NO. 05-11-01478-CV IN THE COURT OF APPEALS FIFTH

Transcription

NO. 05-11-01478-CV
ACCEPTED
225EFJ016725622
FIFTH COURT OF APPEALS
DALLAS, TEXAS
12 February 13 P9:27
Lisa Matz
CLERK
IN THE COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
___________________________________________________________________
BANK OF TEXAS, N.A.
Appellant,
v.
CLINT M. GLENNY, II
Appellee.
__________________________________________________________________
ON APPEAL FROM THE 193RD JUDICIAL DISTRICT
COURT OF DALLAS COUNTY, TEXAS
__________________________________________________________________
BRIEF OF APPELLANT
BANK OF TEXAS, N.A.
_________________________________________________________________
ORAL ARGUMENT REQUESTED
Barbara L. Emerson
Texas State Bar No. 06599400
BELLINGER & DeWOLF, LLP
10,000 N. Central Expy, Suite 900
Dallas, Texas 75231
Telephone: 214/954-9540
Facsimile: 214/954-9541
[email protected]
ATTORNEYS FOR APPELLANT
BOKF, N.A. d/b/a BANK OF TEXAS,
successor-in-interest to BANK OF
TEXAS, N.A.
IDENTITY OF THE PARTIES
PARTIES
COUNSEL
BOKF, N.A. d/b/a BANK OF TEXAS,
successor-in-interest to BANK OF TEXAS,
N.A.
Barbara L. Emerson
Bellinger & DeWolf, LLP
Dallas, Texas 75231
Telephone: 214/954-9540
Facsimile: 214/954-9541
Email: [email protected]
Clint M. Glenny, II
William D. Crist, Esq.
3123 N.W. Loop 410
San Antonio, Texas 78230
Telephone: (210) 269-7366
Facsimile: (210) 738-3600
Email: None
Richard Woods, Esq.
3123 N.W. Loop 410
Telephone: (210) 615-7779
Facsimile: (210) 615-7667
i
TABLE OF CONTENTS
IDENTITY OF THE PARTIES ........................................................................................... i
TABLE OF CONTENTS .................................................................................................... ii
APPENDIX ....................................................................................................................... 30
TABLE OF AUTHORITIES .............................................................................................. iv
RECORD REFERENCES ................................................................................................. vii
STATEMENT OF THE CASE ........................................................................................ viii
REQUEST FOR ORAL ARGUMENT .............................................................................. ix
ISSUES PRESENTED ........................................................................................................ x
I.
STATEMENT OF FACTS ......................................................................................... 1
II.
SUMMARY OF ARGUMENT .................................................................................. 5
III. ARGUMENT .............................................................................................................. 6
A.
Standard of Review ..................................................................................................... 6
B.
1. No-Evidence Motion for Summary Judgment. .................................................... 7
2. Traditional Motion for Summary Judgment. ....................................................... 8
Issues Presented........................................................................................................... 9
Issue No. 1:
Issue No. 1A:
Issue No. 1B:
Issue No. 1C:
Issue No. 2:
Issue No. 2A:
The Trial Court Erred in Granting Defendant's No-Evidence
Motion for Summary Judgment. .................................................... 9
The Trial Court Erred in Granting Summary Judgment When
the Defendant Not Only Failed to Plead the Defenses,
Defendant Failed to Make the Required Verified Denial. ............. 9
The Trial Court Erred in Granting A No-Evidence Motion for
Summary Judgment As There Was More Than a Scintilla of
Evidence That Glenny Made the Misrepresentations. ................. 12
The Trial Court Erred in Granting A No-Evidence Motion for
Summary Judgment As the Economic Loss Rule Does Not
Bar the Claim For Negligent Misrepresentation. ......................... 18
The Trial Court Erred in Granting The Traditional Motion for
Summary Judgment as Defendant Failed to Meet His Burden
and There Remain Genuine Issues of Material Fact. ................... 21
The Trial Court Erred in Granting Summary Judgment on the
Ground There Was No Vicarious Liability As Defendant
Failed to Meet His Burden of Proof and There Remain
Genuine Issues of Material Fact. ................................................. 22
ii
Issue No. 2B:
The Trial Court Erred in Granting the Traditional Motion for
Summary Judgment as Defendant Failed to Meet His Burden
of Proof and There Remain Genuine Issues of Material Fact
Whether Bank of Texas Justifiably Relied Upon the
Misrepresentations by Clint M. Glenny, II. ................................. 25
CONCLUSION ................................................................................................................. 28
CERTIFICATE OF SERVICE .......................................................................................... 29
APPENDIX ...................................................................................................................... 30
Tab 1
Order on Defendant Clint M. Glenny, II's Motion for
Summary Judgment signed September 28, 2011: CR 703
Tab 2
Order on Defendant Clint M. Glenny, II's Motion for
Summary Judgment signed September 29, 2011: CR 705
Tab 3
Final Judgment signed September 29, 2011: CR 708
Tab 4
Defendant's [Clint M. Glenny, II's] Third Amended
Answer: CR 234
Tab 5
Verification of Deposit dated January 8, 2008: CR 341
Tab 6
Glenny Letters: CR 688, 690
iii
TABLE OF AUTHORITIES
Cases
Am. Nat'l Ins. Co. v. Denke,
95 S.W.2d 370 (1936) .............................................................................................. 16, 17
Ana Inc. v. Lowry,
31 S.W.3d 765 (Tex. App. – Houston [1st Dist.] 2000, no pet.) .............................. 16, 23
Andrews v. Sullivan,
76 S.W.3d 702 (Tex. App. – Corpus Christi 2002, no pet.) .......................................... 11
Arterbury v. Am. Bank & Trust Co.,
553 S.W.2d 943 (Tex. Civ. App. – Texarkana 1977, no writ.) ..................................... 15
B. Smith Co. v. U.S. Fid. & Guar. Co.,
850 S.W.2d 621 (Tex. App. – Corpus Christi 1993, writ denied) ................................. 22
Brown & Brown of Tex. Inc. v. Omni Metals, Inc.,
317 S.W.3d 361 (Tex. App. – Houston [1st Dist.] 2010 pet. denied). ........................... 27
Bufkin v. Bufkin,
259 S.W.3d 343 (Tex. App. – Dallas 2008, pet. denied) ............................................... 14
City of Keller v. Wilson,
168 S.W.3d 802 (Tex. 2005) ..................................................................................... 8, 14
Contra: Tarrant County Hosp. Dist. v. GE Automation Services, Inc.,
156 S.W.3d 885 (Tex. App. – Fort Worth 2005, no pet.) .............................................. 11
Crowson v. Wakeham,
Cause No. 05-93-01552-CV, 1996 Tex. App. LEXIS 2158 (Tex. App. – Dallas May 29,
1996, no writ hist.) ......................................................................................................... 10
D.S.A., Inc. v. Hillsboro Indep. Sch. Dist.,
973 S.W.2d 662 (Tex. 1998) (per curiam) .................................................................... 19
DeBord v. Muller,
446 S.W.2d 299 (Tex. 1969) ......................................................................................... 10
DeWitt v. Harris County,
904 S.W.2d 650 (Tex. 1995) ......................................................................................... 14
First Interstate Bank, N.A. v. S.B.F.I., Inc.,
830 S.W.2d 239 (Tex. App. – Dallas 1992, no writ hist.) ................................................. 27
Forney 921 Lot Dev. Part. I, L.P. v. Paul Taylor Homes, Ltd.,
349 S.W.3d 258 (Tex. App. – Dallas 2011, pet. filed) .................................... 7, 8, 9, 10, 22
iv
Furmanite Worldwide, Inc. v. NextCorp., Ltd.,
339 S.W.3d 326 (Tex. App. – Dallas-2011, no pet.) ........................................................... 8
Gonzales v. Sheng Wai Brass & Metal Wares Factory, Ltd.,
190 S.W.3d 742 (Tex. App. – San Antonio 2005, no pet.) ........................................... 22
Grant Thorton LLP v. Prospect High Income Fund,
314 S.W.3d 913 (Tex. 2010) ......................................................................................... 25
Gutherie v. Suiter,
934 S.W.2d 820 (Tex. App. – Houston [1s] Dist.] 1996, no pet.) ................................. 22
Hedley Feedlot, Inc. v. Weatherly Trust,
855 S.W.2d 826 (Tex. App. – Amarillo 1993, writ denied.) ......................................... 15
Howard v. The Burlington Ins. Co.,
347 S.W.3d 783 (Tex. App. – Dallas, 2011, no pet.) ............................................ 7, 8, 22
Jobe v. Lapidus,
874 S.W.2d 764 (Tex. App. – Dallas 1994, writ denied) ............................................... 10
Johnson v. Brewer & Pritchard,
73 S.W.3d 193 (Tex. 2002) ............................................................................................. 8
Kindred v. Con/Chem, Inc.,
650 S.W.2d 61 (Tex. 1983) ............................................................................................. 8
King Ranch, Inc. v. Chapman,
118 S.W.3d 742 (Tex. 2003) ........................................................................................... 7
Merrell Dow Pharms., Inc. v. Havner,
953 S.W.2d 706 (Tex. 1997) ........................................................................................... 7
Methodist Hosp. of Dallas v. Corp. Communicators, Inc.,
806 S.W. 2d 879 (Tex. App. – Dallas 1991, writ denied). ............................................ 11
Millian v. Dean Witter Reynolds,
90 S.W.3d 760 (Tex. 2002) ........................................................................................... 17
Moore v. KMart Corp.,
981 S.W.2d 266 (Tex. App. – San Antonio 1998, pet. denied) ....................................... 9
Mukoro v. Meyer,
No. 05-10-00856, 2011 Tex. App. LEXIS 5700
(Tex. App. – Dallas, July 26, 2011, no pet.) .................................................................. 14
Nazareth International, Inc. v. J.C. Penney Co., Inc.,
287 S.W. 3d 452 (Tex. App. – Dallas 2009, pet. denied) .............................................. 14
v
Nixon v. Mr. Property Mgmt Co.,
690 S.W.2d 546 (Tex. 1985) ........................................................................................... 8
Roark v. Stallworth Oil & Gas, Inc.,
813 S.W.2d 492, (Tex. 1991) ........................................................................................ 12
Rogers v. Ricane Enterprises, Inc.,
772 S.W.2d 76 (Tex. 1989) ........................................................................................... 22
Sabine Offshore Serv., Inc. v. City of Port Arthur,
595 S.W.2d 840 (Tex. 1979) (orig. proceeding)............................................................ 22
Sci. Spectrum v. Martinez,
941 S.W.2d 910 (Tex. 1997) ........................................................................................... 8
Scottish Heritage Trust PLC v. Peat Marwick Main & Co.,
81 F.3d 606 (5 th Cir. 1996) .......................................................................................... 25
Sharyland Water Supply Corp. v. City of Alton,
354 S.W.3d 407, 2011 Tex. LEXIS 805 (Tex. 2011) ........................................ 18, 19, 20
Tex. Municipal Power Agency v. Pub. Utility Com. of Texas,
253 S.W.3d 184 (Tex. 2007) ........................................................................................... 6
Trans-Gulf Corp. v. Performance Aircraft Servs. Inc.
82 S.W.9d 691 (Tex. App. – Eastland 2002, no pet.) .................................................... 20
Valence Operating Co. v. Dorsett,
164 S.W.3d 656 (Tex. 2005) ........................................................................................... 6
Woods v. William M. Mercer, Inc.,
769 S.W.2d 515 (Tex. 1988) ......................................................................................... 12
Rules
TEXAS RULE OF CIVIL PROCEDURE 63 .............................................................................. 11
TEXAS RULE OF CIVIL PROCEDURE 93(7)................................................................ 5, 11, 13
TEXAS RULE OF CIVIL PROCEDURE 94 .................................................................... 5, 10, 11
TEXAS RULE OF CIVIL PROCEDURE 166a(c) ...................................................................... 22
TEXAS RULE OF CIVIL PROCEDURE 166a(i)..................................................................... 6, 7
vi
RECORD REFERENCES
The Clerk's Record has been filed in multiple parts with repeating page references.
Citations to the Record filed December 15, 2011 will be given as "CR ___" with reference to
a specific page in that record. Citations to the Supplemental Record filed January 23, 2011
will be given as "SCR ___" with reference to a specific page in the Supplemental Record.
vii
STATEMENT OF THE CASE
BOKF, N.A. d/b/a Bank of Texas successor-in-interest to Bank of Texas, N.A.
("Plaintiff" or "Bank of Texas") initiated this suit in the 193rd Judicial District Court for
Dallas County, Texas as a suit on a promissory note against a borrower Cindy Lantrip, Cause
No. 08-14408. During discovery and investigation, including the attempt to first interview
and then depose Appellee and Defendant Clint M. Glenny, II, Bank of Texas investigated
certain underwriting documents provided by others. This included two (2) letters provided by
The Glenny Law Firm. After receipt of an affidavit from The Glenny Law Firm, purporting
to disclose the circumstances surrounding the letters, the Bank of Texas then filed its First
Amended Original Petition on July 23, 2009 (the "Amended Petition"). CR 26. The
Amended Petition added claims of fraud and conspiracy against the borrower and three (3)
additional defendants. It also added a claim for negligent misrepresentation against Appellee
Clint M. Glenny, II, an attorney licensed by the State of Texas and another Texas attorney
William R. Ravkind.1
Shortly before the fifth trial setting, on August 12, 2011, Appellee Clint M. Glenny, II
filed his No-Evidence and Traditional Motion for Summary Judgment. CR 619. Subsequent
to the hearing on September 19, 2011, the Trial Court granted the motion without identifying
any grounds for its ruling. CR 703, 705. The Court signed the Final Judgment on September
29, 2011. CR 708.
Bank of Texas has filed this appeal from the Final Judgment and the order(s) granting
the summary judgment as to Clint M. Glenny, II.
1
Claims against Mr. Ravkind are the subject of a separate appeal in this Court, Case No. 05-11-01123-CV.
viii
REQUEST FOR ORAL ARGUMENT
Due to the complex issues arising from the claim for negligent misrepresentation, the
legal issues involved, and the relationship of this case to a related appeal, Case No. 05-1101123-CV, Appellant respectfully requests that this Court permit the presentation of oral
argument.
ix
ISSUES PRESENTED
Issue No. 1:
Issue No. 2:
The Trial Court Erred in Granting Defendant's No-Evidence Motion
for Summary Judgment.
Issue No. 1A:
The Trial Court Erred in Granting Summary
Judgment When the Defendant Not Only Failed to
Plead the Defenses, Defendant Failed to Make the
Required Verified Denial.
Issue No. 1B:
The Trial Court Erred in Granting A No-Evidence
Motion for Summary Judgment As There Was
More Than a Scintilla of Evidence That Glenny
Made The Misrepresentations.
Issue No. 1C:
The Trial Court Erred in Granting A No-Evidence
Motion for Summary Judgment As the Economic
Loss Rule Does Not Bar the Claim For Negligent
Misrepresentations.
The Trial Court Erred in Granting the Traditional Motion for
Summary Judgment as Defendant Failed to Meet His Burden and
There Remain Genuine Issues of Material Fact.
Issue No. 2A:
Judgment on the Ground There Was No Vicarious
Liability As Defendant Failed to Meet His Burden
of Proof and There Remain Genuine Issues of
Material Fact.
Issue No. 2B:
The Trial Court Erred in Granting the Traditional
Motion for Summary Judgment as Defendant
Failed to Meet His Burden of Proof and There
Remain Genuine Issues of Material Fact Whether
Bank of Texas Justifiably Relied Upon the
Misrepresentations by Clint M. Glenny, II.
x
I.
STATEMENT OF FACTS
This litigation arises from a residential construction loan by BOKF, N.A., d/b/a Bank
of Texas, successor-in-interest to Bank of Texas, N.A. ("Bank of Texas").
On February 11, 2008, Bank of Texas made a residential construction loan to
Defendant Cindy Lantrip ("Lantrip"). The loan was evidenced by a Promissory Note dated
February 11, 2008, in the original principal amount of $1,939,500.00. CR 42. As part of the
loan Lantrip executed the Contract for Improvements with Deed of Trust and Power of Sale
(the "Deed of Trust"), which pledged as security for the Promissory Note all the real and
personal property, and improvements on the land located at the street address of 4217
Colgate, University Park, Texas (the "Property"). CR 45. The contractor for the project was
Tower Custom Homes, LLC, owned and operated by Kevin Wiley.
CR 45, 51;
SCR 96:Smith Aff. ¶8. Tower Custom Homes, LLC and/or Kevin Wiley were and continue
to be a client of Defendant and Appellee Clint M. Glenny, II. SCR 280: Glenny 39:18-40:16;
SCR 277:Glenny 27:21-28:2.
The loan was presented to Jennifer Normile, a loan officer at Bank of Texas, by
Metropolitan Mortgage, a company owned and operated by Ted "Chip" Ferrier.
SCR 147:Normile Aff. ¶3. Jennifer Normile provided the initial approval of the loan and
was ultimately responsible for funding and management of the loan. SCR 146-47:Normile
Aff. ¶2. As part of the underwriting documents, Metropolitan Mortgage submitted a
Verification of Deposit signed by William Ravkind, a Dallas attorney and two (2) letters
from Appellee Clint M. Glenny, II, ("Glenny") a San Antonio attorney purporting to
substantiate Lantrip's access to the cash accounts identified in the Verification of Deposit
BRIEF OF APPELLANT
\\Bdnt-fs1\wpprolaw\1539.044\226906_3.doc
PAGE 1
(the "Glenny Letters"). SCR 149:Normile Aff. ¶11. The Verification of Deposit was dated
January 8, 2008, and identified William Ravkind, Attorney at Law, as the depository of two
(2) accounts identified under type as "trust". The Verification of Deposit identified the
accounts by account number making the following representations:
Current Balance
$713,000
$497,000
Average Balance for
Previous two months
$698,000
$484,000
Date Opened
05/05
05/05
SCR 153.
The Glenny Letters are on the letterhead of "The Glenny Law Firm", bear a signature
purporting to be that of Clint M. Glenny, II, are dated February 4, 2008, and make the
following representations:
This firm has been asked to verify certain aspects of Ms. Lantrip's
employment. Ms. Lantrip has been self-employed for more than two (2)
years. The name of her company is Lantrip Company. She does not need a
license to operate this business. Her move to Dallas will not negatively
impact her business, as she has had an office in Dallas for over two (2) years.
The business operated as a legal entity.
and
My firm has been requested to advise of the status of Ms. Lantrip's trust
accounts. Ms. Lantrip has full access to both trust accounts and she has no
limit on the amounts that she may withdraw.
SCR 154-55. Glenny, or an employee of his law firm, prepared the letters as part of its legal
representation of Tower Custom Homes, LLC and Kevin Wiley. SCR 59-61;
SCR 278:Glenny 33:8-34:1. The Glenny Letters verified that the borrower Lantrip was selfemployed and advised the "status" of her trust accounts was such that she had full access to
the $1.2 million in cash. Both Glenny Letters were addressed "To Whom It May Concern".
Both Glenny Letters show on their face that they were delivered to two (2) facsimile
BRIEF OF APPELLANT
PAGE 2
numbers. SCR 154-55. The first number, 214-975-1440 is the facsimile number for Mr.
Ferrier at Metropolitan Mortgage. SCR 186-87:Ferrier 20:4-213; SCR 190-91: Ferrier 67:968:24. Prior to creating or sending the Glenny Letters, no one at The Glenny Law Firm had
any contact with Lantrip. SCR 203:Domiguez Aff. ¶¶6, 9 and 10; SCR 230-233:Kevin
Wiley 46-49. Glenny testified that the letters were prepared as part of his attorney-client
representation of his existing client, Kevin Wiley. SCR 278:Glenny 33:8-34:1.
Prior to approving the loan to Lantrip, Ms. Normile required this documentation to
verify Lantrip had unlimited access to the $1,200,000 in trust accounts which were
represented to be on deposit with William Ravkind. SCR 149:Normile Aff. ¶11. This
process of obtaining documents through an independent mortgage company such as
Metropolitan Mortgage was a typical process for residential loan applications. As part of
that process the mortgage company who was submitting the loan would obtain the necessary
verification of assets. The loan submitted on behalf of Lantrip did not deviate from Ms.
Normile's normal practice. SCR 147-48:Normile Aff. ¶¶3, 7 and 8.
Lantrip defaulted on the Promissory Note and on November 4, 2008, Bank of Texas
foreclosed on the deed of trust. On the date of foreclosure the total payoff on the note was
$1,972,341.29. SCR 96:Smith Aff. ¶5. Bank of Texas then filed suit in the 193rd Judicial
District Court against Lantrip for the deficiency on the note.
Beginning in April 2008, Lantrip submitted a series of draw requests which were
supported by false invoices. The false invoices diverted $651,228.50 in loan proceeds to
Lantrip, her daughter Natalie Frazier and her sister Dora Nixon. CR 33-34. None of these
BRIEF OF APPELLANT
PAGE 3
funds went toward material, services or labor for the construction of improvements on the
Property.
It was also discovered that the documents supporting Lantrip's finances were false. In
discovery William Ravkind was deposed regarding the Verification of Deposit signed by
him. Ravkind testified Cindy Lantrip was a client "on a very limited basis" and solely for the
purpose of the Verification of Deposit. CR 177:Ravkind 5:4-8. At that time he testified that
the Verification of Deposit was signed by him. CR 178:Ravkind 7:13-17. William Ravkind
admitted, contrary to the Verification of Deposit, he was not the depository of any account.
SCR 243:Ravkind 50:14-22.
In the investigation of the Glenny Letters, Glenny's law office produced an affidavit
from his legal assistant representing that the letters were prepared after conference with
William Ravkind, in which he made the representation that Lantrip had full access to "all of
her trust accounts." The affidavit further stated that "The Glenny Law Firm does not have
any other information on Ms. Lantrip or at no time did our firm have any contact with Ms.
Lantrip or have any other information or file regarding this matter." CR 60-61 and SCR 5961.2
As a result the Bank of Texas filed Plaintiff's First Amended Petition, alleging claims
of negligent misrepresentation against Clint M. Glenny, II.
2
Yolanda Dominguez, who is identified as the affiant, has since denied she signed the affidavit or has any knowledge of
the activities recited in the affidavit. However, Glenny's other legal assistant Kim Wiley has testified that while she
assisted in drafting the letters and affidavit, the affidavit was signed by Ms. Dominguez who participated in the activity
identified. SCR 257:Kim Wiley:39-41. Kevin Wiley testified it was "Yolanda" who was on the telephone call which led
to the Glenny Letters. SCR 231, 233:Kevin Wiley 47:13-25, 49:11-20.
BRIEF OF APPELLANT
PAGE 4
II. SUMMARY OF ARGUMENT
Appellee Clint M. Glenny, II filed a summary judgment motion which was in part a
no-evidence summary judgment and in part a traditional summary judgment.
Glenny's summary judgment argument can be summarized into the three (3) points.
The first is that Glenny cannot be liable because he did not sign the Glenny Letters and he
did not authorize anyone to sign them for him. The second is that the claim for negligent
misrepresentation is barred by the economic loss rule. The last is that the Bank of Texas
could not have justifiably relied upon the misrepresentations in the Glenny Letters.
The Bank of Texas contends that Glenny's first point required a verified denial
pursuant to TEX. R. CIV. P. 93(7) and the economic loss rule is a plea in avoidance that must be
pled pursuant to TEX. R. CIV. P. 94. Glenny failed to plead the matter and the Court erred in
granting summary judgment on these points.
Furthermore, his no-evidence motion fails because there was more than a scintilla of
evidence that the creation and signing of the letters were within the general authority of his
paralegals in providing legal services to his clients. The actions were not utterly unrelated to
his employee's duties.
Glenny's no-evidence motion also fails because the economic loss rule does not apply
to a tort claim where there is no contractual privity between the parties. The liability arises
soley from tort. Even If the economic loss rule applies there is more than a scintilla of
evidence of damages other than the benefit of the bargain relating to a contract.
BRIEF OF APPELLANT
PAGE 5
As to his traditional motion for summary judgment Glenny failed to establish as a
matter of law that he was not vicariously liable for the misrepresentations ; that the creation
of the letters were outside the course and scope of his paralegals' employment. Even if
Glenny did meet his burden, the Bank of Texas met its burden establishing there are genuine
issues of material fact whether Glenny was vicariously liable.
Lastly, Glenny also failed to meet his burden to establish as a matter of law that Bank
of Texas could not and did not justifiably rely on the Glenny Letters. Even if Glenny did
meet his burden, the Bank of Texas met its burden, establishing there are genuine issues of
material fact whether it justifiably relied upon the letters.
The Trial Court erred in granting summary judgment. Every argument, issue and
grounds asserted by Glenny was met with probative and significant evidence contradicting
his allegations. Questions of fact, material and disputed, remain.
III. ARGUMENT
A.
Standard of Review
This case was decided by summary judgment. Glenny's motion was both a no-
evidence motion pursuant to TEX. R. CIV. P. 166a(i) and a traditional motion for summary
judgment. The propriety of a summary judgment is a question of law therefore the trial
court's decision is reviewed de novo. Tex. Municipal Power Agency v. Pub. Utility Com. of
Texas, 253 S.W.3d 184, 192 (Tex. 2007); Valence Operating Co. v. Dorsett, 164 S.W.3d
656, 661 (Tex. 2005).
BRIEF OF APPELLANT
PAGE 6
1.
No-Evidence Motion for Summary Judgment.
A no-evidence summary judgment is reviewed under the same standard as a directed
verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Pursuant to TEX.
R. CIV. P. 166a(i) a party may move for summary judgment on the grounds that there is no-
evidence of one or more essential elements of the claim upon which the adverse party carries
the burden of proof at trial. Id.; Forney 921 Lot Dev. Part. I, L.P. v. Paul Taylor Homes,
Ltd., 349 S.W.3d 258, 266 (Tex. App. – Dallas 2011, pet. filed). Such a motion must
specifically identify the elements on which it contends there is no evidence. Howard v. The
Burlington Ins. Co., 347 S.W.3d 783, 788 (Tex. App. – Dallas, 2011, no pet.). However, a
defendant cannot premise a no-evidence motion for summary judgment on an affirmative
defense, as at trial the defendant carries the burden of proof on the defense. Forney 921,
349 S.W.3d at 266.
A no-evidence summary judgment can be sustained on appeal only when "(a) there is
a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, (c) the
evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact." Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997), quoted in, King Ranch, Inc. v. Chapman, 118
S.W.3d at 751. Thus, a no-evidence summary judgment is improperly granted if the
respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of
material fact. TEX. R. CIV. P. 166a(i); Howard, 347 S.W.3d at 789. As stated by the Texas
Supreme Court:
BRIEF OF APPELLANT
PAGE 7
"The test for the application of this no-evidence/scintilla rule is if reasonable
minds cannot differ from the conclusion that the evidence offered to support
the existence of a vital fact lacks probative force, it will be held to be the
legal equivalent of no-evidence. However, there is some evidence, more than
a scintilla, if the evidence furnishes some reasonable basis for differing
conclusions by reasonable minds as to the existence of the vital fact."
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). However, the nonmovant is not
required to marshall its evidence. It only needs to point out some evidence that raises a fact
issue. Johnson v. Brewer & Pritchard, 73 S.W.3d 193, 207 (Tex. 2002).
2.
Traditional Motion for Summary Judgment.
In moving for a traditional summary judgment a defendant, such as Glenny, carries
the burden of conclusively negating at least one essential element of the plaintiff's cause of
action as a matter of law or pleading or conclusively establishing all the essential elements of
an affirmative defense. Sci. Spectrum v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997);
Howard, 347 S.W.3d at 789. It is only after the defendant meets this burden that the burden
shifts to the plaintiff to present evidence raising a genuine issue of material fact. Id.; Forney
921, 349 S.W.3d at 266. In deciding whether a genuine issue of material fact exists all
evidence favorable to the nonmovant is to be taken as true and every reasonable inference
must be "indulged in favor of the nonmovant and any doubts resolved in its favor."
Furmanite Worldwide, Inc. v. NextCorp., Ltd., 339 S.W.3d 326, 331 (Tex. App. – Dallas2011, no pet.). See also, City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005); Nixon v.
Mr. Property Mgmt Co., 690 S.W.2d 546, 549 (Tex. 1985). A genuine issue of material fact
is one in which the dispute over the fact might affect the outcome under the substantive law.
BRIEF OF APPELLANT
PAGE 8
The dispute is genuine if the evidence shows more than a metaphysical doubt. Moore v.
KMart Corp., 981 S.W.2d 266, 269 (Tex. App. – San Antonio 1998, pet. denied).
In both traditional and no-evidence summary judgment motions, the court is required
to review all the evidence and the entire record "in the light most favorable to the
nonmovant, indulging every reasonable inference and resolving any doubts against the
motion." Forney 921, 349 S.W.3d at 266.
B.
Issues Presented.
Issue No. 1:
The Trial Court Erred in Granting Defendant's
No-Evidence Motion for Summary Judgment.
Issue No. 1A:
Judgment When the Defendant Not Only Failed to
Plead the Defenses, Defendant Failed to Make the
Required Verified Denial.
Bank of Texas' sole claim against Glenny is negligent misrepresentation. CR 36
Defendant's no-evidence motion identifies three (3) grounds:
a.
No-evidence – Representation by Defendant;
b.
No-Evidence – Economic Loss (Distinct Injury); and
c.
No-Evidence – That it was within Ms. Wiley's general authority as an
employee to sign documents without Mr. Glenny's knowledge or
consent.
The first and third grounds are merely expansions of the same argument; that the
Glenny Letters were not executed by Glenny or by his authority. In this briefing they are
treated together. The representations at issue are the two (2) letters on his law firm's
letterhead, prepared by his law firm, prepared at the request of his client, and purporting to
bear his signature, the Glenny Letters. The remaining ground was that the Bank of Texas'
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PAGE 9
claim was barred by the economic loss rule. Neither defense was pled. As affirmative
defenses, a no-evidence motion for summary judgment on these grounds should not have
been entertained or granted. Forney 921, 349 S.W.3d at 266. ("A party may not file a noevidence summary judgment motion on an affirmative defense, as at trial he would have the
burden to prove the matter.").
As discussed above Bank of Texas filed its First Amended Petition asserting a claim
against Glenny on July 23, 2009. CR 26. Glenny filed his Third Amended Answer on
December 7, 2010. CR 234. Glenny had until 90 days before the fifth trial setting of
October 4, 2011, to amend his answer, assert affirmative defenses, or make any other plea in
avoidance. CR 614. No further amendments were filed before the Court ordered deadline
and on August 12, 2011, Glenny filed the motion for summary judgment which is the subject
of this appeal. The no-evidence portion of the summary judgment and part of the traditional
motion rely on matters constituting pleas in avoidance or affirmative defenses required to be
pled. TEX. R. CIV. P. 94. It is a basic accepted principle that the pleadings, the plaintiff's
petition and the defendant's answer determine the issues before the Court. Any motion for
summary judgment must be supported by pleadings. Unpleaded causes of action cannot
support summary judgment. DeBord v. Muller, 446 S.W.2d 299, 301 (Tex. 1969). "A party
may not be granted relief in the absence of pleadings to support that relief." Crowson v.
Wakeham, Cause No. 05-93-01552-CV, 1996 Tex. App. LEXIS 2158*18-19 (Tex. App. –
Dallas May 29, 1996, no writ hist.); Jobe v. Lapidus, 874 S.W.2d 764, 765 (Tex. App. –
Dallas 1994, writ denied). Though Bank of Texas raised the lack of pleading in its response
BRIEF OF APPELLANT
PAGE 10
(CR 644) Glenny did not move the trial court for leave to file an amended answer. TEX. R.
CIV. P. 63.
This suit is based on the representations in the two (2) Glenny Letters. The sole basis
for Glenny's argument that he made no representation is the claim that he did not sign the
letters and that no one was authorized to sign the letters for him. This is an affirmative
defense required to be pled by a verified pleading.
TEX. R. CIV. P. 93(7) requires any denial of the execution by a party or by his authority
of any instrument in writing, be made by a pleading verified by affidavit. In the absence of a
verified plea of denial a defendant cannot raise a lack of authority. Methodist Hosp. of
Dallas v. Corp. Communicators, Inc., 806 S.W. 2d 879, 881-82 (Tex. App. – Dallas 1991,
writ denied). Absent a verified denial the Court could not consider Glenny's claim that either
he did not sign the Glenny Letters or that they were signed without authority. Id. Because
Glenny failed to make the sworn plea Bank of Texas was not required to prove that Kim
Wiley, or anyone had the authority to sign for Glenny. Andrews v. Sullivan, 76 S.W.3d 702,
707 (Tex. App. – Corpus Christi 2002, no pet.).
Glenny's second basis for its no-evidence motion is that the claims are barred by the
economic loss rule. Bank of Texas contends, in the circumstance of this suit, reliance on the
economic loss rule is a "matter constituting an avoidance" which must be pled pursuant to
TEX. R. CIV. P. 94.3 The Texas Supreme Court has described a matter which constitutes an
avoidance as:
3
Contra: Tarrant County Hosp. Dist. v. GE Automation Services, Inc., 156 S.W.3d 885, 895
(Tex. App. – Fort Worth 2005, no pet.).
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PAGE 11
One which avows and confesses the truth in the averments of fact in the
petition, either expressly or by implications, but then proceeds to allege
new matter which tends to deprive the facts admitted of their ordinary
legal effect, or to obviate, neutral, or avoid them.
Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988). See also, Woods v.
William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988) (A plea in avoidance is one
which avoids the legal effect of a cause of action even if all elements were established).
Glenny has not pled the defense that recovery is barred by the economic loss rule.
Nor has the Bank of Texas consented to have the unpled matter tried by consent.
Defendant's failure to plead was specifically raised and asserted as grounds to deny the
summary judgment. CR 645-46, ¶¶ 22-23.
Defendant failed to place the grounds which form the basis of his summary judgment
motion before the Trial Court. In order to rely on these grounds, Defendant was required to
plead them, and plead the lack of authority by verified denial. Roark v. Stallworth Oil &
Gas, Inc., 813 S.W.2d 492 (Tex. 1991). Absent those pleadings the Trial Court could not
grant Defendant's motion whether presented as a no-evidence or traditional motion. The
Trial Court erred in doing so and should be reversed.
Issue No. 1B:
The Trial Court Erred in Granting A NoEvidence Motion for Summary Judgment As
There Was More Than a Scintilla of Evidence
That Glenny Made the Misrepresentations.
Glenny's first and third no-evidence grounds rely on the allegations that Glenny did
not sign the letters, that Kim Wiley did so without his authority or consent. These arguments
rely on evidence outside the record as such they are not properly considered under the noevidence standard.
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PAGE 12
There is no factual dispute the misrepresentations were made. As discussed above
and admitted in Defendant's motion, the Glenny Letters were prepared by Defendant's law
firm.
Various witness and documentary evidence establishes that the letters were
transmitted, first to Metropolitan Mortgage4 and then to Bank of Texas.5
However on summary judgment Glenny asserted he made no representations because
neither he nor anyone acting with his authority signed the letters. In the course of the
proceedings Glenny has been less than candid on this issue. In addition to failing to file the
verified denial required by TEX. R. CIV. P. 93(7) Glenny testified to the following:
a.
The Glenny Letters were prepared at the client's [Kevin Wiley]
instruction as part of Glenny's representation of the client as an
attorney. SCR 278-9 (Glenny 33:18-34:1);
b.
The Glenny Letters were sent as part of an attorney/client
relationship. SCR 282 (Glenny 72:1-6);
c.
Glenny's understanding of the purpose of the letters was subject
to attorney-client privilege. SCR 279 (Glenny 36:25-33:9;
d.
His "office prepared and sent" the letters. SCR 280 (Glenny
37:24-38:2); and
e.
Though he "investigated" how the letters came to be by talking
to his paralegals Kim Wiley and Yolanda Dominguez he could
not recall the response of Ms. Wiley. SCR 281 (Glenny 42:2425, 44:15-19). He has testified Yolanda Dominguez signed his
name, SCR 281:Glenny 45:5-7 and now claims Kim Wiley
signed his name. CR 822:¶8.
When specifically asked "What is your defense for not being responsible for those letters?",
Defendant, a seasoned litigation attorney stated he did not understand the question. CR
4
SCR 154-155 (Glenny Letters stated: "Sent via Facsimile to: 1-214-975-1440"); SCR 186-187, 190 (Mr. Ferrier
testified that 975-1440 is his e-fax and that the letters were faxed directly from the Glenny firm to him.)
5
SCR 149 (Normile affidavit states: "In response to my request I received the letters … dated February 4, 2008,
purporting to be from an attorney in San Antonio named Clint M. Glenny, II."); SCR 191:Ferrier 61:21-24.
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PAGE 13
283:Glenny 74:20-24. The record raises serious credibility issues regarding the version of
events spun by the Defendant. When the facts turn on the credibility of the witness, the issue
of credibility cannot be determined by summary judgment. The trier of fact is the sole
judgment of the credibility of the witnesses and the weight to give their testimony. City of
Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). A jury may believe all, some or none of
a witness' testimony. Nazareth International, Inc. v. J.C. Penney Co., Inc., 287 S.W. 3d 452,
461 (Tex. App. – Dallas 2009, pet. denied); Bufkin v. Bufkin, 259 S.W.3d 343, 355 (Tex.
App. – Dallas 2008, pet. denied).
Jurors may disregard even uncontradicted and
unimpeached testimony from disinterested witnesses. City of Keller, 168 S.W.3d at 819-20.
Even absent issues of Glenny's credibility, there is more than a scintilla of evidence
that the creation, execution and delivery of the Glenny Letters were within the course and
scope of Glenny's employees' authority, actions of The Glenny Law Firm, therefore
Defendant Glenny. Texas courts do not differentiate between the liability a legal employer
has for its employees from that of a general employer. Mukoro v. Meyers, No. 05-10-00856,
2011 Tex. App. LEXIS 5700, *4-7 (Tex. App. – Dallas, July 26, 2011, no pet.). An attorney
who is an employer is liable for his employee's negligence when the employee, acting within
the scope of his employment, is the proximate cause of injury. DeWitt v. Harris County, 904
S.W.2d 650, 654 (Tex. 1995).
By his own testimony Glenny has admitted that the negligence, the creation,
execution, and transmittal of the Glenny Letters, was part of his office's legal representation
of his client Kevin Wiley and Tower Custom Homes LLC. SCR 278-9:Glenny 33:18-34:1,
SCR 282:Glenny 72:1-6. Kevin Wiley had been a client for at least five (5) years. SCR
BRIEF OF APPELLANT
PAGE 14
280:Glenny 30:18-40:16. Additionally, Ms. Dominguez testified it was within the scope of
the paralegals' employment to sign letters and pleadings with Glenny's name, and this was
particularly true of Ms. Wiley. Ms. Dominguez testified it was not uncommon for Ms.
Wiley to sign Glenny's name. Glenny had never objected to the paralegals signing letters in
his name, "letters of protection, other demand letters or things of this nature." However, the
only one authorized to sign Glenny's name to pleadings was Kim Wiley.
SCR 213:Dominguez 28:18-19; SCR 216:Dominguez 48:24-49:2; SCR 217:Dominguez
51:21-52:16.
Kim Wiley herself admitted she regularly signed Glenny's name.
SCR 256:Wiley 37:2-17. When Wiley described her employment tasks she stated there was
not anything with a "specific designation", "You do what you have to do." SCR 258:Wiley
43:18-25. When Glenny required correspondence to be drafted "He would look at it, that
type thing. He'd say, Yeah looks good, send it out, and I would just sign it and send it out."
SCR 259: Wiley 47:4-20. The record establishes it was a regular routine to affix Glenny's
signature to various documents.
Glenny's defense relies solely on his statement that he did not authorize Ms. Wiley to
sign these two (2) letters. However, it is no defense to claim the employee was not
authorized to take the particular action at issue, sign and send these particular letters. Hedley
Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 837 (Tex. App. – Amarillo 1993, writ
denied.)("[T]he principal cannot escape liabilities for the acts of his agents by simply saying
the agent lacked authority to do the particular act."); Arterbury v. Am. Bank & Trust Co., 553
S.W.2d 943, 949 (Tex. Civ. App. – Texarkana 1977, no writ.)("If an agent is acting within
the scope of his general authority, his wrongful act, though unauthorized will nevertheless
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PAGE 15
subject his principal to liability."). If an employee acts within the scope of his/her general
authority, the wrongful act, although not authorized, will subject the employer to liability.
Arterbury, 553 S.W.2d at 949.
An employee's scope of authority is generally defined as those actions an employee
takes in furtherance of the employer's business. The test to determine an employer's liability
for the acts of its employees is whether on the occasion in question the employer had the
"right and power to direct and control [the employee] in the performance of the causal act or
neglect." Am. Nat'l Ins. Co. v. Denke, 95 S.W.2d 370, 373 (1936). The inquiry centers on
whether the act, if performed properly, is part of an employee's general authority: whether
the employee's action was a misuse of authority or utterly unrelated to the employer's duties.
The employer is liable for the former not the latter. The parameters of an employee's
liability is most clearly illustrated in determinations of liability for employee assaults. The
issue is whether the employee steps out of his/her duties as an employee, ceasing to act for
the employer and acts in pursuit of his own business or pleasure. Ana Inc. v. Lowry, 31
S.W.3d 765, 770 (Tex. App. – Houston [1st Dist.] 2000, no pet.). In Lowry, the 1st District
Court of Appeals reviewed a number of cases regarding liability for an employee's assault
which looked to whether the employee's actions "were entirely unrelated to their respective
duties.", or whether the conduct "stems directly from the employee's exercise (however
inappropriate or excessive) of a delegated right or duty." Id. at 669-70.
As described above, Defendant admits the Glenny Letters were prepared as part of the
law firm's representation of Kevin Wiley, and that Ms. Wiley and Ms. Dominguez were
employed by him as paralegals. SCR 273:Glenny 11:4-18. Ms. Wiley was Glenny's legal
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PAGE 16
assistant and his secretary. Id. Ms. Dominguez was also a paralegal. SCR 274:Glenny
17:11-18:6. All the mail received was directed to and handled by the paralegals. They were
responsible for handling all mail relating to the legal representation of the firm's clients.
SCR 275:Glenny 21:1-16. If Glenny was out of the office his calls were directed to the
paralegals. SCR 276:Glenny 23:23-24-12. Ms. Dominguez testified that the paralegal's
responsibility included affixing Glenny's signature to correspondence and even pleadings. It
was common for Ms. Wiley and Ms. Dominguez to sign on behalf of Glenny. SCR
213:Dominguez 29:7-19, SCR 216:Dominguez 48:24-2; SCR 256:Wiley 37:2-17. Ms.
Wiley frequently signed pleadings for Glenny. SCR 217:Dominguez 51:21-52:16. Ms.
Wiley admitted she regularly not only signed letters on Glenny's behalf, but that letters were
primarily signed by the paralegals. SCR 259:Wiley 47:4-20. The issue is not whether the
Glenny Letters were signed without Glenny's express authority. The issue is whether the
conduct of signing his name to correspondence was in his power and right to control and was
it closely connected to the employee's authorized duties. Am. Nat'l Ins. Co. v. Denke, 95
S.W.2d 370, 373 (Tex. 1936); GTE Southwest Inc. v. Bruce, 998 S.W.2d 605, 618 (Tex.
1999). Glenny has admitted the action, the creation and transmittal of the Glenny Letters
were part of his legal representation of a client, the object of Ms. Wiley and Ms.
Dominguez's employment. Millian v. Dean Witter Reynolds, 90 S.W.3d 760, 767-68 (Tex.
2002). The evidence establishes that signing his name to correspondence and even pleadings
was part of the paralegals' regular tasks.
There was clearly more than a scintilla of evidence that the Glenny Letters were
representations of Defendant Glenny and that to the extent he contends it was the act of Ms.
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PAGE 17
Wiley, he is vicariously liable for the actions and conduct of the employees in his law firm,
during the course of his business, the legal representation of a client.
Issue No. 1C:
The Trial Court Erred in Granting A NoEvidence Motion for Summary Judgment As the
Economic Loss Rule Does Not Bar the Claim For
Negligent Misrepresentation.
Glenny contends the economic loss rule bars the Bank of Texas' claim for negligent
misrepresentation. In doing so, Glenny incorrectly applies the economic loss rule.
Subsequent to the trial court's ruling on the summary judgment motion the Texas
Supreme Court attempted to bring some clarity to the economic loss rule stating:
[W]e have applied the economic loss rule only in cases involving
defective products or failure to perform a contract. In both of those
situations, we held that the parties' economic losses were more
appropriately addressed through statutory warranty actions or
common law breach of contract suits than tort claims. Although we
applied this rule even to parties not in privity (e.g., a remote
manufacturer and a consumer), we have never held that it precludes
recovery completely between contractual strangers in a case not
involving a defective product – as the Court of Appeals did here.
Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, ____ 2011 Tex. LEXIS 805
*25 (Tex. 2011). In Sharyland, the plaintiff sought recovery against the defendant, who
under contract with the City, negligently installed sewer lines that violated safety codes and
threatened contamination of the water lines owned by the plaintiff. The Texas Supreme
Court reversed the Court of Appeals' ruling that the economic loss rule barred the plaintiff's
negligence claim. The Texas Supreme Court stated:
To say that the economic loss rule "preclude[s] tort claims between
parties who are not in contractual privity "and that damages are
recoverable only if they are accompanied by "actual physical injury
or property damage," overlooks all of the tort claims for which courts
have allowed recovery of economic damages even absent physical
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PAGE 18
injury or property damage. … Among these are negligent
misrepresentation.
….
Sharyland, 354 S.W.3d at ___, 2011 Tex. LEXIS 805 **26, 27 (citations omitted and
emphasis added). Merely because there may be a contract involved "does not mean that a
contractual stranger is necessarily barred from suing a contracting party for breach of an
independent duty." Sharyland, 354 S.W.3d at ____, 2011 Tex. LEXIS 805*30.
Negligent misrepresentation pursuant to the RESTATEMENT (SECOND) OF TORTS is a tort
claim for recovery of economic loss, which arises from an independent legal duty separate
from the existence of any contract. In this suit, the Defendant Glenny is not the party to any
contract. He has no duties, obligations or rights imposed or created by contract. His duty, if
any, is imposed solely by an independent tort duty.
As discussed above, the economic loss rule does not apply to parties "without even
remote contractual privity" as presented here. Sharyland, 354 S.W.3d at ___, 2011 Tex.
LEXIS 805 *34.
However, the Texas Supreme Court has applied it to negligent
misrepresentation claims between parties who are in contractual privity. D.S.A., Inc. v.
Hillsboro Indep. Sch. Dist., 973 S.W.2d 662, 663 (Tex. 1998) (per curiam). Any reliance on
D.S.A. is misplaced in this case. The case arose from a construction contract between the
plaintiff school district and the defendant contractor. In D.S.A. the Court held that parties
with a contractual relationship must show an "injury independent from the bargained for
performance of the contract." Id., at 665-64.
Unlike D.S.A. and the cases cited therein, the duties imposed on Glenny and the
damages sought do not arise from any contractual relationship with Glenny. Glenny has not
BRIEF OF APPELLANT
PAGE 19
and cannot point to a contract which created or gave rise to his duty. His liability lies solely
in tort. Since there is no contract between Glenny and the Bank of Texas the damages
sought are not the benefit of any such contract.
Glenny also mistakenly relies on the pre-Sharyland case of Trans-Gulf Corp. v.
Performance Aircraft Servs. Inc., 82 S.W.9d 691 (Tex. App. – Eastland 2002, no pet.) for the
proposition the economic loss rule bars the Bank of Texas' claim. However, in Trans-Gulf
Corp., the court addressed two separate and distinct claims, negligence and negligent
misrepresentation. The court held that the plaintiff's negligence claim was barred by the
economic loss rule. It did not find plaintiff's negligent misrepresentation was barred by the
economic loss rule, nor did it require or address whether a "separate and distinct injury" was
required where there was no contract between the parties. It remains an open issue whether
this ruling survives Sharyland.
Bank of Texas contends and asks this Court to find that since it lacks even a remote
contractual privity with Glenny no injury independent of a contractual breach is required.
However, if such an analysis is applied there is more than a scintilla of evidence that such an
injury exists.
The Bank of Texas is seeking recovery for the pecuniary loss suffered as a
consequence of its reliance upon Glenny's misrepresentations.
In reliance on the
misrepresentations the Bank of Texas made a loan to Lantrip. Bank of Texas suffered losses
due to fraud, violation of the theft liability act as well as losses due to the borrower's breach
of contract. CR 26:¶¶35-40, 45-47, 51-53. The benefit of the contract in this case would be
the repayment of principal and interest on the promissory note. The borrower, Lantrip, is
BRIEF OF APPELLANT
PAGE 20
obligated for the full deficiency after foreclosure plus accruing interest and attorney fees.
However, the borrower under the promissory note is not liable for pecuniary losses arising
from completion of construction, taxes and insurance on the property. Nor is the borrower
entitled to an offset if and when the property is sold.
The measure of damages sought from Glenny is all pecuniary losses, which in this
instance entitles the Bank of Texas to recover additional costs and expenses, but also entitles
Glenny to certain offsets. In addition, no attorney fees are recoverable.
The evidence presented by way of the affidavit of Mr. Smith. SCR 247. If the Bank
of Texas was seeking to recover the deficiency on the loan, the damage claim would be the
deficiency after foreclosure of $1,332,341.00 plus interest accruing since November 4, 2008,
as provided by the terms of the Promissory Note. CR 248:Smith Aff. ¶6. However, Bank of
Texas seeks recovery of its pecuniary loss on the transaction, expenses incurred to complete
construction, taxes, funds it was required to pay third parties to release the liens. Defendant
is then given an offset for funds received from the sale of the property. SCR 248:Smith Aff.
¶7-8. These are charges and credits not used in determining the deficiency due on the note.
Issue No. 2:
The Trial Court Erred in Granting The
Traditional Motion for Summary Judgment as
Defendant Failed to Meet His Burden and There
Remain Genuine Issues of Material Fact.
In addition to his no-evidence motion for summary judgment, Glenny also sought a
traditional motion for summary judgment on two (2) grounds. The first is his argument that
there is no vicarious liability Ms. Wiley signing the Glenny Letters, Glenny contends there is
no genuine issue of material fact that he has liability for that conduct. The second is that
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PAGE 21
there is no genuine issue of material fact that Bank of Texas justifiably relied upon Glenny's
misrepresentations.
Issue No. 2A:
Judgment on the Ground There Was No
Vicarious Liability As Defendant Failed to Meet
His Burden of Proof and There Remain Genuine
Issues of Material Fact.
Under TEX. R. CIV. P. 166a(c) Glenny's burden is significantly different. As movant he
carried the burden of establishing as a matter of law that an essential element of Plaintiff's
claim failed. It is only if this burden is met that the burden shifts, requiring the Bank of
Texas to present evidence that demonstrates a genuine issue of material fact. Forney 921,
349 S.W.2d at 266; Howard v. Burlington Ins. Co., 347 S.W.2d at 789. In addition, Glenny
was required to identify the specific evidence on which he relies. Rogers v. Ricane
Enterprises, Inc., 772 S.W.2d 76, 81 (Tex. 1989); Gonzales v. Sheng Wai Brass & Metal
Wares Factory, Ltd., 190 S.W.3d 742, 746 (Tex. App. – San Antonio 2005, no pet.);
Gutherie v. Suiter, 934 S.W.2d 820, 826 (Tex. App. – Houston [1s] Dist.] 1996, no pet.). On
summary judgment the court may not consider matters found outside the court's official
record. Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979)
(orig. proceeding). While unfiled discovery may be used, the relying party must present the
specific language or testimony upon which the movant relies. E.B. Smith Co. v. U.S. Fid. &
Guar. Co., 850 S.W.2d 621, 623-24 (Tex. App. – Corpus Christi 1993, writ denied).
In support of his motion for summary judgment, Defendant Glenny only attached
three (3) pages of his own deposition. While he referenced the deposition of Ms. Wiley, he
neither attached her testimony nor provided the Court the specific language or testimony on
BRIEF OF APPELLANT
PAGE 22
which he relied. While Glenny globally stated he was relying on evidence previously filed
by another defendant (Ravkind) his briefing did not identify the information, evidence, or
testimony on which he was relying. The only evidence presented by Glenny and before the
Court was the three (3) deposition pages from his deposition.
As stated above, Glenny carried the burden of establishing as a matter of law that Ms.
Wiley's creation and signing of the letters was outside the course and scope of her
employment with Glenny. His sole evidence on this point is his testimony that she did not
have the authorization to sign his name. CR 634-35:Glenny 38:15-39:2; CR 636, Glenny
45:18-20.6 Even that is left open to question when asked if he authorized anyone to send the
letters he did not say no. He responded, "I don't believe so." CR 636:Glenny 45:18-20.
As discussed above, the issue is not whether the particular conduct was authorized.
Hedley Feedlot, Inc., 855 S.W.2d at 837. The question is whether the actions were within
Ms. Wiley's general authority. The conduct was outside her general authority only if it was
entirely unrelated to her duties. Ana Inc, 31 S.W.3d at 770. Even if the Court were to
consider Ms. Wiley's testimony that she was not authorized to sign the letters, this fails to
conclusively establish as a matter of law she acted outside the course and scope of her
employment.
Glenny failed to establish his right to summary judgment as a matter of law. The
burden never shifted to Plaintiff and the trial court erred in granting summary judgment on
these grounds.
6
In fact there is no evidence in the record that Ms. Wiley signed the Letters.
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PAGE 23
Even if this Court determines Glenny met his burden, the Bank of Texas met its
burden presenting evidence raising a genuine issue of material fact whether the actions were
within the course and scope of Ms. Wiley's employment. As discussed in response to
Defendant's no-evidence motion, the record establishes the following:
a.
The Glenny Letters were prepared at a client's instruction as part of
Glenny's legal representation of his client. SCR 278-9:Glenny 33:1834:1;
b.
The creation and transmittal of the Glenny Letters were part of an
attorney-client relationship. SCR 282:Glenny 36-25-37:9;
c.
Glenny's "office prepared and sent" the letters. SCR 280:Glenny
37:24-38:2;
d.
Ms. Dominguez and Ms. Wiley were employed as paralegals by
Glenny. SCR 273:Glenny 11:4-18; SCR 274:Glenny 17:11-18:6.
e.
Ms. Dominguez and Ms. Wiley regularly affixed Glenny's signature to
documents in the course and scope of their employment. SCR
213:Dominguez 28:18-29:00; SCR 217:Dominguez 51-21-52:16; SCR
256:Wiley 37:2-17; SCR 259:Wiley 47:4-20.
Each of these facts must be taken as true, and any doubts must be resolved in favor of
the Bank of Texas. Furmanite Worldwide, Inc., 339 S.W.3d at 331. Clearly, the record
establishes much more than a metaphysical doubt that Ms. Wiley signed the letters within the
course and scope of her employment. Moore, 981 S.W.2d at 269. The Trial Court erred in
granting Glenny's motion on these grounds and the summary judgment should be reversed.
BRIEF OF APPELLANT
PAGE 24
Issue No. 2B:
The Trial Court Erred in Granting the
Traditional Motion for Summary Judgment as
Defendant Failed to Meet His Burden of Proof
and There Remain Genuine Issues of Material
Fact Whether Bank of Texas Justifiably Relied
Upon the Misrepresentations by Clint M. Glenny,
II.
Once again, as a traditional motion for summary judgment Glenny carried the burden
of establishing that as a matter of law, Bank of Texas did not justifiably rely upon the
misrepresentations. Justifiable reliance has two elements (1) actual reliance and (2) the
reliance must be reasonable. Grant Thorton LLP v. Prospect High Income Fund, 314
S.W.3d 913, 923 (Tex. 2010). It is undisputed, Ms. Normile, the loan officer, actually relied
upon the letters. As she testified by affidavit: "One of the key aspects of any loan transaction
and a key aspect in this loan transaction was the verification of the assets of the borrower
Cindy Lantrip …". The letters were one of "two critical asset verifications." "I relied upon
the February 4, 2008, letters from the Glenny Law Firm. If I had not received those letters,
or if I had been provided information that the letters were not true … I would not have
approved the loan to Cindy Lantrip." SCR 149, 150:Normile Aff. ¶¶ 11, 13.
Glenny's argument appears to be that the reliance is not reasonable. Yet Glenny does
not offer any evidence that the reliance was unreasonable. The only evidence referenced or
attached to the motion is the testimony of Glenny and Kim Wiley, all relating to Ms. Wiley's
authority. Glenny seems to argue Bank of Texas was negligent and relies upon Scottish
Heritage Trust PLC v. Peat Marwick Main & Co.7for the proposition that negligence
precludes justifiable reliance on the letters. However, no evidence is offered to establish that
7
81 F.3d 606 (5 th Cir. 1996).
BRIEF OF APPELLANT
PAGE 25
as a matter of law the Bank of Texas was negligent. Glenny failed, and did not even attempt,
to meet its burden to establish the lack of justifiable reliance as a matter of law. The burden
to produce evidence of a genuine issue of material fact never shifted to Bank of Texas. As a
result, the trial court erred in granting the motion for summary judgment on these grounds.
Additionally, these grounds had been previously presented in a motion filed October
4, 2010, in which Glenny sought a no-evidence and traditional summary judgment on the
grounds (among others) that there was no loss resulting from justifiably relying on the
letters. CR 82-87. The trial court denied the motion on November 10, 2010. CR 233. No
new evidence was presented with Glenny's motion, and the trial court's prior ruling should
stand.
Even if this Court were to find Glenny met his burden, and the Bank of Texas was
required to produce evidence of a genuine issue of fact on the issue, it has done so.
The Glenny Letters were provided by his office to the mortgage company to verify the
borrower's assets. SCR 186-87:Ferrier 20:7-21:3. The mortgage company provided the
letters to Bank of Texas. SCR 191:Ferrier 68:21-24. The letters were created and received
in response to Ms. Normile's request regarding Lantrip's access to the trust accounts. SCR
25:Normile ¶5, SCR 30-31. The letters are on a real law firm's letterhead. The wording of
the letters causes one to believe Lantrip was a client of the firm. The letters confirm Lantrip
(1) has a trust and (2) she has access to the trust accounts. There is nothing on the face of the
Glenny Letters, or about how the documents were obtained, that would place Ms. Normile
on notice that the Glenny Letters were a lie.
BRIEF OF APPELLANT
PAGE 26
The evidence further establishes that the loan was processed and approved in the
typical manner. The typical practice was for the mortgage company to acquire information
requested as part of a loan it was presenting to Bank of Texas. SCR 148, Normile Aff. ¶8.
Normile believed her reliance was reasonable: the letters were from an attorney and they
were not the sole asset verification. The letters were a secondary verification to information
already received. SCR 149:Normile Aff. ¶11. While Glenny argues the "substance of the
letters" demonstrates they could not be relied upon, there is no evidence why the letters, if
true, would not reasonably substantiate the borrower's access to her cash accounts. There is
nothing in the substance of the letters which gave notice to Bank of Texas that they or the
Verification of Deposits were lies.
If Glenny's argument is that the Bank of Texas did not rely solely on the Glenny
Letters, his argument fails. That is an issue of proximate cause, a question of fact
particularly within the province of the jury. First Interstate Bank, N.A. v. S.B.F.I., Inc., 830
S.W.2d 239, 246 (Tex. App. – Dallas 1992, no writ hist.). In order to be the proximate cause
of injury, the misrepresentation need not be the sole cause of the harm. Brown & Brown of
Tex. Inc. v. Omni Metals, Inc., 317 S.W.3d 361, 389 (Tex. App. – Houston [1st Dist.] 2010
pet. denied). As in Omni Metals, the Bank of Texas was not required to go behind the
representations made and independently verify the information. In Omni Metals, the
defendant argued that plaintiff could not have reasonably relied upon a certificate of
insurance when the plaintiff had not requested and read the underlying insurance policy. Id.
The court held the plaintiff had no legal duty to obtain and read the policy. This was true
even though the certificate of insurance contained a disclaimer. The letters at issue have
BRIEF OF APPELLANT
PAGE 27
nothing akin to a disclaimer and no "red flags" placing the Bank of Texas on notice of the
misrepresentation. The evidence establishes that Bank of Texas did and could justifiably
rely on the Glenny Letters.
The trial court erred in granting summary judgment on these grounds.
CONCLUSION
The Trial Court erred when it granted Clint M. Glenny, II's motion for summary
judgment, both on the no-evidence portion of the motion and the traditional summary
judgment motion.
Appellant Bank of Texas respectfully requests that this Court reverse and set aside the
final judgment in favor of Glenny and the Trial Court's Order granting summary judgment
and that this matter be remanded for trial.
Respectfully submitted,
/s/Barbara L. Emerson
Barbara L. Emerson
BELLINGER & DeWOLF, LLP
Dallas, Texas 75231
Telephone: 214/954-9540
Facsimile: 214/954-9541
[email protected]
ATTORNEYS FOR APPELLANT
BOKF, N.A. d/b/a Bank of Texas,
successor-in-interest to Bank of Texas,
N.A.
BRIEF OF APPELLANT
PAGE 28
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this brief was served on all parties listed below
by certified mail, return receipt requested on the 13th day of February, 2012, with an
electronic copy sent via email, facsimile and certified mail, return receipt requested to
Richard Woods and via facsimile and certified mail, return receipt requested as Mr. Crist has
no known email address:
VIA EMAIL
Richard Woods, Esq.
3123 N.W. Loop 410
VIA FACSIMILE
William D. Crist, Esq.
3123 N.W. Loop 410
Facsimile: 210-640-3290
/s/Barbara L. Emerson
Barbara L. Emerson
BRIEF OF APPELLANT
PAGE 29
APPENDIX
Tab 1
Order on Defendant Clint M. Glenny, II's Motion for Summary
Judgment signed September 28, 2011: CR 703
Tab 2
Order on Defendant Clint M. Glenny, II's Motion for Summary
Judgment signed September 29, 2011: CR 705
Tab 3
Tab 4
Defendant's [Clint M. Glenny, II's] Third Amended Answer
CR 234
Tab 5
Tab 6
TAB 1
Order on Defendant Clint M. Glenny, II's Motion for Summary Judgment signed
September 28, 2011: CR 703
0J.18J
~0.
B~'l( OF TEXAS, N.A.
Plaintiff,
V.
CINDY LAJ"fTRJP, SID:SEY BRASS
WILLIA~ RA VKlND CLil'l ~
GLE~, II, DORA L YN:S :"!!XON
AIKJA LYNN NIXON AND NATALIE
FRAZIER
IHfeudant.
08-14408
§
§
§
§
§
§
§
§
§
§
§
I~ THE DISTRJCT COURT
193 JliDICIAL DISTRICT
OF DALLAS COIDII"TY, TEXAS
ORDER ON DEFVIDA.''ol CU:"Itl M. GLENNY. II'S
:\lOTION FOR St:MMARY JVDG)IE"I
On lfl.i5 uy or Septe•ber 19, 2011 the Court m1sidered the Defendant CLINT \1.
GL£N'.iY, Irs Traditional and Ko Evidence MotiollS for Slliillilary Judgment against Plaintiff
Bank of Texas, N.A Plaintiff and Defendant CLINT \1. GLB-iNY. !I <~ppeared through their
attorneys of record. The parties then announced ready on their motions.
Having considered the ~idence of record before the court, pleadings presented and the
argument of counsel, the court has determined that the Defendant CLINT \1. GLThNY, II 's
Trad:tiona! and Ko Evidence Motions for Summary Judgment against Plaintiff Bank of Texas,
:"'.A. • should be granted;
IT IS THEREFORE ORDERED that both Defendant CLINT M. GLE~Y. II's Traditional
iiild :-.lo Evidence Motions for S=ary Judgment against Plaintiff Bank of Texas are in ali
things GRA.c'ITED.
IT IS Fl.'RTHER ORDERED that this order constitutes a final judgment in this cause and is
appealable.
All relief requested in this case bew.een Plaintiff and Defendant
expressly granted is hereby denied.
Signed on the
Jr day of September 20 I I
CLI~T M. GLD.~Y.
II not
~DGE~~
P'age 1 of Z
703
,
...
Approved to as form
WILLIAM D. CRIST
State Bar No 24043614
3123 N.W. Loop410
Telephone: (210) 340-3277
Telecopier: (21 0) 372-0400
Co Counsel for Defendant Client M. Glenny II
3123 N.W. Loop410
Telephone: (210) 615-7779
Telecopier: (210) 615-7667
Co Counsel for Defendant Client M. Glenny II
BARBARA EMERSON
I 0,000 North Central Expressways
Dallas Texas75231
Telephone: (214) 954-9540
Telecopier: (214) 954-9541
Attorney for BANK OF TEXAS, N.A.
Page 2 of 2
704
TAB 2
Order on Defendant Clint M. Glenny, II's Motion for Summary Judgment signed
September 29, 2011: CR 705
•
•
•
3
C.\ rs E "iO. OS-I.t-W8
BA"iK OF TEXAS."! ...\ ..
I:"i THE DISTRICT CO CRT
5~:;J.L
Plaintiffs.
v.
CI"iDY LA:"iTRIP, SID'iEY BR.\SS.
WILLJA)I R.\ VKI:"iD, CLI'iT -'1.
GLDiVl, II, DOR.\ L Y:"i:"i 'iiXO'i
a!k/a L Y:"i:"i 'iiXO'i and 'iA TALI£
FR.\ZJER
DALLAS COC:"iTY. TEXAS
I93'd Jt:DICIAL DISTRICT
Ddendants.
ORDER O"i DEFE"iDANT CLI"iT )1. GLE:"il'iY.II'S
MOTIO'iS FOR SUHIARY JlDG,IE."iT
On th<: da;- o:· Septemb.:r 19. 2011 the Court constdered the Defendant CU'-."T \!.
Glenny. ll'"s Traditional :1t1d :-;o Evid<:nce \lot1ons for Summary Judgment against Plaintiff Bank
of Texas. "i.A..
Plamtitl and Defendant CU:-.iT \!. GLE.-..'IY. II app.;ared through their
attomevs of record. The part1es then announced readv on their motwns.
Havrng constdered the evidence of record be:·ore the court. pkadmgs presented and the
argument of cou.."lsel. the court has Jete11:1m<:d that the D<!fer:dant CL!:\T \!. GLE'-.--:\Y. Irs
TmdJtional and 'io Ev1dence \lotions for Summary J udgm<!nt against Plaint1tT Bank ofT exas.
:-;.A should b.; GR.-\:"HEDc
IT IS THEREFORE ORDERED that both Defendant C:int \! Glenny. Irs Tradinonal
all thmgs GR.-\:\TED.
All rel1cf requested in this caS<! between Plaintiff and Defendant CLI:\T \1. GLEl\.c-;Y. II
not expressly gr-L'1ted is hereb' d.:nted.
ORDER O"i DEFE.'iDA.'ol CU'iT :'1-1. GLE'i'iY.II'S
:'I-10TIO"iS FOR SL:'\-1:'1-1..\RY JUDG:'I-1E'iT
··\DdnHS!..,wpprciaw'.i 53-'t
Q.W'-..:::5::
Joe
-PAG£ I
705
SIG'\ED THIS
•
-4
cav of
5;!cvrfrr ,
•
::0 l l.
CA.
L Em.:rson
Sure Sa: '\o. 06599400
Justm J. Kuc~
State BCU" '\o. 24044555
BELLI'\GER & DeWOLF. LLP
!0.000 '\orth Centnll Express;,ay. Sutt.: 900
Dallas. Texas 7 5::3 I
12141954-95..10- Telephone
i.:: !41 954-954 I - Facsu;ule
berr:erson. a:bd-law. com
j koch.~ bd-law. co:::
.~ TTOR"iEY FOR PL\J"iTIFF
BOKF. "i.A. d!b/a Bank of Texas.
successor-in-interest to Bank of Texas. "i.A.
RlchCU"d Woods
State BCU" '\o. :: l 96S500
312.3 '\ W Loop 4!0
San Antoruo. Texas ~8231)
Telephone: i:: lO I 6 I 5-7779
Facsim1le: 121 I) 1615-766 ~
Co Counsd tGr Odectdant Cliett \t Gknnv II
Wiliram 0 Crist
State BCU"'\o. 240-+3614
31n '\ w. Loo;c .1:0
San An:GniG. Texas 78230
Td.:phon.: r21iJI 340-3::~;
Fac srmik: 1 ::: lO I 3;::: -0-+00
Co CGur:sel for Defendant (!tnt\! Glennv [[
ORDER OC'i DEFE:"-uA.'iT CU:\1 :1-1. GI.E.'I-::\1. II'S
:1-IOTIOC'IS FOR SC:I-1:1-I.~Y Jt-uG:~>IE:\1
b..!nt-;S: wcrj:rdaw· . .;; ~q.
:~.w:
..:::::-1
·lt:o.:
-
P.-\G[
Z
706
.
F·om. 2' cs· 57667
'
sa..U!'GER
eg;zs;zau ag:4S FAX UJ .SH1
SIG!'-."ED mrs
Pace 313
Date 9129/20. • g 1 824
r.
~-~o"
""!
- -------'
.~M
llEWOi..F •
20"1
•••
CARL GDISBERG. Jt.JD<E PRES!DrNG
APPROVED .'-5 TO FOR~:
Barbaa L. Ewe:son
State Bar ~o. 06599400
1asti.:d. Koch
State Bor ~o. 2~44555
BELL.!NGER & :::>eWOLF, LLP
I 0,000 :-iorth Central Expre5S"''aY, Suite 9QO
Dallas, Te:us 75231
(214) 954-95 40 - Telep.t:one
(21~) 954-9541- F~
b==@bd--!...'"W.COm
[email protected]
ATIO'Rl'"EY FOR P~"TIFF
BOKF, N..A. d/bla Baak of Texas,
svcussor-ill-mterest to Bank of T ex:u, S .A.
~ ~ l..lff"·••':.
-"'v
Ricba:d Wocds
Stm: Bar r-oo 21%8500
3!23 KW.IAxlp 410
Sm .~o. Texas 73230
:-eleplwne: (ZlO) 615-7779
Facsimile: (2:0)615-7667
Co Cmmsel fc; D~lia."''t Ciinr M. Glenny II
-::;-w~f?»:--==,a:n~:J.-==C:rist~~=-~-'----'~0::::...::..:--=:oyr~
State Bl!!' No. 24043cl4
3!23 ~.w. Loop 410
Sen Al:!!ocio, !=us 78230
Telepb.== (210) :.:c.Jzn
Facsimile: (210) 372-040C
Co Cet:n.Sel t'o: Deflmdant Cl.i!!t M. Gl=r li
.
ORDER ON DEFE:\'DA.'"T CLI:'I"T M. GLE."'":'<"Y, D'S
MOTIONS FOR st'MMARY reDGME:'I"T
\~!'·~aMl.D~.::44'..n2~1.acc
-!'AGEl
707
TAB 3
•
•
4
C-\lSE 'iO. 08-14408
I:"i THE DISTRICT COlRT
BA'iK OF TEXAS. 'i.A.,
Sd,1L
Plain tiffs,
'·
D.-\LL.-\S COt::"iTY. TEXAS
CI"iDY LA:"'TRJP, SID'iEY BR-\SS,
WILLtUI R-\ VKI'iD. CLI'iT ,1.
GLE'i:"'Y, II. DOR-\ L Y'i:"i 'IIXOC'Ii
a/k!a L'\ ":"1:"1 'iiXOC'Ii and :'lOA TALIE
FR-\ZIER
193nl JUDICIAL DISTRICT
Defendants.
FI:"'AL JLDG"ENT
f'-lc Court h:l\mg
a.
pr~':ouslv
stgned and entered the followmg:
0:-1 \lay :3. 20 I L
th~
Order Grunting De.fenJanl
~Villi am
Ruvkind's
.tfotionJUr Sevt:runce Lznd Final Judgmenf:
b.
On September I 2, 20 I I. Order Grantrng Summar.> Jadgmem as ro
De(endanr Sidnev Brass:
c
On September I 9. :::0 I I. Agret!d !ntl!rlocwun Jadgmem as ru Deti:ndan!s
Cinu:1~ Lan!np. Dora .Vixurr u. 'k. ·a Dura Bt!hlash ond .Vutuii~ Fra=il!r ::!nd
d.
On September _ . 20 I I. Orda on
Der~ndam
Clinr Jt Glmnv. !!'s
Jtunorrlor Summary Judgmem:
and. that as a result of the J.bove-tdentified orders all claims and defenses as to all parties he1vwg
been disposed of. the Court enters a tinal ;udgment as fo!lows
It
r:;
here:Cv ORDERI::IJ. A.DJL DGED .-\:"0 DECREED th:1t PL!rnntT BOKF. :"X C: b,a
B'-lnk of Texas. su..:cessor-:n-:nterest tc1 B'-lnk of Texas. :".A. wke nothtng Jg::unst Defenda"lt
Clint '1. Glenny, II J.nd :h:1t all cbims asserted by Plaint1tf ~gainst Clint M. Glenn~. II are
DE1\IEDc
Fl.'liAL JUDG:I-lE:"iT
\bunt-tS ~ ··wpprula"' 'o. I 5"Y~ J.W'·.:Z:51:.Jr:c
-
P.-\GE I
708
•
•
It ts KRTHER ORDERED. A.DJLDGED .'1.:\D DECREED that Plamc:tf BOKF. :\.A.
d/bia Bank of
T~xas. successor-in-int~rest
Defendant Sidney Br.ass actual
damag~s
:o Bank or'
T~xas.
"'.A. have md
recov~r
from
as follows:
a.
For consptrac;- to de::Taud m the amount of S2A56.5 l 4. l 7:
b
For vwlation of the Theft Liabiltty .-\ct Tex. Civ. Prac & Rem. Code
~: 3-" 00 I- I 3-+ 00~ Ln the amount of 52.000.5 5-+. 8-+.
It ts Fl'RTHER ORDERED. ADJLDGED A:\0 DECREED tha: Plain::rlBOKF. :\.-\
dibia Bank of Texas. succ:essor-m-mterest to Bank of Texas.
~--"'·
have and recover from
Defendant Sidney Brass anomeys' kes m the sum of S l 92.8 l 8.00 for service rendered thwugh
tr:al of t!-Ie case. In the eve!1t of :1ppeal by Defend:JTit Sidney Brass. tf wsuccessfuL PlainntT
wJ!I further be
entltl~d
to 510.000 for any appeal to the Texas Court of .-\ppeal and 515.000 for
any appe:1l to the Tex:lS S·Jpreoe Court:
It is further ORDERED that Plamt1ff BOKF. :\.A.. db. a Bank of
int~rest
successor-m-
to Bank of Texas. '-'-A reco,er on the judgment agamst Defendant Sidney Br.a.ss
prejudgment interest from Februarv l I. 2008. until the date this judgment
5~/Q
T~xas.
iS
srgned at the rate of
per mnum:
It is
t~rt!-!er
ORDERED ..-\DJLDGED .-\:\'D DECREED that Pl:untitf BOKF. :\A dbia
Bank of Texas. successor-in-interest to Bank of
T~xas.
;..;_.-\_ have and recover. jomtly and
severally. of Defendants Cindy Lantrip. Dora "iixon, :a!k!a Dora Bebtash. ar:d
Frazi~r
"iatali~
OJ.ctual damages in th.: a:-r:ount of 51.:332.341.24:
It is further ORDERED that the amounts and judgment awarded m favor of Plainntl
BOKF. :\ ..-\. d b,a Bank
or
Texas. successor-in-:nterest to Bank of
Defendan•s Sidney Br.tss. Cindy Lantrip. Dora "iixon. :a!k/a Dora
T~xas.
:\ ..-\ agamst
B~btasb
::tnd "i:atalie
Fr.azier shall bear mt~rest at the rare of 5% from the dat~ of th1s judgment LS signed until paid.
Fl.'i.-\L RDG:I-lE.'iT
-PAGE Z
709
•
•
A.ll costs Gf court are taxed a:pinst Defendants
Sidne~·
:"iixoo a!k/a Dor.a Bebtash and i"iatalie Fr.azier,jomtlv and
Br.ass. Cind) Lantrip. Dora
sever~lly.
All ;vnts and processes for the enforcement and collection of this judgment or costs of
court may
Issu~
as
nc~.:c-sslr::i.
A.ll rel!cf requested in thrs case and not expressly granted rs DE\ lED. Th:s judgment
tinally disposes of all parties md dauCJs and is ::ppeabbk.
SIG>.;ED THIS
&
d:1y of
~
Sr;im/yy .20 I l.
(=______
Ba
L. Emerson
State Bar >.;o 06599400
Justin J. Koch
State Bar >.;o. 24044555
BELLI:'\GER & DeWOLF. LLP
!0.000 >.;orth Centr<il Expressway. Sulte 900
Dallas. T e.xas 7 523 l
(2141954-9540- Telephon..:
!2141 954-954!- Feicsi:r:rcc
bemerson@ bd-law.com
[email protected]
A TTOR"'EY FOR PLAJ:"iTIFF
BOKF, :"i.A. d/b/a Bank of Texas.
successor-in-interest to Bank ofTeus. :"i.A.
Richard Woods
State Bar "'o. 2!968500
3123 :".W Loop4l0
San Antomo. TexClS 78230
Tdephone 12!016!5-7779
Facsimr:e: (2!01615-7667
Co Counsel for Defendan: Clrnt \I Glenny li
William D. Cnst
State Bar "'o. 24043614
3123 :" W. Loop 4!0
San Antonro. Texas 78230
Telephone (21 01 340-3277
Facsi:ru:e: 1210) }72-0400
Co Counsel t"or Defendant Cl[nt \!.Glenny I
-PAGE 3
710
• ;=:' -,,;=:
'.
::;':::1-. JJCCU3
, ai~~~;!Cll lS::s FAI ~:~ t0~41
B.EL.I -~
II.
IJBeOL•
•
slGNED THIS_ day m _ _ _ __,. zo:l.
C.AJU, G!NSFWG, .JlJDGE !l!tBSIDNG
;d&
nOASTOP?TI:
n ,
L
e
.,
s- Bar~. IJ6599IeOO
Ju:;tinj ~
s-.-.r~-~555
R!\I . NGEiil & DeWOLF, UP
ro.aec ~e-m E 2
rJa)·.
Sude ~o
Dc% Teas 75231
(2:!!) 954-9540 -1'-J ,. .,
(214\ 954-'f54! - ncsimile
1:
~! ilP..coa:
ji '181' 'Ia .=n
AIL
II:'Y,_~
F. .,...,..___ .rT-.,
__
s.A,. ' "
n
t
1
..__,~S..A.
·~f"'::!===.!;:J~~ ~ ~ ~
=Ri.,-;;:...:;.:;,;.=::::=~.::..:...---:::______;'-'::;'..::~_·
1 Woods
Wiltiam D en.
~
• -~
I
~a No. 2!9M500
3::S :-:.W. ~4:0
Sa 4
·o, Tms 'i'123V
~
· (210) 615-T'79
'<... ".• =-,
.. •• (71""''1
_ ~ ,.-~
C:: COiaiSI:l fur D
k :r Clmt M. Glam.y II
r~
.
'1
5
s.ea.r::-;o. 24043614
3!:Z.Hi.W Loap410
Sa.'" 5 'o, T - 71[230
Tel £'
· ('210) 340-327"7
.
FrsmiJe:
l,-'10)
372...o4110
Co Crm ! for D 5 • " C!mt M. Gicmly i
_p,wz3
711
TAB 4
Defendant's [Clint M. Glenny, II's] Third Amended Answer CR 234
NO. 08-14408
BANK OF TEXAS, N.A.
Plaintiff,
v.
CINDY LANTRIP, SIDNEY BRASS,
WILLIAM RAVKIND, CLINT M.
GLENNY, II, DORA LYNN NIXON
afk/a LYNN NIXON and NATALIE
FRAZIER
Defendant.
§
§
§
§
§
§
§
§
§
§
§
Filed
10 December 7 A11:25
Gary Fitzsimmons
District Clerk
Dallas District
IN THE DISTRICT COURT
193RD JUDICIAL DISTRICT
OF DALLAS COUNTY, TEXAS
DEFENDANT'S THIRD AMENDED ANSWER
NOW COMES Defendant, CLINT M. GLENNY, II, named Defendant in the aboveentitled and numbered cause, and files this Third Amended Original Answer, and shows
the Court:
GENERAL DENIAL
Defendant denies each and every allegation of Plaintiff's Original Petition, and
demands strict proof thereof as required by the Texas Rules of Civil Procedure.
AFFIRMATIVE DEFENSES
Even if Plaintiff proves the allegations in its petition, defendant is not liable to
plaintiff because plaintiff was contributorily negligent.
Additionally, even if the Plaintiff proves the allegations in its petition, defendant is
not liable to the plaintiff because the injury subject of this suit was the result of the criminal
act of other defendants.
Furthermore, even if the Plaintiff proves the allegations in its petition, defendant is
not liable to plaintiff because of release of defendant.
234
Pleading further, Defendant Glenny alleges that Plaintiff's claims are barred because
Defendant Glenny had no duty to Plaintiff.
Defendant Glenny had no pecuniary interest in the transaction which is the basis of
Plaintiff's lawsuit.
any representations which Defendant Glenny made were not made in the course and scope
of his business.
any representations which Defendant Glenny made were not made for the guidance of
Plaintiff in its business.
Defendant Glenny had no actual knowledge that Plaintiff received any representation
made by Defendant Glenny or relied upoOn any representation made by Defendant
Glenny.
any representations Defendant Glenny were based upon information supplied by others.
Pleading further, Defendant Glenny alleges that Plaintiff's claims are barred by
estoppel.
Pleading further, Defendant Glenny alleges that Plaintiff's claims are barred by a
lack of justifiable reliance by Plaintiff.
Pleading further, Defendant alleges that Plaintiff's claims are barred by intervening
235
and superceding acts over which Defendant Glenny had no control.
Pleading further, Defendant Glenny alleges that Plaintiff's claims are barred by the
negligence of other third parties.
Defendant Glenny alleges that Plaintiff's claims are barred due to the disclaimer
of liability on the Verification of Deposit.
OBJECTIONS
Defendant objects to anyI all associate judges in all hearings on this matter.
PRAYER
Defendant prays the Court, after notice and hearing or trial, enters judgment in
favor of Defendant, awards Defendant the costs of court, attorney's fees, and such other
and further relief as Defendant may be entitled to in law or in equity.
Respectfully submitted,
LAW OFFICE OF RICHARD D. WOODS
By:
RICHARD "RICK" D. WOODS
Texas Bar No. 21968500
3123 NW Loop 410
San Antonio, TX 78230
Tel. (210) 615-7779
Fax. (210) 615-7667
Attorney for Defendant
CUNT M. GLENNY, II
236
CERTIFICATE OF SERVICE
I certify that on December 7, 2010 a true and correct copy of Defendant's Third
Amended Answer was served on BARBARA L. EMERSON via facsimile at 1-214-954-9541
and the following parties were served by by the method indicated.
John. H. Carney
John H. Carney & Associates
One Meadows Building
5005 Greenville Avenue, Suite 200
Dallas, Texas 75206
Via Facsimile to: 214-363-9979
Dora Lynn Nixon
14355 Burbank Boulevard, Apt. 15
Van Nuys, CA 91401
Via Regular U.S. Mail
Cindy Lantrip
14355 Burbank Boulevard, Apt. 15
Van Nuys, CA 91401
Natalie Frazier
PO Box 601571
Dallas, Texas 75360-1571
Sidney Brass
203 Pine Street
POBox 174
McLean, Texas79057
Qu~~.
RICHARD "RICK" D. WOODS
237
TAB 5
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redeacdactted ed
redacted
io
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nt : •• i
L•:
Cor,.
p.l
Request for Verification of Deposit
1. To
redacted
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EXHIBIT
I
0(
2009·11·11 BoTX-Landtrip
00173
8
341
TAB 6
'1,2l073S3600
05-12-09. 'tO: 19AM;
()
I
j
THE Oi..C:NNY LAW FIRM
i
Februw:y 4, 2008
i•
To \'/hom It May Cone em:
'
'
(t£:
,.
M~. Cindy Lantrip
.
iThln fitm has been ~~Skod to verify oertaln aspects of Ms. L£Urtrip'! ernp!o~ ,Mnt.
Ms ~p hM bellll self-employed fot mare thlll\ two (2) years. Thll name of !lei
~: ':
oO!:I!Pa:W is Lm:tttip Comp!!U'!y. She doe!II!Ct need a 1\cen.m~ to opera1e this buslnes~. Her
moye tji Dlillas will not negD.tiW~ly iml).ll~t her buaincs~>, 1<1i lilie !w hAd an office in Dallas
for oYef two (2) yeaii. The business i$ operated M a legal entl~.
.
;rn = 1:>e of f'wiher ass!stac~. pl eru;o do not heaitatl> to oontact me directly.
Unijt ~I sball!'Omain,
Very T!1.1ly Yours,
THE GLENNY LAW FIRM
C2-J
Vi c:c;y<--"'
7
Uu
CLlNT M. OLENNY,ll
.,,..
;
. .
,:
I
,,1:
I
·:
,;
;.
I
TH~
t;iLE.NNY LAW r'IRM .:..le!$ N,W, !..CO~ ~·10 SAN ANiQNtO T>:; '7&.1!1.2¢
'f.(:!IO) ,.36~~~t&';
~.(2.!0) 73-&·~GOO
WWW.OL.tNN'fLA\1/.co~
J{;Tijlll:l ~!'litr:tD If'< .Ot:l'l't()NN.. JUJUm' !'RIAl_
u.v/
688
,·,o73B3soo
OS-1:<-09:10: 19AM:
#
6/
'
(~
.. •
Febl1llU)' 4, 2008
•To Who!;! tl Mlly Concern:
ItE:
\,
Cindy Lantrip TtllS1 Acc~unts
'
~Y finn ll.aB been requested to advise of&.: status of Ms. Lantrip'~ lr\lst acco1JJ'Iti.
!\it. l.mlltlpbas full accem to boili trust a.ccounts and she has Mlimit on lhe amounts thl!t
ah~ n>.ayWJilidraw.
. . it I can be of furtber assistanco, please Ito not hesi~ to conta(;t me directl)y.
Until~
l sholl r~
·
.·
VecyTrulyYo~
THE GLENNY LAW FIRM
~f h
CLINT M. GLENNY, ll
lL
0
QQ
0
CMG~ow
Smtl VI; Facsimtle ro:
J.2JMhS-U40 and to
1-9?2-447-0161
I
!·
I
TH! G\...t:NNY LAW FI~M :f..l~.:ol N,W, LOOP 410 SAN ANiON!O TX '71lll..2.0
1,{!'110) 't~£·2~t;'S
!l.~AA~
F,U!!O) i'.!•B".leCQ WWW.~I.tNNYLAW,COM
C£1!Tir!!:.t:IIN P!~O"''-!..INJU1n' lAIAI. v,W
690
e

NO. 05-11-01478-CV IN THE COURT OF APPEALS FIFTH

Transcription

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