*1 above, For the reasons stated we affirm
the trial court’s order of dismissal. KELLY,
Roger Appellant/Cross-
Appellee,
Russell GAINES Southwest Guar
anty Mortgage Corp., Appel
lees/Cross-Appellants,
Robert and Commercial
Realty Advisors, Inc.,
Appellees.
No. 10-03-00369-CV. Texas, Appeals
Court of
Waco.
Sept. *7 Rogers, Rogers, Michael
Michael J. J. *8 Davis, Davis, Cleburne, PC, Rex Jeff Waco, for Sheehy, Mayfield, Lovelace & appellant. Longoria, Larsen
Joseph R. and Janiece Longoria, Brocks <& Ogden Gibson White Houston, Corrigan, Anto- Richard P. San nio, appellees. for GRAY, Before Justice Justice Chief VANCE, REYNA. and Justice OPINION Realty Commercial identified Southwest Guaranty possible as a Kelly. lender for REYNA, FELIPE Justice. Thompson, Robert Realty’s Commercial president, necessary received the ap- loan Roger Kelly filed suit Appellees plication documents from Southwest Guar- after Southwest Guaranty Mortgage Corp. anty and Kelly’s forwarded them to attor- $2,010,000 faded to fund a loan Kelly to for ney Thomas Bullard. Bullard assisted which previously it had issued a loan com- Kelly documents, in completing the then mitment. granted The trial court several returned them to who forward- by motions Ap- filed ed Guaranty. them to Southwest pellees and rendered take-nothing judg- a ment in their favor. Kelly contends that Thompson then a Kelly sent letter to by the court erred denying two continu- advising longer that he would “no be act- motions, ance by granting summary the ing mortgage [Kelly’s] as a broker loan motions, judgment by denying his motion application” Kelly and that should thence- compel Russell Gaines to Gaines, answer certain forth directly deal with deposition questions, by denying his mo- Guaranty’s president. According tions to reconsider the summary judgment Gaines, attorney, Bullard and other rulings, by denying Stocker, III, his motion for new C.W. Gaines in advised a trial. Gaines and subsequent Kelly that conversation had an contend in their cross-appeal ownership that interest in the that property, by denying erred refinancing, their motion loan was for that for sanctions, by granting Kelly’s softball park platted had been and several counterclaims, pre-sold motion on lots developers. their denying their motion to release Bullard and pressed Stocker Gaines for certain Kelly documents filed with the a loan to show the court in commitment court under seal. prior litigation had located an interested lender. Southwest
We will affirm in part and reverse and a identifying Kelly issued loan commitment remand in part. as the borrower and father-in-law Franklin Meeks as a co-borrower. The Background Factual purpose contemplated stated for loan litigation was regard- involved was “refinanc[ing].” The commitment had ing a 31-acre tract of land Burleson thirty-day term. The commitment indi- used as a park commonly softball re- “fully cated it must be executed” ferred to as Cowtown To settle Park. this the borrower and that the lender’s obli- lawsuit, parties agreed in December gations subject thereunder were would receive lease with receipt satisfactory appraisal, proof of a option an to purchase property insurance, report, a title and other docu- $1,638,825. necessary mentation to ensure the borrow- er’s financial condition. an signed Advisory Agree- Fee Advisors, ment with Realty Gaines, Commercial According to when he received *9 Kelly wherein stated his to report indicating Kelly desire obtain the title had “mortgage financing for purposes ownership property, the of no in interest the he refinancing developing and the Cowtown contacted Bullard and Stocker. Gaines Park.” Realty agreed Commercial proof ownership “to dili- asked them of provide to gently pursue financing” Kelly’s behalf. and platting further information about the to lots, parties the they The court instructed they which said miss. pre-sold and setting negotiate an telephone had a conversa- a new and would. Gaines obtain trial days the tion with three before and scheduling Stocker order. Gaines agreed expire. commitment to Stocker loan was proposed a Guaranty offered Guaranty the insisted that Southwest fund scheduling parties which the never order replied that the loan would loan. Gaines agreed to. required the docu- not be funded without Guaranty filed a and Gaines to
mentation. Stocker then threatened summary judgment motion on no-evidence if funded. sue the loan was not The was set 2002. motion November longer responded that he was no interest- hearing three weeks later. On Novem- for pursuing in the ed loan. 7, Kelly a motion to substitute a filed ber Background first attorney ap- the two who Procedural new for in 2001. On No- peared January for him failed Shortly after Southwest new a Kelly’s counsel filed vember January in to fund the loan contending continuance motion verified Gaines, against filed suit Southwest Guar- yet adequate there been time had anty, Thompson, Realty and Commercial discovery noting that counsel contract, fraud, for and need- neg- of alleging breach and later, months to familiarize himself ligence. ed more time with Three filed response to petition adding Thomp- an Jeff case. also filed a amended the Counsel motion, Services, subject and judgment son IDC Inc. as defendants1 the conspira- and additional claims for alleging motion. the continuance cy judge and conversion. The elected re- . continuance The denied and cused himself June a retired summary judg- motion and conducted the judge assigned the case was two weeks response, In hearing ment as scheduled. later. Kelly non-suited his fraud and contract January Kelly hired new attor- granted The court Gaines’s and claims. neys. In March a entered Guaranty’s summary order, setting docket for control case as claims. The motion other trial July establishing and various a docket control court also entered new discovery and other In April, deadlines. July trial in setting jury case order a Gaines and Southwest filed discovery to be and com- requiring (and against Kelly third-par- countersuit May by the 2003. pleted end Bullard, ty Stocker, against action Meeks) fraud, alleging malicious prosecu- against new petition then filed a tion, conspiracy, negligent misrepre- Guaranty alleging Gaines and Southwest sentation. fraud and con- previously non-suited docketing this tract claims. Rather than to dis-
Stocker Meeks filed motions lawsuit, separate as district petition they miss the claims them because among papers of the clerk filed it ninety days were served less than before trial, original suit. Gaines Southwest Guar- in contravention of the docket control anty allegations filed an set- answer these order. The court cancelled trial ting, February to dis- and later denied the motions ultimately with Thompson Appellee settled Jeff
1. Jeff the brother of vices. Thompson. ap- performed Robert Jeff and IDC Services. praisal property on behalf IDC Ser- *10 Mаrch, In Stocker and Meeks prior (2) each filed summary judgment rulings, a re- a traditional and summary no-evidence sponse to Thompson’s and Commercial Re- judgment motion on Gaines’s and South- alty’s amended no-evidence summary Guaranty’s west counterclaims. (3) motion, judgment and a motion sup- and Southwest Guaranty filed a no-evi- plement the motion to reconsider with summary dence judgment motion on Kel- Meeks’s affidavit. Gaines and Southwest ly’s fraud and contract claims. response filed a Kelly’s no- Realty Commercial filed their own no- evidence summary judgment motion on evidence summary judgment motion on their counterclaims. supple- filed a Kelly’s fraud and contract claims. mental petition alleging promis- a claim of sory estoppel against Gaines and South-
In April, Gaines and Southwest Guaran- Guaranty. west At a hearing, June 27 ty non-suited third-party their claims granted Thompson’s and Commer- against Stocker and Meeks and later cial Realty’s no-evidence summary judg- agreed to the dismissal third-party of their ment motion. claims Bullard. Kelly filed an petition amended adding a claim for In July, Gaines and Southwest Guaranty fiduciary duty breach of against Thompson summary filed a judgment motion contend- Realty. Commercial ing Kelly’s promissory estoppel claim was barred limitations and a motion for In May, Thоmpson and Commercial Re- sanctions. response filed a alty filed an amended no-evidence sum- Gaines’s and Guaranty’s Southwest sum- mary judgment motion addressing the ad- mary judgment motion and a second mo- ditional claims in Kelly’s raised amended tion to reconsider the court’s prior sum- petition. Kelly then filed a second amend- mary judgment rulings. Thompson and petition ed clarifying allegations his to be Commercial Realty filed a response to Kel- claims for fraud and breach of contract ly’s second motion to reconsider. against Gaines, Guaranty, Southwest Thompson, and Commercial Realty and a In August, Kelly filed a motion for sanc- claim for breach of fiduciary duty against tions against Gaines and Southwest Guar- Thompson and Commercial Realty. anty and a response to Gaines’s and South- Guaranty’s west sanctions motion.
The hearing on Gaines’s and Southwest Guaranty’s second summary no-evidence September, In Kelly’s the court denied May motion was set for reconsider, granted motions to Gaines’s Kelly filed a pleading May 21 request- Guaranty’s summary judg- ing hearing that the be continued to allow ment motion on promissory estop- and, discovery subject further to the re- claim, pel granted Kelly’s summary quested continuance, responding to the judgment motion on Gaines’s and South- cоntentions of the judgment mo- Guaranty’s west counterclaims. The court tion. The court denied the requested denied the sanctions by Kelly motions filed granted continuance and Gaines’s and and by Gaines and Guaranty. Southwest Guaranty’s second no-evidence Thereafter, signed judg- its final motion on ment. filed a motion for new trial fraud and contract claims. which the court denied in October. June, Kelly filed a no-evidence sum- Issues Presented mary judgment motion on Gaines’s and counterclaims. Kel- presents eight issues in which he ly also filed: a motion to reconsider the contends the court abused its discretion
405
(1)
request
mo-
a continuance
by:
denying his first continuance
When
(2)
counsel,
tion;
on the
granting
premised
Gaines’s
withdrawal
and Southwest
summary
that the failure to be
Guaranty’s
movant must
first no-evidence
show
(3)
motion;
due
own
second
at
is not
to his
judgment
denying
represented
his
trial
(4)
motion;
Carter,
v.
granting
Villegas
continuance
Gaines’s
negligence.
fault or
Guaranty’s
(Tex.1986);
and Southwest
second no-evi-
In
Posadas
re
(5)
motion;
summary judgment
Inc.,
(Tex.App.
dence
USA
Re-
granting Thompson’s
and Commercial
orig. proceeding); St.
Antonio
San
summary
mo-
alty’s
Jackson,
no-evidence
Gelais
(6)
tion;
denying
compel
his motion to
(Tex.App.-Houston [14th Dist.]
Guaranty to an- writ).
Gaines
and/or
likewise
when
principle
applies
This
deposition questions
regarding
swer
shortly
tri
counsel is retained
before
new
funding
contemplated
for the
source
Gelais,
denying his for new motion trial. summary judgment their motion anty filed after years more than three and one-half
Gaines contend Kelly years filed suit and more than three first court their cross-issue that Kelly petition. filed his first after amended abused its discretion their mo- denying Kelly changed attorneys during twice this Subject tion for sanctions. to a reversal Kelly’s newly counsel period. retained issues, they and remand on other contend that he hearing stated had been in their second and third cross-issues Kelly taking with about discussions by granting no- Kelly’s erred for two months before the date of case summary judgment on motion hearing and discussed the case with had by denying their counterclaims and their opposing former coun Kelly’s counsel Kelly motion to certain documents release appearance on making before a formal sel filed with the court under seal. fact, Kelly’s behalf. and South Continuance Motions copy sum west faxed of the mary judgment Kelly’s motion new Kelly contends his and third first days three it filed and counsel before was that the respectively issues court abused days motion six before the to substitute by denying discretion his sec- its first and counsel was filed. ond motions. continuance history, procedural this court From first continuance motion (1) essentially grounds: Kel could have concluded that bore some rested two change lawyers so ly attorney deciding had retained a new at about fault for the same Gaines’s close to the date of the time as and Southwest Thus, hearing. conclude that the court first no-evidence we filed; by denying discretion judgment motion was did not abuse its discovery.2 time first because adequate had not had for continuance motion days date brief continu- which was less than 21 before the contends in his that the However, hearing. pres- granted did not ance also should have been because of the summary judgment hearing trial in his of the re- ent this contention to the notice Thus, hearing. newly-retained his was not or at the ceived counsel continuance motion appellate granted preserved not been review. effective until the court the motion it has counsel, 33.1(a)(1)(A). See P. Tex.R.App. for withdrawal and substitution *12 contract, only recently fraud, had negligence, retained new coun- conspiracy, Gelais, sel. conversion), See St. 769 at 253-54 S.W.2d whether acted (no denying abuse of discretion in continu- Guaranty’s as Southwest Gaines’s and/or only ance where new counsel retained one agent, and whether was entitled to trial). week before exemplary damages because Gaines and/or Guaranty acted with malice. Kelly also contends that the court adequately The motion identifies the ele abused by its discretion his denying first ments of each claim or contention for continuance motion because there had not Guaranty which Gaines and Southwest al adequate discovery. been time for The leged that there was no evidence. With primary factors to consider when deter discovery, Kelly would have been minimal mining whether there has adequate been to respond able affidavit with some discovery time for are: the nature of the evidence for each of the challenged ele case, the of necessary nature the evidence ments, assuming such evidence existed. motion, to controvert the no-evidence Int'l, See Restaurant Teams 95 at S.W.3d length of time the case had been ac 40; Constr., Dickson Inc. v. Fid. & 339 — Greenwood, tive. McMahan v. 108 S.W.3d Md., 353, 5 Deposit Co. S.W.3d 356 of 467, (Tex.App.-Houston 498 [14th Dist.] denied). 1999, (Tex.App.-Texarkana pet. 2003, denied); Trostle, pet. 77 Trostle particularly This is true because is (Tex.App.-Amarillo S.W.3d 917 presumed investigated to have his case Int'l, рet.); see also Restaurant Teams filing before suit. See Restaurant Teams Inc. v. Corp., MG Securities Int'l, Martinez, 340; 95 S.W.3d at (Tex.App.-Dallas no pet.); Thus, S.W.3d at 591. the second factor Antonio, City Martinez v. San of ruling. tends favor the court’s S.W.3d 591 (Tex.App.-San Antonio noted, Kelly’s pending As suit had been denied). pet. Other factors to con years. for more than clearly three This sider include: the amount of no- time the Thus, ruling. favors the court’s two of the file, evidence motion had been on whether primary weigh three factors in favor requested the movant had stricter time However, ruling. of the re- court’s three discovery, deadlines for the amount of dis maining weigh Kelly’s four factors in favor. covery already place, that had taken discovery whether the deadlines that are Gaines’s and Southwest place in specific vague. were or Id. summary judgment motion had been on Thus, allowed. file the minimum time primary The factors weigh favor Kelly. this factor favors of the court’s ruling. Because of the nu claims, counterclaims, merous and third- discovery There were no deadlines party pleaded, claims case somewhat summary in place judg at the time the complex. Kelly *13 Kelly suggests the docket control order. Therefore, not he did tinuance motion. that, Guaranty was because Southwest fоr review. preserve appellate this issue from 2001 to April without counsel June Dist., Indep. v. Dallas Sch. See Watson 2002, by “no action be taken or could 2004, 208, (Tex.App.-Waco 227 135 S.W.3d against Guaranty” during Southwest & pet.); no Inc. v. TNT Concrete Tempay, period.3 disagree. We (Tex. Constr., Inc., 517, 37 S.W.3d 520-21 2001, denied); pet. v. App.-Austin Green discovery clearly permit The rales Friendswood, 588, 22 594 City S.W.3d any entity, on or of person be served 2000, pet. (Tex.App.-Houston [14th Dist.] regardless represent of are they whether denied). Kelly’s Accordingly, we overrule ed P. by e.g. counsel. See Tex.R. Civ. third issue. 191.3(a)(2). It would then be incumbent recipient discovery of the the take Summary First No-Evidence necessary steps
the to answer the discov Judgment Motion ery failing the consequences or suffer respond. Kelly in his issue contends second by and sustaining Gaines’s erred
Kelly diligently failed to pursue discov- no-evidence Southwest first ery three-year period most of during the summary judgment Because motion. and Guaranty before Gaines non-suit, challenged Kelly’s this motion summary judgment their filed motion. and South- Therefore, against claims Gaines this factor favors court’s Inti, negligence, conspiracy, west ruling. See Teams 95 Restaurant conversion, whether acted S.W.3d 341. Guaranty’s agent, as or Southwest Gaines’s factors Quantitatively, the overall Kelly was entitled tо exem- whether evenly fairly are for and distributed plary because Gaines damages and/or against However, ruling. the court’s Guaranty acted malice. with pursue diligently fact that failed to in review- apply We the same standard discovery despite years three to do having as summary judgment ing a no-evidence so and the fact that claims do not reviewing a we would in directed verdict. present legal novel theories and could Ranch, Inc. v. 118 King Chapman, See mo have survived Watson, 742, (Tex.2003); S.W.3d 750-51 minimal investigation tion with discov Thus, review the 135 at 219. ery, heavily “[w]e S.W.3d weigh in favor of court’s most light evidence in the favorable Accordingly, the court not ruling. did contrary evi- non-movant, disregarding all denying Kelly’s abuse its discretion motion, Id. A no-evidence and we dence and inferences.” first continuance overrule McMahan, if the will 108 be defeated his first issue. See S.W.3d that he take action makes similar observation with re- could gard pro litigant se during to Gaines's status as a period. this during period, allege this but does 408 produces
non-movant more than give a scintilla dant’s conduct ... rise to liabil would probative genuine evidence to raise a ity only parties’ it because breaches issue of material fact on the elements chal- agreement, plaintiff’s ordinarily claim lenged by the movant. Id. only County sounds in contract.” DeWitt Parks, Co-op., Elec. Inc. v. 1 S.W.3d only
We consider those grounds ex (Tex.1999) (quoting 105 Sw. Bell Tel. v.Co. pressly presented by the movant (Tex.1991); DeLanney, 809 494 S.W.2d summary judgment motion USA, Cook, OXY Inc. response. non-movant its See Cincinnati denied)). Thus, Cates, (Tex.App.-Tyler pet. Ins. v.Co. Life (Tex.1996); present any failed to evidence that Indep. McConnell v. Southside Dist., (Tex.1993); him Sch. Gaines and owed Russell, Protective Ins. Co. v. a legal duty they other than the duties Life *14 274, 2003, S.W.3d 285 (Tex.App.-Tyler pet. According him owed under the contract. denied); Edwards, Fletcher v. 26 ly, granted S.W.3d properly the sum 66, denied). 2000, 74 (Tex.App.-Waco pet. mary Kelly’s negli judgment motion as to 166a(i); gence P. claim. See Tex.R. Civ. “When the trial court specify does not Laboratories, Martinez Abbott 146 the for summary judgment, basis its the 260, 272 (Tex.App.-Fort S.W.3d Worth appealing party must show it to is error denied); One, v. Bank pet. Williams base it on any ground in the asserted Tex., N.A., (Tex.App. 117 Doe, motion.” Star-Telegram, Inc. v. pet.). -Waco no (Tex.1995); Watson, S.W.2d respond did not to Gaines’s Guaranty alleged Gaines and Southwest Guaranty’s allegations and that in summary their first judg- no-evidence support he no evidence to produce could ment motion produce that could conspiracy of his and various elements prove following evidence to the elements of Accоrdingly, conversion claims. the (1) (2) breach; his negligence duty; claim: properly granted the (3) cause; proximate and damages. motion claims. Id. as to these that, response, Kelly jury asserted if a refused to find that Gaines and Southwest Guaranty and Southwest Gaines Guaranty were fraudulent the manner alleged produce that could no evi they in which failed to loan him the monies their anyone acting dence that was as commitment, contemplated by the loan agent negotiating “for purposes they then negligent failing “were to do Kelly responded loan.” with evidence he reasonably] prudent person that which a genuine contends raises a issue material organization or would have done under the question Thompson fact on the of whether same or similar circumstances.” acted as Guaran Gaines’s only The basis asserted ty’s agent. Kelly’s consists of his Kelly to establish that Gaines and South attorney own Bul- affidavit and that of his Guaranty legal duty west owed him a was lard. obligations
their under the loan commit that: Kelly stated his affidavit However, properly-executed ment. a loan (cid:127) to me that he Thompson “represented commitment is a binding e.g. contract. See Co., Russell Fur- Mortg. working Gibson v. Drew was Gaines. ther, (Tex.App.-Houston application the loan аnd associat- [14th Dist.] n.r.e.). paperwork writ ref'd the defen- ed for the loan was submit- “[I]f (cid:127) him that Gaines advised Thompson Thompson Mr. on Southwest ted an Guaranty needed Guaranty Mortgage Corporation let- on the terhead”; appraisal property; done (cid:127) him did that he Gaines advised (cid:127) and advised me “Thompson called me to necessary paperwork, have all required that Russell Gaines for- replied that he had which Bullard $8,000.00‘good deposit”; faith’ paperwork to Gaines’s warded the (cid:127) Thompson Bullard that advised agent Thompson; paperwork need to be initial would (cid:127) deny Thompson did not Gaines changed reflect that nature agent; was his transaction a refinance rather was (cid:127) with purchase; “personally familiar than Bullard sent paperwork fact all loan was (cid:127) Thompson Bullard that advised Gaines Russell directly to Gaines.” an and Southwest needed property; on appraisal done light in a most favorable Viewed Kelly, Bullard’s and affidavits (cid:127) Thompson advised that Gaines and South provide evidence have approve appraiser would as an west relied chosen. intermediary process paper loan their *15 Bullard stated in his affidavit that: Kelly and to Kelly explain work with (cid:127) “personally relayed Thomp- he to Mr. requirements securing for the loan. their surrounding son all facts Mr. affidavit, did Bullard’s Gaines According to in property”; interest [the] deny Thompson that was Gaines’s (cid:127) [him], “Thompson forwarded to for to him as agent when Bullard referred by Kelly,
completion paper- Mr. loan such. work and documents under associated on Apparent authority Texas is based S.G.M., which letterhead of stood a estoppel. may arise from It either Guaranty Mortgage Southwest knowingly permitting agent an principal Corporation”; authority having to hold out as herself (cid:127) lack assisted or actions which completing principal’s he a agent
paperwork ordinary all such care as clothe an “and returned docu- lead- Thompson authority, ments to for for- with the indicia of thus Robert warding ing reasonably prudent person to be- to Russell Gaines and authority Guaranty”; agent lieve has the that she to exercise. purports (cid:127) all the loan during applica- times “[a]t Baptist Hosp. Sys. Sampson, process, Thompson repre- tion Robert Meml. (Tex.1998); me Walker working sented to that he was for S.W.2d accord Gaines, Corp., Rock Power applica- Russell and all of Ins. Servs. v. Bottle paperwork (Tex.App.-Houston tion on S.W.3d 550-51 was submitted pet.). Guaranty Mortgage Corpo- [14th Dist.] letterhead”; ration most to Kel light Viewed in a favorable (cid:127) ly, presented more than a scintilla him that the initial he advised Thomp issue of whether
paperwork changed need to be evidence on the would son was of Gaines and Southwest agent to reflect that the nature of trans- an Servs., 108 Guaranty. action was a rather than a See Walker Ins. refinance Accordingly, the court S.W.3d at 551-52. purchase; Summary granting summary judgment erred Second No-Evidence Judgment Motion agency. motion on the issue Kelly contends his fourth issue that Gaines and Southwest by granting the court erred Gaines’s and alleged that could produce no evi Guaranty’s second no-evidence dence of support malice to an award of summary judgment motion on his contract exemplary damages. Kelly did not re and fraud claims. spond However, allegation. this malice Gaines and Southwest con- only
is not the exemplary basis on which tended in this motion that could damages may be awarded. See Tex. Civ. produce support no evidence follow- 41.003(a) (Vernon § PRAC. & Ann. Rem.Code (1) ing elements of his contract claim: that Rather, Supp.2004-2005). exemplary parties agreement ever reached on all damages may proper be awarded in a case contemplated material terms related to the plaintiff fraud, malice, if the shows or (2) loan; that acted in his individual Gaines gross negligence on the part of the defen capacity respect negotiation with to the or (3) commitment; dant. Id. of the loan execution commitment; party to the loan Kelly alleged in his peti- first amended (4) Kelly performed all conditions tion that he is exemplary entitled to dam- precedent; suffered ages because the defendants acted with damages. Thus, gross fraud and negligence. even A is a unilat loan commitment though Kelly produced no evidence of mal- agreement by eral or a lender to bilateral ice, exemplary damages his claim for sur- Farms, Inc. v. make a loan. See Valdinct vived Gaines’s and Southwest Assocs., Inc., Brown, Beasley & no-evidence motion be- *16 S.W.2d Antonio (Tex.App.-San 693-94 cause such damages may be awarded on a 1987, writ); Real Est. no B.F. Saul Inv. finding of gross negligence. fraud or Ac- McGovern, Trust v. 683 534- S.W.2d cordingly, by granting the court erred the writ); (Tex.App.-El 35 no Paso summary judgment Kelly’s motion on (Bryan Dictionary Black’s Law 955 A. exemplary claim for damages. 2004).4 ed., ed., The Garner 8th West money a contract to loan terms of material summary, In properly granted the court (1) (2) amount, maturity are the the loan Guaranty’s Gaines’s and Southwest first (3) (4) date, rate, and the the interest summary judgment no-evidence motion on repayment Stanley Boot terms. See T.O. Kelly’s negligence, conspiracy, claims for Paso, Co. v. Bank El of by and conversion. grant- The court erred Bank, (Tex.1992); 221 Beal S.S.B. ing Kelly’s allegation the motion on that Schleider, (Tex.App. 653 Thompson acted as Gaines’s South- and/or denied). 2003, pet. -Houston [14th Dist.] Guaranty’s agent Kelly’s west and on claim exemplary damages. Accordingly, we Here, commitment con the loan Kelly’s sustain in part second issue The contem tains these four elements. $2,010,000. The part. plated overrule it loan would be for (such 4. Black’s defines a "loan commitment” period specified purpose as as and for a estate).” Dictionary Blacks Law binding promise buying "[a] lender’s to borrower real ed., ed., specified money (Bryan to lend a 8th West amount of at a A. Garner rate, 2004). specified certain interest usu. within a
4H specifically a defendant to requires term and one-year would have note be- precedent interest fixed annual conditions deny particular bear at the would prove And loan describing required of 14.5%. will be plaintiff rate fore the balloon, contemplated However, parties Kelly as a make this type does not them.7 monthly would interest Kelly that make Because appellate in his briefs. assеrtion at pay payments principal balance argument make Kelly does not this the loan’s Black’s the end of term. See summary judgment his appeal and because at Dictionary (defining “balloon Law respon- present any not other response did Co., note”);5 Stanley T.O. Boot argument sive cf. 221-22 no contract (finding
S.W.2d at
regard
performance
contention with
only
presented
plaintiffs
where
uphold
must
precedent, we
of conditions
of the
to loan mon-
one element
contract
failure to
ruling
Kelly’s
as to
the court’s
ey).
necessary
prece-
conditions
perform the
Star-Telegram, 915 S.W.2d
dent. See
re
In
Watson,
473;
412 (2) made; representation
material was the sentation that the loan “awas done deal” (3) false; representation was when the led him “to assume that the Defendants made, representation speaker was the would in fact fund the loan.” Viewed in a knew it was recklessly false or made it light Kelly, produced most favorable to he any knowledge without of the truth and as of more than a scintilla evidence that (4) assertion; positive speaker a the made Thompson, as Gaines’s the representation with the intent that the Guaranty’s agent, for to act intended (5) it; party other upon should act the representation. on the See v. Rio party in representa- acted reliance on the Computerland Group, Grande 128 S.W.3d tion; and party thereby 759, 2004, the suffered (Tex.App.-El pet.); 770 Paso no Pritchard, injury.” Johnson 575, v. Brewer & Thornburg, v. 113 S.W.3d 587- Alford P.C., (Tex.2002) 193, 73 211 n. 2003, S.W.3d (Tex.App.-Texarkana pet.). no Bank, N.A., (quoting In re FirstMerit regard to of evidence With (Tex.2001) (orig.proceed- that, damages, Kelly contends because of ing)); Hopkins, Clifton Gaines’s fail and/or 757 (Tex.App.-Waco pet.). no loan, contemplated ure to fund the he was regard With to evidence of a ma funding, find which re forced to alternate terial misrepresentation, Kelly responded ownership of the sulted a diminution that Thompson, as Gaines’s and Southwest have interest he otherwise would held Guaranty’s agent, him represented to Cowtown Park. the undisput loan was “a done deal.” It is Generally, when ... fraud is associated ed that contemplated loan was not purchase proper- with the or transfer of funded. have already We determined that ty, the victim is to recover the entitled genuine a issue of material fact remains on difference between value of that the question was whether parted with In addi- and that received. agent of Gaines Southwest Guaran and/or tion, the victim is also entitled to recover ty. in a light Viewed most favorable to pecuniary loss suffered otherwise as Kelly, produced he more than a scintilla of consequence upon reliance his misrepre evidence on the issue of material misrepresentation. Hatz, sentation. See Rosas v. 147 S.W.3d Reagan v. Lebco Tex. Commerce Bаnk (Tex.App.-Waco pet.). 564-65 (Tex. Constructors, Inc., denied). 1993,writ App.-Corpus Christi regard
With to evidence of reli ance, Kelly responded that he relied failure to fund alleged misrepresentation to his detriment contemplated loan diminished his own- because he did not seek other sources of ership interest in the Cowtown Park funding. light Viewed most favorable more than a of evidence that he scintilla Kelly, produced he more than a scintilla damages suffered as a result Gaines’s *18 of evidence on the issue of reliance. See Guaranty’s alleged fraudu- and Southwest Constructors, Co., Lyda Inc. Mfg. v. Butler lent conduct. 632, An (Tex.App.-San 103 S.W.3d 638-39 presented In summary, Kelly because 2003, pet.); tonio no Herrin v. Med. Pro on each of more than a scintilla of evidence (Tex. Co., tective 306-07 challenged of his fraud claim the elements denied). App.-Texarkana pet. in sec- Gaines’s and Southwest intent, summary mo- regard judgment
With to evidence of ond no-evidence tion, granting the mo- Kelly responded Thompson’s repre- the court erred Realty is the alter Conversely, tion that Commercial Kelly’s fraud claim. tion on not err ego Thompson, motion as did properly granted Re Thompson’s and Commercial Kelly’s Accordingly, granting to contract claim. we summary judgment mo and Kelly’s pаrt alty’s fourth issue in no-evidence sustain allegation. ego alter See part. overrule it tion on Enters., Inc., 772 S.W.2d Rogers v. Ricane Realty’s Thompson’s And Commercial Suiter, (Tex.1989); Guthrie Summary Judgment No-Evidence (Tex.App.-Houston [1st 825-26 S.W.2d
Motion 1996, writ); Barraza v. Eure Dist.] cf. Co., (Tex.App.-El 228-30 ka S.W.3d Kelly contends his fifth issue that (such denied) specificity pet. Paso by sustaining Thompson’s court erred and summary judgment ev required where summary Realty’s Commercial no-evidence only pages). consisted of idence against on claims judgment motion contract, fraud, them for breach of response Thompson’s to fiduciary Kelly’s allega- duty; breach of regard Realty’s Commercial contentions Thompson tion that Commercial and/or claim, Kelly identified ing Kelly’s contract Realty agents of Gaines were and/or evidence attached summary judgment Kelly’s alle- Guaranty; and on Kelly general to terms.8 response his gation Realty Thomp- that Commercial is “disputed then six fact issues” but recites ego. son’s alter single any a reference to provide does not response attached to his to sub document Realty Thompson and Commercial “disputed fact is allegedly stantiate the summary judgment contended in their mo a volumi sues.” Because attached produce tion that no evidence could summаry to nous series of documents his Realty ego is the alter Commercial identify and did not judgment response Thompson. Kelly responded with evi any support to his con particular evidence dence that is the sole share issues of material fact genuine tention that holder, officer, and director of Commercial elements of his con exist on the contested Realty corporate and controls the bank claim, by grant court did not err tract However, Kelly provide account. did not Realty’s ing Thompson’s Commercial any single reference to document attached summary motion on judgment no-evidence to alle response his substantiate these Rogers, 772 Kelly’s contract claim. See gations. Kelly’s response thirty-one Guthrie, 81; at 825- pages long, excluding signature page pages and attachments. There are 526 appended Kelly’s response.
documents Realty Thompson and Commercial mo contended in their Because attached a voluminous no evidence summary judg- produce tion that could series of documents to his of his any following elements response identify support and did not ment Thomp- claim them: particular support his conten- fraud "Non-Movant, pleadings, as example, Roger Kelly, Petition and Movаnts 8. For Amended evidence, genuine issue of material fact ex- claims referenced in hereto, as to Non-Movant’s claim of Breach of ists appendix attached filed with this an Kelly, submits affidavits of Contract—and Bullard, incorporated by response such refer- *19 Meeks, discovery the form of purposes if recited verbatim ence for all as Interrogatories, responses to docu- Movants’ herein.” evidence, mentary Second Non-Movant's 414 tionship plaintiff between the and defen Realty any rep- or made
son Commercial (2) dant, facts; the defendant must have or omissions of material resentations duty (2) fiduciary plain its to the repre- breached Kelly any alleged that relied (3) tiff, (3) the defendant’s breach must sentations; Thompson that or Commer- injury plaintiff result in to the or benefit act; any Realty cial committed intentional Wilson, to the defendant. See Punts v. (4) any Kelly damages that suffered be- 889, (Tex.App.-Texarkana 137 891 S.W.3d misrepresentations; any alleged cause of 2004, Trucking Abetter pet.); no accord (5) Realty Thompson that or Commercial (Tex. 503, Arizpe, Co. v. 508 S.W.3d Kelly with in- any representation made App.-Houston pet.). [1st Dist.] (6) him; tent to deceive that “any damages suffered at all.” regard to evidence of a With reliance, Kelly responded regаrd fiduciary relationship, to evidence With appellate Advisory Agreement contends his briefs that' the Fee made A jury Thomp- Realty agent. principal- a “could well determine Commercial his [that fiduciary ‘a constitutes a representation agent relationship that the loan was son’s justifiably upon by relationship a matter of law. done deal’ relied as See was] Bank, However, Kelly.” Kelly’s summary judg- v. Tex. St. Shands denied); pet. reli- Antonio response (Tex.App.-San ment does not address the Ltd., Corp. ance element of his fraud claim. Accord- Exxon v. Breezevale 82 S.W.3d ingly, granted (Tex.App.-Dallas pet. de properly Johnson, nied); at summary judgment motion as to also 73 S.W.3d 200. see Thus, against Thompson Kelly produced claim and Com- more than scintilla fraud a Realty had a Realty. See Tex.R. Civ. P. that Commercial mercial 166a(i); Martinez, 272; fiduciary relationship at him. 146 S.W.3d with Williams, at 15 S.W.3d Commer On the issue of whether con Realty and Commercial fiduciary duty, its it is Realty cial breached motion tended their Realty ob undisputed that Commercial produce no evidence to could Kelly. a loan commitment for Kel tained following of his support elements however, argues Real ly, that Commercial duty fiduciary claim breach of fiduciary duty ty its because breached (1) Realty9 them: that Commercial failed (or Realty have knew should Commercial (2) Kelly; to obtain a loan commitment known) Guaranty did not that Southwest knew that South Realty that Commercial to fund the con adequate have resources Guaranty lacked sufficient Resources west loan. templated (3) loan; contemplated fund any specific duties In addition to Realty any special has rela Commercial giving rise to a agreement an required give would rise tionship with which á fiduciary owes at fiduciary relationship, a (4) fiduciary duty; that Commer faith and fair duty good minimum a Realty Kelly’s agent as after cial acted Tractor Co. v. Crim Truck & dealing. See 11,1998. December Corp., 823 S.W.2d Transp. Intl. Navistar (Tex.1992); Punts, at of fidu
The elements of a breach Co., 892; Trucking Abetter fiduciary rela- ciary duty claim are: discussing of Kel- ruling the merits hereinafter when we have affirmed the court’s 9. Because Realty Thompson’s fiduciary duty ly’s is not claim. that Commercial breach of Realty only ego, we Commercial alter refer *20 fiduciary duty, Realty mercial breach its Advisory Agreement Fee re- 508. The as the motion diligently properly granted court Realty “to the quired Commercial fiduciary [Kelly].” and breach of financing Kelly’s on behalf of to fraud pursue the Thus, Advisory Conversely, from the claims. because may implied duty it be when viewed than a sсintilla of evidence Agreement, particularly provided Fee more that Kelly, Thompson most to was the light in a favorable of whether on the issue Realty’s duty good of faith Commercial Southwest Guaran- agent of Gaines and/or dealing required fair it to seek a lend- the motion ty, granting erred funding the con- capable er which was of Accordingly, we sus- contention. on this templated loan. in and overrule Kelly’s part tain fifth issue part. it in
On the issue of whether Commercial Realty fiduciary duty its howev- breached Compel Motion To er, Kelly summary judgment produced Kelly contends in his sixth issue Realty that knew or evidence Commercial that the court abused its discretion to know that Guar- had reason Southwest to compel his motion to Gaines denying anty sufficient resources to fund lacked deposition questions regarding answer Accordingly, loan. the court contemplated funding contemplated for the source of granted summary judgment properly Guaranty re loan. Gaines Kelly’s claim for of motion as to breach (1) is spond sought that the information fiduciary duty. relevant, closely is “a held secret Thompson Realty and Commercial con (3) “revealing that proprietary,” and [and] summary judgment tended their motion detrimental to the information would be produce could no evidence that relationship.” business they agents or either of them acted as nor Southwest Guaranty. Kelly Neither Gaines and/or Kelly’s motion to com- response of filed a responded with the same evidence he compel the motion to pel. The court heard response fered to Gaines’s and South Kelly’s continuance together mo with second Guaranty’s summary judgment west Thus, and Southwest Guar- tion on this issue. as we have held motion Gaines’s hereinabove, summary judg- anty’s than second no-evidence presented more hearing, Kelly ar- ment motion. At this scintilla of on the issue of wheth evidence compelled to gued that Gaines should be agent er an was Servs., it question because is relevant Guaranty. See Ins. 108 answer Walker Guaran- to the issue whether Southwest S.W.3d at 551-52. to fund the ty adequate had resources summary, because failed to contemplated Kelly explained loan. specify particular responsive evidence fraud claim because this is relevant his Thompson’s Realty’s and Commercial tend to show whether Southwest it would regarding contentions it perform intended to when allega- contract claim and alleged representation. made the Realty is the alter tion Commercial However, Supreme Court has held properly ego Thompson, of evidence “is so weak that type motion contentions. that this granted the as these in- no evidence” of a bank’s Kelly failed to address the reli- it constitutes Because allegedly promised not to fund an of his fraud claim tent ance element Co., Stanley Boot response and because loan. See T.O. Bank, 222; accord Beal present he failed to that Com- S.W.2d *21 Thus, and support response S.W.3d at 649-50. the court did not of his to Gaines’s by denying Kelly’s Guaranty’s abuse its discretion mo- Southwest first no-evidence Moreover, compel. Accordingly, tion to we overrule summary judgment motion. Kelly’s sixth issue. Kelly indisputably years had over three depose and and secure Gaines n
Motions To Reconsider/Motion necessary evidence from his father-in-law For New Trial but failed to do so. eighth contends in his and seventh against claim Regarding Kelly’s fraud respectively issues that court abused Guaranty, his Gaines and Southwest brief by denying its discretion' his motions to affidavit, Kelly’s cites Bullard’s second own summary prior judgment reconsider its affidavit, from excerpts Kelly’s, second and rulings by denying and his motion new Bullard’s, depositions as Thompson’s and trial. “additional” evidence. summary a grants After court a Kelly’s claims Regarding motion, judgment generally has Realty, his Thompson and Commercial obligation to consider further motions beyond brief cites no additional evidence adjudicated by summary on the issues respond- that when he which was available judgment. Hosps. See Methodist Dal of and Real- Thompson’s ed Commercial Communicators, Inc., las v. Corporate ty’s summary judgment motion. (Tex.App.-Dallas Accordingly, say cannot that we denied); Republic writ Martin v. 1st denying Kel- court abused its discretion Bank, Worth, N.S., Ft. 799 S.W.2d its ly’s motions to reconsider (Tex.App.-Fort 488-89 Worth writ motion for new rulings and his denied). A review of the contentions Dallas, Hosps. trial. See Methodist Kelly’s regarding brief each of the claims of Martin, 883; at 488- 799 S.W.2d adjudicated by summary judgments Thus, seventh we overrule confirms that no oc abuse discretion. eighth issues. curred. Regarding Kelly’s negligence, con Denial of Sanctions claims,
spiracy, and conversion his brief Guaranty beyond cites no additional that evidence and Southwest Gaines him granted available to when the court contend their first cross-issue10 by denying Gaines’s and Southwest first court abused its discretion Kel no-evidence motion. their motion for sanctions because after the ly’s production of Meek’s affidavit Regarding Kelly’s contract claim summary judg granted two had .Guaranty, against Gaines and Southwest ments in their favor. Gaines South signed by his brief cites second affidavit Kelly and his Guaranty west contend Bullard, attоrney excerpts his own from dis deliberately counsel withheld “either Thompson’s depositions, and Gaines’s missing coverable evidence or created signed by an affidavit his father-in-law piece evidence.” However, as “additional” evidence. Meeks vary affidavit does not One of the issues raised Bullard’s second no- in their second appreciably from the one offered perfect Appellate appeal properly Procedure their own notice of 10. Pursuant to Rule of 25.1(c), cross-appeal. filed their Gaines and Southwest curiam) 2003) TransAmerican (citing (per summary judgment motion was Powell, Corp. claim fail be- Nat. contract should Gas (Tex.1991) signed (orig.proceeding)). the commit- *22 cause Meeks never 917 Guaranty ment. Gaines and Southwest properly re- Kelly responds that Meeks production for on request had served a at request production for sponded to the party when he was a to the suit Meeks re- counsel construed the issue because documents, including corre- seeking “all seeking only “correspondence or quest as spondence or other records of communica- communications,” a which other records of tions, attempted to the sale or sale related arguably is not. letter оf commitment purchase attempted purchase or or of the addition, Guaran- Gaines’s and Southwest re- since 1990.” Meeks [Cowtown Park] recognition reflects their ty’s own brief responsive that he had no items sponded any wrong- for primary responsibility request. to this regard ful in this lies with Meeks: conduct granted The court Gaines’s and South- in the The evidence before the Court Guaranty’s summary no-evidence west and his form of Dr. Meeks’ affidavit on contract claim judgment motion responses requests production to the for 29, May Kelly against them on 2008. filed only can lead to one of two conclusions. rul- original his motion to reconsider this being engaged that Dr. Meeks The first ing 16. an affidavit on June included turn discovery by failing a abuse 18, from in his Meeks dated June 2008 properly documents to a responsive over response Thompson’s and Commercial production for or he request [Dr. served Realty’s no-evidence un- has a statement Meeks] false filed motion, which filed on June 19. Kel- der oath to the Court. ly supplement filed a motion to his motion 2004) Cross-Appellants (May Br. 15 Of ruling to reconsider the on Gaines’s added). (emphases Guaranty’s summary judgment reasons, may have with Meeks’s affidavit on June 27. Gaines For these allegedly offen- Guaranty and Southwest then filed their determined that Meeks’s They motion for аttributed to sanctions. contend sive conduct should be they are entitled to Kel- See Howell v. Tex. sanctions because or his counsel. Commn., ly deliberately Compen. and his counsel “either 143 S.W.3d Workers’ pet. withheld discoverable evidence or created de- (Tex.App.-Austin 448 Olive, nied); missing Finlay of evidence.” v. piece 2002, no (Tex.App.-Houston [1st Dist.] ruling a trial We review court’s pet.); Spohn Hosp., see also an sanctions motion under abuse-of- say cannot the court Accordingly, we Cummings, discretion standard. Cire v. by denying Gaines’s abused its discretion (Tex.2004). A 134 S.W.3d sanc Guaranty’s motion for sanc- and Southwest “just,” it “must tion must be which means Thus, we overrule their first cross- tions. directed the abuse and toward be issue. in remedying prejudice caused to the be party, nocent and the sanction should And Gaines’s the offender. The trial court upon visited Counterclaims whether attempt must determine and Southwest to counsel offensive conduct attributable in their second cross-issue only, Spohn or contend only, party to the to both.” (Tex. Kelly’s no- by granting the court erred Hosp. Mayer, summary judgment motion on Release Of Documents Under Seal fraud, their counterclaims for malicious Gaines and Southwest contend negligent misrepresentation, prosecution, in their third cross-issue that the court conspiracy. by denying abused its discretion their mo- elements, Among challenged other certain tion release documents which contended his Kelly filed with under seal. motion that Gaines and Southwest Guaran issue five of This involves Gaines’s ty damages could no evidence of produce Guaranty’s requests produc- *23 any of their counterclaims. Gaines and By requests, these tion. Gaines Guaranty responded that the Southwest Kelly asked to: damages they have suffered are the attor accounting 4. Produce all financial and ney’s they fees have incurred' relating Property records to the in- However, attorney’s against suit them. any cluding operation business generally unless fees are recoverable relating Property, or located on to the provided by or contract. See statute Gulf general to including but not limited Low, 561, 79 States Utils. Co. records, ledgers, payroll bank state- Fullenweider, (Tex.2002); Brown v. ments, records, deposit slips, bank 340, (Tex.App.-Texarkana 135 S.W.3d canceled checks. denied). Attorney’s have pet. fees in a in which permitted been fraud case any 7. Produce all records that show attorney’s prior were incurred in fees loans, contracts, agreements, transac- litigation party with a third as a result of tions, money or other or transfers fraudulent conduct. Sеe defendant’s you and property among or between Rappeport, Lesikar v. 33 S.W.3d Stocker, III. C.W. denied). (Tex.App.-Texarkana pet. any all records that show 8. Produce pros the context of malicious loans, contracts, agreements, transac- claim, attorney’s may ecution fees be tions, money transfers of or other or damages plaintiff awarded as if the first you and property among or between special establishes that he has suffered Thomas L. Bullard. damages alleged as a result of the mali reflecting all records or 10. Produce IBP, prosecution. Klumpe, cious Inc. v. any be- regarding communications (Tex.App.-Amarillo 101 S.W.3d 477-78 you and Stocker III. tween C.W. denied).
2001, pet. or reflecting 11. Produce all records however, Here Gaines’s communications be- regarding any special no Guaranty’s offered evidence and Thomas L. Bullard. you tween from claim for attor- damages aside their objections to these litigation. Kelly in this Ac- raised several ney’s fees incurred re- contending primarily cordingly, they produced requests, no evidence of by the quests sought protected documents damages, properly granted court argued attorney-client privilege.11 motion on their Kelly’s summary judgment Thus, and Southwest response in his to Gainеs’s counterclaims. we overrule Gaines’s compel production Guaranty’s motion Gúaranty’s second cross- being withheld were the documents issue. requests were objected requests product privilege and that also these 11. sought protected by work overbroad. documents Co., (Tex.App.-Waco they related Stock- privileged because evidentiary The orig. proceeding). representation of him er’s and Bullard’s by the docu- may be satisfied requirement and Southwest the suit DuPont, involving ments See prior and in the suit themselves. at 223. Park. the Cowtown trial privilege log filed a with the attorney-client privilege shields The being documents identifying made for the communications “confidential as follows: withheld facilitating pro- the rendition of purpose of File”; to the' client.” by legal fessional services 1. “Memo to authored C.W. III; 1-19-99; Stocker, 503(b)(1). dated Tex.R. Evid. au- Minceberg; to David Letter presented Because Bullard; thored Thomas L. dated than privilege the asserted other support 2-1-99; and because his the documents themselves Mincebert; au- 3. Letter David non-specific rather privilege log provides a Bullard; L. dated thored Thomas documents, it of the withheld *24 identification 2-2-99; is satisfied his burden doubtful correspondence containing
4. Folder showing that the prima to make a facie relating to the creation of drafts privileged. See withheld documents are Diamonds, Ltd., entity the Eight Maker, Nevertheless, at 143 S.W.3d 914. eventually purchased the sub- in- the trial court conducted an because ject in said property; all documents documents, have camera review of the we February, are dated folder within themselves to de- reviewed the documents they privileged. are See termine whether Monsanto, at 929. to presented support evidence He tendered these privilege. asserted do not The documents issue court documents under seal. any communications contain or refer motions, hearing At a on several Rather, attorneys. and his between explained court that it had examined the (1) reflect: the conversa the documents withheld documents and had concluded and Bullard had with Gaines tions Stocker protected by were the documents Kelly’s they and the actions took on behalf attorney-client privilege. a loan attempt in an unsuccessful to obtain (2) Guaranty; their unsuc party A seeks to withhold from Southwest who purchase discovery attempt negotiate that the items from on the basis cessful by party; a third pri- property must make a of the privileged documents are an attempt to structure showing mа that the documents are their successful facie purchase financing arrangement other subject privilege to the asserted. re Co., Eight part via the Diamonds property E.I. de Nemours & 136 the DuPont (Tex.2004) not these documents do (orig.proceed- nership. Because 223 S.W.3d attorney-client com showing facie contain confidential ing). Generally, prima this attorneys Kelly’s log identify- munications and because by serving privilege is made and, legal capacity in a in these acting if a hear- were not ing the withheld documents instances, held, attorney-client privilege is by presenting sup- ing is Maker, implicated because the communications privilege. See In re porting “the rendition of at issue do not involve (Tex.App.-Fort Worth legal services.” See Tex.R. professional In re Monsanto orig. proceeding); 503(b)(1); Guaranty’s motion to unseal the Gray, Evid. see also Pondrum v. (Tex. the court un- App.1927, 298 S.W. Comm’n documents tendered to Bivins, In re holding approved); der seal. We remand this cause to the (Tex.App.-Waco proceedings trial court for further consis- curiam); orig. proceeding) (per Navigant opinion. with this tent Wilkinson, Consulting, Inc. v. 220 F.R.D. concurring GRAY (N.D.Tex.2004). Chief Justice
467, 474 dissenting. Thus, its discretion abused allowing Kelly to these docu- withhold GRAY, Justice, concurring TOM Chief Accordingly, we ments from disclosure. dissеnting. sustain Gaines’s and Southwest third cross-issue. PRELUDE PROCEDURAL past opinions In the we have had so few Conclusion particular problems that no withdrawn determined that the trial court We have opinions created if the were with- were rendering erred separate an order from the new drawn fraud claim Gaines and being problem The opinions issued. Guaranty, on claim recently that we have withdrawn and reis- against Gaines and Southwest of opinions, sued an inordinate number exemplary damages, and on the issue for rehearing, with and without motions for agent was the of whether rehearing, and when on motion with *25 Guaranty. Southwest We Gaines and/or requesting responses. and without Issu- have also determined that in ing multiple opinions appeal the same by denying abused its discretion Gaines’s it possible creates confusion. This makes Guaranty’s motion to un- and Southwest opinions from this person for a to have two the tendered to the seal documents Court, by certified the clerk as au- both However, we have found court under seal. thentic, are not the same. This does which of respect to the remainder no error with present problém not a substantial when by Kelly or cross- presented the issues the opinion of another in the same the issuance by and presented issues rarely great- done. But due to the case is Guaranty. majority of ly frequency increased the is- (1) suing multiple opinions adopt it is time to take-nothing judg- affirm: the We n procedure in and the utilized the Texas Su- ment rendered favor of (2) Court; in the preme in to include second Realty entirety; its Commercial order, if need- explanation the and summary judgment granted opinion, of the portion ed, withdrawing prior opinion part the as claims Gaines and on opinion. e.g., the new See Crown Guaranty for breach of con- of Life Casteel, tract, negligence, conspiracy, and conver- Ins. Co. (Tex.2000). (3) can be in the
sion; take-nothing judgment This information and the footnote, it paragraph or in a but in favor of on Gaines’s and first rendered readily to be evident to the reader Guaranty’s counterclaims. We needs (1) in only opinion issued the that this is not the portion of reverse: simple procedure the case. This is a on claims judgment granted the anyone reading the convenience of and Southwest against Gaines easily and deter- opinions to understand exemplary damages; and and for fraud final the Court’s opinion and mine which is denying the court’s order Gaines’s (Tex.1986). But when also allows a re- opinion. process This itself, requires it presents situation searcher, dispo- in this interested the ultimate analysis, аnalysis that is lack- sition, some careful to see the easily to track backwards majority opinion. in ing opinion. of the final Because development that infor- majority provide refuses to case, in to the docu- In this addition mation, and concurring I do so in this camera, Kelly in being provided ments dissenting opinion. the trial privilege log to assist provided privileges court in the evaluation History Appeal Prior of This Kelly. regard Kelly’s asserted With opinion affirming The the trial Court’s I that it also fails to privilege log, note judgment part reversing court’s in and and identify recipients the other of items remanding part, this persons other received and 4.1 Because Gray’s judgment, Court’s and Chief Justice documents, there is no affidavit or concurring dissenting opinion, all dat- are, I persons other evidence of who these 13, 2005, July by sepa- ed are withdrawn agree has failed establish rate, unpublished September order dated privileges asserted to these three items. Appel- 2005. That order also denies Compa- E.I. DuPont de Nemours and See grants rehearing, (Tex.2004). lant’s motion for I ny, 136 S.W.3d 225-226 motion for Appellee’s rehearing part. log also note that the information opinion, Gray’s The Court’s Chief Justice entirely accurate. items and 3 is concurring dissenting opinion and the clearly privilege lоg Item 1 in the judgment of this date are substituted for it product. sought protect work originally those issued. protected. on this It should be basis. regarding
With these comments the his- issue, Thus, I to the on this must dissent tory appeal, I proceed this now to the majority ordering privileged these docu- my dissenting opinion. substance party opposing ments turned over judgment. At the part
as of this Court’s very given THE OPINION least the trial court should be DISSENTING *26 on remand to review the opportunity all that necessary prove Sometimes privileges guidance pro- with the asserted privilege a is the document itself. “When Otherwise, by opinions. this vided Court’s ... protection claim for is based on judgment. I concur in the Court’s specific privilege, attorney-client such as attorney product, or work the documents may only evi-
themselves constitute the substantiating privi-
dence the claim of
lege.” Curry, Inc. Enterprises, Weisel pear received the documents whose
1. It is difficult to discern or correlate
have
produced
privi-
documents
in camera to the
identities are not established. There are
lege log.
log
many
The
documents of different and di-
has four items listed. The
discrete
log
produced
privilege
should
documents
in camera are divided
verse character. The
privilege
tabs. The
three items
have listed each document and the
five numbered
first
proce-
correspond
it. For a discussion of the
behind tab 1
to the first three
asserted to
that,
log. Everything
privilege at the trial court
on the
after
in-
dure to establish a
items
ruling
cluding
necessary for review of a
what is behind each of the four re-
and what is
tabs,
maining
may
part
privilege,
see the excellent discussion
have been
file as
on a
Monsanto,
log.
simply
I
Vance in In Re
described in item 4 in the
Justice
1999, orig. proceeding).
many people
ap-
(Tex.App.-Waco
cannot tell. There are
who
notes
Gaines and
pending.
ment motion was
Gaines and
Guaranty
had
coun-
filedvfheir
had tried to secure an
tersuit and
action
third-party
only seven
agreement
parties
discovery
of the
months before the
setting,
deadlines and a trial
but none was
Thus,
hearing.
arguably
first factor
discovery
reached. Because the
deadlines
Kelly.
favors
were unclear when Gaines and Southwest
summary judgment Guaranty
summary
At issue in
filed their
motion,
they
motion
im
argued
were
five claims
it could be
(breach
Thus,
plicitly sought
Gaines and Southwest
stricter deadlines.
917-18;
Trostle,
498-99;
at
Kelly. See Restaurant
these factors favor
Int'l,
Constr.,
at 341-42.
Dickson