First State Bank of Mesquite v. Bellinger & Dewolf, LLP, 2011 Tex. App. LEXIS 2263

Bank loaned ~$1.7 million to FBE for purchase of H2O, with H2O assets pledged as collateral and John Fradette and Mike Fradette providing personal guaranties.
FBE sued Hawley for misrepresentation; Bank later joined as defendant and sought recovery on the note and guaranties.
Bank amended to include Bellinger & DeWolf, Musgrove, and Bellinger on third-party claims alleging a scheme to transfer pledged assets and to aid multiple banks with new loans using the same collateral.
Trial court granted special exceptions limiting Counts 4–6; scheduling order set March 24, 2008 deadline for amended pleadings; Bank re-pleaded April 2008 with new RICO-related claims.
Bank later sought leave to file additional claims; May 2008, RICO claims were struck as untimely; summary judgment granted in favor of Bellinger & DeWolf on all remaining Bank claims.
Bank timely appealed, challenging the trial court’s handling of amendments, summary judgment evidence, and the sufficiency of the asserted claims.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the court abuse its discretion re: late RICO amendment?	Bank argues schedule-order deadline was ignored to bar RICO claims.	Bellinger & DeWolf contends amendment was late and calculated to surprise.	No abuse; amendment could surprise and reshape the action.
Was the Hernandez affidavit properly struck as summary judgment evidence?	Bank says affidavit corroborates other evidence and should be allowed.	Hernandez contradicted deposition testimony without explanation, creating a sham issue.	Affidavit portions were properly struck; no abuse of discretion.
Did the trial court err in granting summary judgment on the Bank's fraud/conspiracy claims?	Bank contends disputed issues exist on reliance and intent.	Bellinger & DeWolf argues lack of evidence on key elements and existence of fiduciary duty.	Summary judgment affirmed; no triable issues on those counts.
Was there sufficient proof of conspiracy to breach fiduciary duty?	Bank asserts an informal trust and fiduciary duty existed; conspired to breach it.	No evidence of fiduciary relationship or breach elements; claim fails.	No triable issue; grant of summary judgment upheld.
Was there sufficient proof of conspiracy to commit fraud?	Bank claims intent to agree to unlawful purpose and damages from actions.	No evidence of specific intent, agreement, or damages tied to the alleged conspiracy.	No evidence of the required elements; claim failed.

Greenhalgh v. Service Lloyds Insurance Company, 787 S.W.2d 938 (Tex. 1990) (pretrial amendment standards; surprise and prejudice considerations)
G.R.A.V.I.T.Y. Enterprises, Inc. v. Reece Supply Company, 177 S.W.3d 537 (Tex.App.-Dallas 2005) (scheduling order deadlines and amendments; abuse of discretion standard)
Kilpatrick v. State Bar of Texas, 874 S.W.2d 656 (Tex.1994) (standards for amendment abuse and prejudice; guiding principles)
Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640 (Tex.1995) (summary judgment standard; burden-shifting; evidence evaluation)
Farroux v. Denny's Restaurants, Inc., 962 S.W.2d 108 (Tex.App.-Houston [1st Dist.] 1997) (sham affidavit doctrine; need explanation for changes in testimony)