissory note to a mortgage company, secured by a deed of trust on the property.  Subsequent loans by the mortgage company to the LP upped the debt by another $6.5 million, also secured by deeds of trust and with priority over the note issued to the sellers.  Since it all ended up in litigation, you will not be surprised to learn that the development collapsed.  The sellers sued the limited partnership, their fellow investor, and the mortgage company for fraud, breach of fiduciary duty, and related claims.  The mortgage company initiated foreclosure proceedings, which were stayed by the grant of a temporary injunction.  Before long, everybody filed motions for summary judgment, and the trial court granted them all.

The court of appeals affirmed.  With respect to the seller’s fraud claims, there was no evidence of misrepresentation in the original loan documents because those documents were not in the record on appeal.  Nor was there any evidence the seller relied on any misrepresentations in the subsequent loan agreements because, citing health concerns, she had not presented herself for deposition and she had not included any affidavit in response to the mortgage company’s no-evidence motion.  The court rejected the seller’s argument that the mere fact of having signed the agreement established that the seller had relied on the alleged misrepresentations.

Hall v. Douglas, No. 05-10-01102-CV

A pro se defendant has managed to reverse a summary judgment granted against him by the trial court.  In a very short memorandum opinion, the court of appeals held that the plaintiff’s traditional motion summary judgment failed to identify the specific grounds for the motion, including the causes of action and their elements.  The court therefore remanded the case for further proceedings.

Eoff v. Ahern Rentals, Inc., No. 05-11-00621-CV

In a memorandum opinion, the court of appeals has affirmed summary judgment in favor of PNC Bank on four personal guarantys of a promissory note.  Each of the guaranty agreements contained provisions waiving the defense of offset against a deficiency claim, preventing the guarantors from asserting that the bank had sold the foreclosed property for less than fair market value.  The court of appeals rejected the guarantors’ argument that parties could not waive the statutory offset rights contained in Chapter 51 of the Texas Property Code, citing the court’s own recent opinions in Interstate 35/Chisam Road, L.P. v. Moayedi and King v. Park Cities Bank.  The court also rejected the guarantors’ contention that the language of their own guaranty agreements was not specific enough to waive their right to offset the deficiency.

Toor v. PNC Bank, N.A., No. 05-11-00012-CV

This lawsuit arose from the sale of a 42,000 acre West Texas ranch. In 2007, JP Morgan, the trustee holding the ranch, entered into a contract with AKB Hendrick Limited Partnership, granting AKB ten months to raise money to purchase the ranch during which JP Morgan would not market, solicit or accept any “back up” offers to purchase the ranch. AKB would deposit $250,000 in escrow, from which fees would be deducted as time passed.  Despite this contract, Hamilton, a member of AKB, subsequently approached Kenneth Musgrave about purchasing the ranch.  Musgrave and Hamilton entered into an agreement whereby AKB permitted Musgrave to seek to purchase the ranch if AKB were paid $1M upon Musgrave’s successful purchase.

AKB then informed JP Morgan that it was terminating their agreement.  Negotiations continued between Musgrave and JP Morgan.  The parties agreed to a sale in April 2008, but in August 2008, before closing, Musgrave terminated the agreement.  AKB sued Musgrave (and various Musgrave entites) for fraud, breach of contract, and several other counts.  The trial court granted summary judgment in favor of Musgrave, and AKB appealed.

On the fraud count, the Court of Appeals found that AKB was not justified in relying on certain representations made by Musgrave because, when the representations were made, the two were involved in a commercial transaction and “the representation took place in an adversarial context.”  The Court also dismissed fraud claims stemming from  Musgrave’s statement that “he could help out with certain fees if those became an issue.”  According to the Court, promises of future performance are only actionable misstatements if the promise was made with no intention to perform, and AKB did not present evidence establishing such intent.  The also Court found that Musgrave did not breach its contract with AKB because Musgrave never successfully purchased the Ranch.

AKB Hendrick v. Musgrave Enterprises, No. 05-11-00251

In a memorandum opinion, the court has reaffirmed the venerable rule that an appellant must challenge all grounds asserted in a motion for summary judgment if the trial court has not specified on which grounds the motion was granted.  In this instance, the bank moved for summary judgment, attacking the elements of the plaintiffs’ causes of action and seeking to prove its affirmative defenses.  The plaintiffs disputed the estoppel, ratification, and waiver defenses, but failed to address the separate defense of quasi-estoppel.  On appeal, they likewise failed to challenge the quasi-estoppel defense.  As a result of that failure, the court of appeals automatically sustained the trial court’s grant of summary judgment, without any need to reach the merits of the quasi-estoppel defense.

Walker v. Town North Bank, N.A., No. 05-10-01174-CV

In a defamation case, the court of appeals has affirmed summary judgment in favor of the defendants.  The case was brought by a group of Dallas police officers who claimed they had been defamed by a former cop, D Magazine, and the magazine’s writer following the publication of a story alleging the issuance of fraudulent misdemeanor citations.  In the process of overruling the plaintiffs’ complaint that the trial court had abused its discretion by failing to grant a further continuance of the summary judgment hearing, the court of appeals endorsed the San Antonio court’s formulation of “a qualified First Amendment privilege against compelled disclosure of confidential information possessed by a journalist.” The court also rejected the plaintiff’s objections to the writer’s affidavit, holding that his testimony of relying on anonymous sources was sufficient to establish a good faith basis for publishing the allegedly defamatory claims, which the plaintiffs had failed to rebut.  Finally, the court of appeals held that the defendants had submitted adequate evidence to prove their lack of actual malice against the plaintiffs, and that the plaintiff had failed to raise a fact issue to contradict that evidence.

Nelson v. Pagan, No. 05-09-01380-CV

In a memorandum opinion the court reversed as insufficient a summary judgment award to a neighborhood association against a delinquent property owner. Gashaye’s property is subject to a covenant to pay assessments to Candlewood, which Gashaye failed to do. Candlewood sought foreclosure of the lien securing Gashaye’s obligation and attorney’s fees, presenting evidence proving $1545 in unpaid assessments and late fees and $2500 in attorney’s fees. The trial court awarded Candlewood $50. The court reversed, holding that the award of $50 under these circumstances was so contrary to the overwhelming weight of the evidence that it was clearly wrong and unjust. The court noted that attorney’s fees are recoverable on a breach of a homeowner’s association covenant, but remanded for the determination of a proper damages and attorney’s fees award.

Candlewood Creek Neighborhood Association, Inc.v. Gashaye, No. 05-11-00380-CV

In Farmers Insurance Exchange v. Greene, Appellee-Greene maintained a homeowner’s insurance policy with Famers Insurance Exchange (“FIE”).  Among other things, the Policy contained a vacancy provision which suspended coverage for any damage to the dwelling that occurred 60 days after the dwelling becomes vacant.  As luck would have it, Greene moved out of the covered residence 4 months before a fire destroyed it.  Greene notified FIE of the damage, but FIE denied her claim based on the vacancy provision.  She sued and the trial court granted summary judgment in Greene’s favor, finding that her violaiton of the vacancy clause did not contribute to the loss, and thus did not prevent her from recovering under the Policy.

The Court of Appeals reversed, holding that the vacancy clause was clear and unambiguous in that it suspends coverage sixty days after the residence becomes vacant.  It also noted that “the vacancy clause functions as an exclusion; it excepts a specific condition (vacancy) from coverage.”  Further, the Court found that Section 862.054 of the Insurance Code—which provides that an insured’s breach of a provision or condition in a policy does not constitute a defense to a suit for loss unless the violation contributed to the destruction of the property—was inapplicable.   The vacancy of the home increased the risk of insuring it, and the Court felt that, under such circumstances, “we are loathe to engraft by judicial fiat additional terms requiring FIE to assume liability for a risk the Policy specifically excluded.

In Green v. McKay, the Court of Appeals addressed the causation requirement in a legal malpractice action.  Appellants were charged by the City of Dallas with certain code violations on a property they had sold to a debtor, who had executed a deed of trust in their favor, but who was later forced to file in Chapter 13 bankruptcy.  In response to the suit, appellants sought legal advice from appellee, McKay, who told appellants that they did not have to do anything and that “it would go away.”  The City ultimately obtained a default judgment of $562,275 against appellants, who then turned around and sued McKay for legal malpractice.  The Court of Appeals upheld the trial court’s decision, finding that the appellants had not presented any evidence of “causation.”  According to the Court, in a legal malpractice action, “[c]ausation requires that a plantiff prove a meritorious defense to the underlying case.”  Based on principles of bankruptcy law—which established that under the vendor’s lien held by appellants, they held legal title to the property in question—the Court found the appellants would not have been able to establish a meritorious defense in the code violations lawsuit even if McKay had filed an answer.  Accordingly, the Court concluded that the appellants could not establish the causation element of their malpractice claim and upheld the trial court’s dismissal.

A Kaufman County couple has failed in their effort to reverse a summary judgment granted in favor of their homeowners association.  The association had filed its MSJ on December 17, then faxed a notice on December 20 stating that a hearing had been set for January 6.  Because that only provided 17 days notice instead of the required 24 days (including an extra three days due to service by fax), the homeowners objected.  The association then reset the hearing for January 13, and the trial court permitted the couple to file their response on January 12, thereby giving the homeowners 24 days from the original date of notice to file their response.  The court of appeals held that was adequate notice, particularly because the the homeowners had requested an (unspecified) continuance of the January 6 hearing date.  Since the trial court had granted a total of 24 days for the homeowners to respond, the court of appeals held there was no merit to their complaint of inadequate notice of the summary judgment hearing.  The court of appeals also rejected the homeowners’ breach of contract claim, holding that there was no evidence the property’s deed restrictions required the association to maintain a dam located partially on the plaintiffs’ property.

McGowan v. Meadowwood Park Ranch Estates Homeowners Association, No. 05-11-00695-CV

by Chris Patton

Citibank sued a credit card account holder for breach of contract and account stated to collect the balance due on a cardholder’s credit card account.  In the trial court, Citibank moved for summary judgment, which the trial court granted in its favor.  On appeal, the defendant challenged the trial court’s decision on a number of grounds.  However, because the defendant, who was proceeding pro se, repeatedly cited to exhibits and other evidence that were not in the record, the court refused to address the issues related to breach of contract raised by the defendant.  The court also refused to address the issues related to account stated claim.  Because Citibank moved for summary judgment  on the alternative grounds of breach of contract and account stated, and because the trial court did not specify the grounds on which summary judgment was granted, the court found that it need not resolve the issues related to the suit on account claim.  Because “even if we resolved it in [Defendant’s] favor our decision would not change the outcome of this appeal.”

Burruss v. Citibank, No. 05-10-01376-CV

The court reversed a no-summary judgment against the employees of a lawn service company. The employees alleged that the lawn service issued them worthless paychecks for two months. The employer filed a no-evidence motion for summary judgment that neither referred to the facts alleged nor specified in what way the evidence failed to support the claims. The employees responded, attaching affidavit evidence and wage statements. The employers objected to the evidence as hearsay, but the court ruled that objection was waived because they failed to obtain a ruling from the trial court on their objection. The court also held that the affidavits and wage statements were sufficient evidence to defeat summary judgment because they indicated at least an implied employment contract that the employer breached, damaging the employees.

Gaspar, et al., v. Lawnpro Inc., No. 05-11-00861-CV

In a consolidated appeal, the court affirmed a district court’s summary judgment and a  county court at law’s forcible retainer judgment related to the foreclosure sale of the property. The court held that Texas Property Code Section 51.002(b)(2), which requires notice of a foreclosure sale to be filed “in the office of the county clerk of each county in which the property is located,” does not require notice to be recorded in the permanent deed records. The court also rejected the argument in the forcible retainer lawsuit that the mortgage servicer had no authority to sell the property because the only issue in a forcible retainer action is the right to actual possession – not the merits of the title.

Montgomery v. Aurora Loan Services, LLC, No. 09-11836

In a simple breach of guarantee case, the court of appeals issued a memorandum opinion affirming a summary judgment in favor of a creditor against a debtor on the debtor’s personal guaranty of an open account for his business.  The debtor raised several issues, contending that (1) the court erred by failing to grant his motion for continuance of the summary judgment hearing; (2) the summary judgment affidavit evidence was conclusory; (3) the motion failed to identify evidence in the record to support summary judgment; (4) the motion for summary judgment did not specifically seek attorney’s fees; and (5) both the guaranty and underlying contract were unenforceable and lacked consideration.  The court overruled each issue, holding that the motion for summary judgment was sufficiently specific to support the award, that it was supported by adequate evidence proving the creditor’s claims, and that the court’s refusal to continue the hearing was not an abuse of discretion.

Long v. Motheral Printing Company, No. 05-10-01128-CV

In a construction contract case, the court has reversed summary judgment in favor of an electrician subcontractor against a retail property leaseholder. The subcontractor alleged that he had performed 80% of the work at the property when the general contractor’s check bounced, and the subcontractor sued the property leaseholder for the difference. The district court granted summary judgment in favor of the subcontractor. The court of appeals reversed and remanded, holding that (1) a fact issue existed as to the proper amount of retainage the leaseholder was to retain and (2) the court erroneously awarded the subcontractor certain amounts under the Texas “Fund Trapping” statute that the leasehold had paid to replacement contractors.

Jewelry Manufacturer’s Exchange, Inc. v. Tafoya, No. 05-11-00065-CV