First Interstate Bank of Texas, N.A. v. S.B.F.I., Inc.First Interstate Bank of Texas, N.A. v. S.B.F.I., Inc.
OPINION
First Interstate Bank of Texas (Bank) and Claude Dale appeal from the trial court’s judgment in favor of Summa Medical Corporation, a New Mexico Corporation (Summa New Mexico), and its subsidiary, S.B.F.I., Inc. 1 Appellees filed suit against Bank for negligence and negligent misrepresentation and against Dale for conspiracy. On appeal, Bank asserts forty points of error generally complaining that: (1) there is no evidence or, alternatively, insufficient evidence to support appellees’ negligence and negligent misrepresentation claims; (2) the trial court erred in submitting various jury instructions and in failing to submit its requested instructions; and (3) the evidence shows as a matter of law that the actions of a third party were a new and independent cause of appellees’ damages and that appellees waived their rights against Bank. Dale urges three points of error, arguing that there is no evidence or, alternatively, insufficient evidence to support the jury’s findings that he participated in a conspiracy. We reverse and render a take-nothing judgment on appellees’ negligence and conspiracy claims. We reverse and remand appellees’ negligent misrepresentation claim.
FACTUAL BACKGROUND
Summa New Mexico engages primarily in research and development of cancer-detection drugs. S.B.F.I. serves as the investment arm for Summa New Mexico. In 1987, Lou Camilli, appellees’ employee, met Bill Ballard, whose real name is Joel Bailey. 2 Ballard told Camilli about an investment plan whereby Summa New Mexico would sell bonds and use the bond proceeds to buy certificates of deposit that, in turn, would be sold to Ballard’s “offshore interests,” whom Ballard said would remain anonymous. No buyers for the bonds were found. Beginning in Spring 1988, Ballard proposed a new investment plan. Appel-lees would entrust $1 million to Ballard, who would engage in bond transactions to establish a “track record.” As part of the arrangement, appellees executed a power of attorney in favor of Finance Institute, Inc., Ballard’s company.
On June 2, 1988, an account in the name of Summa Medical Corporation was opened at First Republic Bank in Dallas, Texas. Withdrawals from the account could be made by Francisco Urrea, president of ap-pellees; Trey Urrea, vice president of ap-
On June 14, 1988, Bailey, using his real name, established a Texas corporation named Summa Medical Corporation (Sum-ma Texas). On June 15, 1988, using Sum-ma Texas’ corporate documents, Bailey opened an account at Bank in Houston, Texas, in the name of Summa Medical Corporation (the account). Bailey was the only person authorized to sign on the account. Bailey wired the funds in the First Republic Bank account to Summa Texas’ account at Bank. During this trip to Houston, Bailey stayed at Dale’s home, drove one of Dale’s vehicles, and worked out of Dale’s offices.
After the account was opened, Ralph Adams, a Bank loan officer, obtained a Dun & Bradstreet report to get information which would be helpful in attracting other business with respect to the account. The Dun & Bradstreet report was for Sum-ma New Mexico. On June 20,1988, Adams called Summa New Mexico, which he mistakenly believed to be the depositor. Among other things, Adams told Camilli that Summa’s account was at Bank and that transactions had commenced. During the conversation, Camilli learned that Bailey was authorized on the account. Camilli told Adams that he did not know Bailey and that only Ballard was authorized to act for Summa New Mexico. To that, Adams responded, “Oh, yeah, him too.” Camilli told Adams to place a hold on the account. Adams was “noncommittal.”
Bailey was in Houston on June 20 to 25. He again stayed with Dale, drove Dale’s vehicle, and worked out of Dale’s offices. On June 24, 1988, Bailey wired $754,376 to Houston Numismatic Exchange for the purchase of gold coins. An invoice from the Exchange shows that Bailey received 1700 gold pieces on June 24, and 100 on June 27.
On June 28, 1988, Ballard called Camilli and told him that he had taken all of the money out of the account and had converted it into hard, untraceable assets so that he could continue to buy and to sell instruments and could continue to protect his investors. Camilli demanded a meeting immediately, and flew to Dallas that day with appellees’ in-house counsel, Bob Strumor. At the meeting, Ballard told Camilli and Strumor that the investors would remain anonymous and that, to protect those people, he had formed Summa Texas, had withdrawn appellees’ money from the account, and had converted their money to hard assets. Ballard also insisted that ap-pellees execute documents which would show that the money had been a loan to Ballard. Ballard agreed to return appel-lees’ money if they entered into the loan agreement. Ballard also warned Camilli and Strumor that, if they contacted the police, he would disappear with the money. Appellees passed a corporate resolution authorizing Francisco Urrea to make the loan to Summa Texas and to Ballard.
On June 29, 1988, Camilli spoke to Adams, who gave him Bailey’s address. Camilli also learned about the transfer of funds to Houston Numismatic. On June 30, Camilli discovered that Ballard’s telephone number had been disconnected. On July 1, Camilli spoke to the telephone company in Dallas in an attempt to find an address for Ballard. Camilli also learned that the Jaguar driven by Ballard was registered to Bailey. That day, Camilli flew to Dallas and drove to the address that had been given to him for Ballard. No one was at the house, but Camilli noticed a Jaguar similar to the one he had seen Ballard drive before. At that point, Camilli had no doubt that Ballard and Bailey were the same person. Camilli contacted the Dallas County District Attorney’s office.
On July 5, 1988, Camilli again went to the district attorney’s office. When Camilli called his office, he learned that Ballard had been calling him every half hour. Camilli called Ballard from the district at
On July 13, Ballard called Camilli and told him that he needed information to wire funds to appellees and told Camilli the amount of money that he planned to wire. Ballard still acted as if he was going to return appellees’ funds. Bailey subsequently disappeared, and the money never was returned. Thereafter, police officers arrested Carolina Bailey. Dale flew to Dallas and posted the necessary bonds to bail her out of jail. Criminal charges against Carolina Bailey subsequently were dropped.
NEGLIGENCE
In its first point of error, Bank argues that there is no evidence to support a finding that it owed a duty to appellees. Bank contends that it owed a duty to appellees only if it undertook an affirmative course of action
for their benefit. See Fort Bend County Drainage Dist. v. Sbrusch,
Negligence consists of three essential elements: a legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach.
Rosas v. Buddies Food Store,
In
Otis Engineering,
the court imposed a duty because the employer (Otis) performed an affirmative act of control over an incapacitated employee.
See Otis,
Appellees also assert that Bank’s argument that
Otis Engineering
applies only to the employer-employee relationship is “doomed to failure” because this Court has quoted with approval the language that Bank contends is an incorrect statement of the law in the jury charge.
See Moore v. Times Herald Printing Co.,
We hold that under our facts the appropriate test for determining whether a duty exists when one allegedly voluntarily assumes a duty to act is as follows: One who voluntarily undertakes an affirmative course of action for the benefit of another has a duty to exercise reasonable care that the other’s person or property will not be injured thereby.
See Fort Bend County Drainage Dist.,
We next determine whether there is some evidence that Bank undertook an affirmative course of action for appellees’ benefit. A no-evidence point is a question of law. In deciding that question, we consider only the evidence and inferences tending to support the finding and disregard all evidence and inferences to the contrary.
Jacobs v. Danny Darby Real Estate, Inc.,
Bank argues that, because Adams never told appellees that he would put a hold on the account, there was no evidence that Bank undertook an affirmative course of action. Appellees argue that Bank misper-
Adams called Summa New Mexico on June 20 because he believed that the company was connected to the account. Adams wanted to determine whether Bank could gain additional business from what he believed to be one of Bank’s customers. To the extent that the telephone call was an affirmative course of action, it was for the benefit of Bank, not appellees. Camilli testified at trial concerning his June 20 conversation with Adams. Camilli’s testimony shows that Adams never affirmatively stated that Bank would put a hold on the account. Rather, Adams was “noncommittal.” However, Camilli “inferred” from Adams’ silence that he would put a hold on the account. There is no evidence of the slightest undertaking by Adams or by any other Bank employee to place a hold on the account. The fact that Bank either supplied or failed to supply Camilli with certain account information did not constitute the undertaking of an affirmative course of action for appellees’ benefit. In light of the facts of this case, we conclude that there is no evidence that Bank undertook an affirmative course of action for appel-lees’ benefit. We further conclude, therefore, that Bank owed no duty to appellees. We sustain Bank’s first and third points. Accordingly, we reverse the trial court’s judgment and render a take-nothing judgment for Bank on appellees’ negligence claim.
Because we sustain Bank’s first and third points of error, we do not reach its remaining points of error concerning appel-lees’ negligence claim.
NEGLIGENT MISREPRESENTATION
In its twelfth through sixteenth points, Bank argues that there is no evidence to support a finding against it on any of the elements of negligent misrepresentation. It contends that it is undisputed that it gratuitously supplied the information, that no misrepresentations were made, and that appellees did not justifiably rely on the information it provided. Appellees assert that Bank misrepresented and omitted facts concerning the account and that Bank is therefore liable for negligent misrepresentation.
The elements of a cause of action for negligent misrepresentation are: (1) the representation is made by the defendant in the course of its business or in a transaction in which it has a pecuniary interest; (2) the defendant supplies false information for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation.
Cook Consultants, Inc. v. Larson,
The evidence supporting the jury’s verdict is as follows. Adams’ supervisors told him to obtain a Dun & Bradstreet report on Summa Medical Corporation and to contact the company to determine whether the Bank could get more business. Adams telephoned Summa New Mexico and spoke to Camilli. Adams led Camilli to believe that the account was Summa New Mexico’s, although the account in fact belonged to Summa Texas. During his conversation with Camilli, Adams told Camilli that Bailey was authorized on the account. When Camilli told Adams that he did not
First, this information was given in the course of Bank’s business. Adams contacted Summa New Mexico to determine whether Bank could get additional business. During this conversation Adams conveyed information about the account to Camilli. This is a sufficient indication that Bank had a pecuniary interest. See Restatement (Second) op ToRTS § 552 comment d (1977). It is not necessary that Bank receive consideration for the information at the time that Adams supplied the information to Camilli. Id. There is some evidence in the record that this was not, as Bank argues, a gratuitous gesture since Bank sought to benefit by bringing in additional business from the corporation that it believed owned the account.
Next, Adams erroneously indicated that the account was Summa New Mexico’s and that Ballard was authorized on the account. This is some evidence that Bank supplied false information to appellees.
Additionally, Adams had the corporate documents and account information when he spoke to Camilli. Thus, Adams was in a position to determine that only Bailey was authorized on the account and that the account was in the name of Summa Texas, not Summa New Mexico. Adams had access to this account information, although Camilli did not. This is some evidence that Adams did not exercise reasonable care or competence in obtaining or communicating the information.
Finally, Camilli testified that, had he known that the account was not Summa New Mexico’s and that Ballard was not authorized on the account, he would have taken immediate action to investigate the situation. This is some evidence that Sum-ma New Mexico justifiably relied on the information supplied to it by Bank. We overrule Bank’s twelfth through sixteenth points.
NEW AND INDEPENDENT CAUSE
In its twenty-second point of error, Bank argues that, even if appellees could establish claims for negligence or negligent misrepresentation, the evidence showed as a matter of law that Bailey’s conduct was a new and independent cause of appellees’ damages. Thus, Bank asserts, Bailey’s criminal conduct relieved it of liability regardless of its alleged negligence.
New and independent cause is an element considered in determining the existence of proximate cause.
McAllen Kentucky Fried Chicken No. 1 v. Leal,
The jury was instructed as follows concerning proximate cause:
Instruction No. 5:
Proximate cause means that cause which, in a natural and continuous sequence, unbroken by any new and independent cause, produces an event, and without which cause such event would not have occurred. In order to be a proximate cause, the act or omission complained of must be such that a person using ordinary care would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event but if the acts or omissions of Joel Bailey were thesole proximate cause of [appellees’] loss, if any, then you should not find that any other party proximately caused the losses in question.
Instruction No. 6:
New and independent cause means the act or omission of a separate and independent agency, not reasonably foreseeable, which destroys the causal connection, if any, between the negligent act or omission inquired about and the occurrence in question, and thereby becomes the immediate cause of such occurrence.
The jury found that Bank’s negligent misrepresentations proximately caused appel-lees’ damages.
Bank asserts that the evidence establishes as a matter of law that Bailey’s conduct superseded its alleged negligence because: (1) it was not alleged to have been guilty of any negligent acts or omissions that could have caused harm to appellees without Bailey’s intervention since no loss would have occurred had Bailey not stolen the funds; (2) Bailey’s conduct was extraordinary since there was no evidence that similar frauds had been committed; (3) Bailey’s conduct was entirely independent of its allegedly negligent conduct and was not the normal result of either failing to put a hold on an account or failing to disclose information to a third party; (4) the intervening force,
i.e.,
Bailey’s fraudulent conduct, was entirely his own; and (5) Bailey’s acts were more than ordinarily culpable because they were criminal and resulted in an award of punitive damages. Bank bases these arguments on the criteria for new and independent cause set forth in section 442 of the Restatement (Second) of Torts and adopted in
Humble Oil & Refining Co. v. Whitten,
In addition to the facts set forth by Bank, the evidence showed that Bank indicated that the account was Summa New Mexico’s account and that Ballard was connected to this account. Camilli testified that had Summa New Mexico been made aware of the true facts, i.e., that the account was Summa Texas’ and that Bailey was the only person authorized on the account, it could have taken action to investigate the situation and to secure the funds. This evidence would support a finding that Bank’s negligent misrepresentations contributed to appellees’ loss. The jury was instructed that there could be more than one proximate cause of appellees’ loss. From this evidence, reasonable minds could differ as to whether Bailey was the sole cause of appellees’ loss. Thus, the evidence does not show as a matter of law that Bailey’s conduct was a new and independent cause that relieved Bank of responsibility for appellees’ damages. We overrule Bank’s twenty-second point.
DAMAGES
In its twenty-third and twenty-fourth points, Bank argues that there is no evidence or, alternatively, insufficient evidence to support either the submission of a damage question to the jury or the jury’s answer to the damage award. Appellees reply that the total amount of their loss is $1,002,000, which is the amount that the jury found constituted their damages.
Bank first asserts that it had no liability to appellees under any of appellees’ causes of action and that, therefore, it was improper for the jury to consider damages. We previously held that there is some evidence to support the elements of appellees’ negligent misrepresentation claim. Thus, the trial court properly submitted the damage question to the jury on that cause of action.
Bank further asserts that there is no evidence or, alternatively, insufficient evidence to support the jury’s answer to the damage award. Jury question four asked: “What sum of money would reasonably compensate [appellees] for the damages, if any, proximately caused by [Bank’s] negli
The first contact between Bank and appellees was on June 20, when Adams spoke to Camilli. Bank, therefore, could not have supplied any false information to appellees for guidance in a business transaction before June 20. The evidence reflects that, at the beginning of the business day on June 20, 1988, only $760,188 remained in the account. This is the maximum amount that arguably could have been lost as a result of Bank’s alleged negligent misrepresentations. Appellees argue that there was evidence that, had the Bank made full and accurate disclosures, appellees would have acted promptly in securing their funds and could have recovered the full amount ($1,002,000) from Bailey. They state that the jury was entitled to believe that they could have prevented their entire loss but for Bank’s negligent misrepresentation. We disagree. Because there was only $760,188 in the account at the beginning of business on June 20, 1988, appellees’ damages caused by Bank could not have exceeded that amount. We conclude that there is no evidence to support the jury’s response to question four. We further conclude that there is insufficient evidence from which this Court can determine the amount of damages. Accordingly, we must remand appellees’ negligent misrepresentation claim for a new trial. See Tex.R.App.P. 81(b)(1). We sustain Bank’s twenty-third and twenty-fourth points.
WAIVER
In its twenty-fifth point, Bank argues that the evidence showed as a matter of law that appellees waived their claims by taking intentional action inconsistent with their claims. Alternatively, Bank asserts that the jury’s failure to find that appellees waived their claims was against the great weight and preponderance of the evidence.
Waiver is an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.
Sun Exploration & Prod. Co. v. Benton,
Camilli testified that the loan document “was being delivered to somebody [Ballard/Bailey] who was pointing a gun at our heads, as far as we were concerned.” Francisco Urrea, president and chairman of the board of S.B.F.I., testified that, after Summa New Mexico learned that Ballard had taken the money, Ballard requested that the transaction be made a loan. He stated that Summa New Mexico had a loan document drafted because Ballard informed appellees that he would not return its money unless they signed a note because he did not want to go to jail for stealing the money. Summa New Mexico had no intention to extend a bona fide loan to Ballard. S.B.F.I.’s board of directors passed a resolution authorizing Urrea to execute any and all documents to complete a $1,002,000 loan to Summa Texas and Ballard for the purpose of investing in AA or better commercial paper, so long as the loan was due and payable to S.B.F.I. no later than July 15, 1988. Urrea testified that the loan approved by the board was a “sham” and that Ballard already had stolen the money when the loan was approved. Although the official board minutes do not reflect that the loan was a sham, Urrea testified that the directors discussed off the record that the loan Was not bona fide. Urrea testified that the loan document does not reflect the true purpose of the loan because Ballard would not have accepted the deal.
The jury could find from the above evidence that Summa New Mexico neither voluntarily relinquished its rights nor engaged in intentional conduct inconsistent with its rights. Further, any rights appellees may have waived by approving the loan documents would have been against Bal
Because we reverse and remand appel-lees’ negligent misrepresentation cause of action, we need not address Bank’s points of error complaining of insufficient evidence to support the jury’s findings on that claim and of jury-instruction error. Likewise, we do not reach appellees’ cross-points contending that the trial court erred in submitting jury questions and instructions on mitigation and that there is no evidence or, alternatively, insufficient evidence to support the jury’s answers to those questions.
CONSPIRACY
In his first point, Dale alleges that the trial court erred in overruling his motion for judgment notwithstanding the verdict because there is no evidence to support the jury’s finding that he participated in a civil conspiracy. Specifically, he argues that there is no evidence of a meeting of the minds or of participation by two or more persons, necessary elements in a conspiracy claim. Appellees contend that the jury could find from the circumstantial evidence and inferences from that evidence that Dale participated with Bailey in a conspiracy to defraud them.
A party is entitled to judgment n.o.v. if the opposing party failed to prove an essential element of its claim.
Bishop v. Allied Co.,
An actionable civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose by unlawful means.
Massey v. Armco Steel Co.,
Allen Teel, a private investigator hired by Summa New Mexico to locate Bailey, testified that he saw Dale when Dale bailed Carolina Bailey out of jail on July 19, 1988. Although Teel lost Dale and Carolina Bailey when they left the jail, he found Dale’s rental car in front of a restaurant connected to Carolina Bailey’s office building. Teel also saw a Jaguar that he had seen Bailey drive on a previous occasion parked in the parking lot. He saw Dale again when police officers talked to Dale in the restaurant parking lot. These were the only times that Teel saw Dale. Teel never saw Bailey that day.
Dale testified that he had known Bailey for more than fifteen years; they met when Dale lived in Dallas. Dale had known Carolina Bailey for about ten years. Dale and his wife were good friends with the Baileys; they sometimes vacationed together and spent every New Year’s together. Dale had lent money to Bailey when Bailey was in financial trouble.
Bailey was in Houston on business the weeks of June 14 and 20, 1988. Dale picked up Bailey at the airport. Bailey stayed at Dale’s house, drove one of Dale’s vehicles, and worked out of Dale’s offices. This was not uncommon; it happened about four to six times per year during their friendship. Dale did not know Bailey’s business or that Bailey had opened up an account at Bank. Dale last saw Bailey at his (Dale’s) house on June 25. Dale testified that he is aware through testimony at trial that, on June 24, 1988, Bailey picked up 1700 gold coins. He acknowledged that Bailey used his van that day. He also now is aware that 100 gold pieces were to be delivered on June 27, 1988. Bailey had left town on June 25, and Dale neither saw Bailey after that nor received the 100 gold pieces. Dale stated that he did not participate in the purchase of the gold, and he had no knowledge of the purchase. He also stated that he was not involved with Summa Texas.
Dale and his wife flew to Dallas to bail Carolina Bailey out of jail. Dale posted a $20,000 cash bond; he had the money in his safety deposit box because he often bought and sold things and needed the cash for that purpose. Dale also posted a $100,000 security bond using rental property. He bailed out Carolina Bailey because she has been his friend for the past ten years and because she needed help. Bailey has called Dale twice since he disappeared. He called Dale on July 18 and told him that the Jaguar was at the Holiday Inn. After Dale bailed out Carolina Bailey, they went to get the car. Dale and Carolina Bailey went into the club next door.
Carolina Bailey testified that Bailey was secretive about his business and never discussed it with anybody. She stated that she never heard Bailey and Dale discuss business. Representatives of Summa New Mexico testified that Dale had no signatory authority on the accounts involved in this case and that they had neither met nor talked to Dale.
The above evidence shows that Dale and Bailey were friends long before the formulation of the scheme to defraud appellees. The Dales and the Baileys were close personal friends, and Bailey used Dale’s house, vehicles, and offices several times per year. Bailey allowed Dale to use his house, car, and office when Dale visited Dallas. Nothing in the record shows that Dale was involved in the purchase of the gold pieces. Although his business telephone number appeared on the Exchange invoice, the evidence shows that the Exchange contacted Bailey, not Dale, at the number. The invoice reflects that both deliveries of gold were made to Bailey, although there is no evidence that Bailey was in Houston on the day that the second delivery was made. Further, Dale’s name does not appear on Summa Texas’ corporate documents or on documents connected with the account. No one from Summa New Mexico ever had heard of or spoken to Dale. There is no evidence that during their fifteen- or sixteen-year friendship Dale and Bailey did any business together, although Dale had lent Bailey money when Bailey had financial trouble. Carolina Bailey testified that Bailey did not discuss his business with others, including her.
Because we sustain his first point, we do not address Dale’s remaining points of error.
We reverse and remand in part and reverse and render in part.
Notes
. S.B.F.I. and Summa New Mexico are referred to collectively as appellees.
. We refer to Bailey/Ballard according to the name he used at the time of the events discussed.
. Jury question one instructed the jury that Bank owed a duty to appellees if Bank undertook an affirmative course of action affecting the interests of appellees, thus following Otis Engineering. We note that Bank objected to jury question one at trial and has asserted a point of error complaining of the question.
. Ballard’s name appeared on Summa Texas’ articles of incorporation.