*1 irreconcilably conflict representations finding anee address or failures to This does agreement disclose information about an Title jury’s finding Chicago with the or services rendered. to the Mc- misrepresentation made a purchase Donalds in connection with their agreement between the Mc- Mc- property. of the We resolve the Chicago Donalds and Title was the title them. against Donalds’ third issue policy. Chicago insurance The services under Title was to render the McDonalds judgment. We affirm the trial court’s policy the were title defense and indemnifi
cation. See Martinka v. Commonwealth Co.,
Land Title Ins.
(Tex.App.-Houston writ [1st Dist.]
denied). instructions, jury Given these reasonably
could conclude the sole question
transaction relevant to this was the McDonalds’ of the title insur purchase REYNOLDS, III, Appellant, Ernest un policy, purchase ance not their of the no derlying property. There is evidence any Title made Chicago the record Michael MURPHY John f/k/a a/k/a misrepresentations pol about its insurance Phillips Michael Invest- icy provided or the services to be thereun Resources, L.L.C., Appellees. ment der. To the extent the erroneous title description part insuring formed a No. 2-03-294-CV. agreement, policy specifically states Texas, Appeals Court agreement that the is not intended to be Fort Worth. being opinion report an or on the title covered, merely a of indem but is contract Feb. 2006. nity entitling payment the insured to resulting action from a other loss
covered risk.2 The McDonalds never policy, and when a
made claim under lender, Chicago
claim made obligations pol
Title resolved its under the from the
icy by purchasing an easement Court.
property Wimbledon
Because there is evidence Chica- unfair, false,
go Title committed mis-
leading, deceptive practice act or
connection with its sale of title insurance McDonalds, jury could find
to the and manner the
based on Chicago Title did
issue was submitted DTPA. any provision
not violate finding negligent mis- language appeal jury’s Chicago argues Title that this claims policy representation, defeats both the McDonalds' address the is- so we do not negligent mis- violations of the DTPA and sue. however, Title, representation. Chicago did *4 Beck, L.L.P.,
Fielding, Parker & David Schattman, Fielding, Taylor, Nathan B. Olson, Adkins, Elam, L.L.P., Tim Sralla & Sralla, Worth, appellant. G. Fort L.L.P., Boone, Haynes David H. McComas, Dallas, Harper and Debra J. appellees. LIVINGSTON,
PANEL B: GARDNER, MCCOY, JJ. *5 OPINION ON REHEARING LIVINGSTON, TERRIE Justice. reconsidering prior opinion After our Reynolds Ill’s motion for appellant Ernest rehearing request rehearing and for en banc, deny request we the motion and for banc, rehearing en but we withdraw our July opinion judgment and and following place in their in substitute the clarify parts order to and correct of our original opinion.1
Introduction in impression This case of first potential liability volves the of an author publisher and of an investment-related agreed appellant grant appellant’s 1. We of the documents that asked the also motion length rehearing the extend of the motion for trial court clerk to file are in clerk’s the record, rehearing and the letters that are in the record— and en banc. In addition to these motions, setting hearing appellant's appellant supple a filed a motion to which discuss record, attempting supplement compel appellees' motion for ment the motion to showing protective change letters that he order—do not our ultimate the clerk’s record with opinion: request hearing compel that the admis did a on his motion to conclusion in this place. protective in first appellees’ motion for order. sions were never deemed and on Thus, pp. in determin See discussion 259-60. We have considerable discretion infra See, supplement ing e.g., deny appellant’s motion to whether to file this record. deny appellant's re Collagen Corp., clerk’s record. We also Worthy v. TexR.App. denied, (Tex.), quest argument. P. for oral 365-66 cert. 524 U.S. 39.8, (1998). L.Ed.2d 740 Not all 49.3. S.Ct. (7) action,3 various alleges ment of his causes subscriber who newsletter mak- considering appel- he incurred losses a result of by as trial court erred in investments accordance with recom- ing objections Reynolds’s lees’ Appellant in the mendations newsletter. the date filed for the first time on III Reynolds, from a sum- appeals (8) Ernest hearing, motion for mary judgment granted appel- in favor of evidentiary by trial court erred its John lees Michael a/k/a f/k/a (9) by erred rulings, and trial court Murphy and Phillips Michael Investment Reynolds’s to reform the denying motion Resources, challenges L.L.C. part in affirm and reverse order. We issues, summary judgment nine in part. remand (1) complaining specifically the Unit- in Lowe Supreme holding ed States Court Background Commission,2 Exchange Securities 1999, Reynolds an ad received publishers restraint protecting prior from Investing, a Technology vertisement by does speech agencies, of free federal au by Phillips and published newsletter private not extend to abolish all causes by Murphy. Reynolds ordered thored consequences action for of misuse receiving by phone began subscription (2) speech, Amendment limited First well fax supplemental the newsletter as protection of Lowe not be extended should pleadings, es and email bulletins. In his publishers nonpublisher to shield au- alleges on the that he relied speech liability thors of harmful from information newsletter for “research and (3) actions, their no-evidence motion and that making investment decisions” (4) premature, given follow attempted the advice the trial court abused its discretion alleges also the newsletter.4 denying for continuance motion *6 con 2001 he became pleadings discovery because the deadline had receiving about the advice he was cerned passed appellees adequate- refused was not Specifically, newsletter. he (5) the ly respond discovery, Reynolds pre- the returns on his investments seeing sufficient of his sented evidence on each Eventually, he the newsletter described. action to no- appellees’ causes of defeat Mur despite stocks at sold those a loss summary judgment, evidence motion for (6) hold the stock Reynolds phy’s recommendation to genuine questions established as to challenged long-term of material fact each ele- investment.5 181, 2557, specify any particular 2. 472 U.S. 105 86 L.Ed.2d does not S.Ct. 4. (1985). pur- he stocks he 130 advice that followed or the in reliance the advice in chased or sold newsletter, allege of other than to that instead Appellees 3. contend waived his fell, selling price stock he Microsoft when its challenge summary judgment because Murphy’s advice. it in accordance with "held” ground appellees failed to address each eventually Reynolds does that he But admit Reynolds has asserted in their motion. But against Mur- his Microsoft stock at a loss sold general presented appeal with re issue on phy's advice. propriety summary judg spect to the ment; thus, challenge he has not waived his Although appears admission propriety summary judgment this to be an to the of 5. 38.9; Reynolds's was his cause of losses appellees' favor. See P. Ma that the Tex.R.App. 119, Bros., in the news- looly Napier, v. failure to follow the advice Inc. 461 S.W.2d own Int’l, letter, (Tex.1970); dispositive Reynolds’s all of see Inc. v. it is not of 121 also Plexchem Dist., 930, appellees allege this did not Appraisal 930 claims because Harris 922 S.W.2d (Tex. 1996). summary judgment ground admission as a 258 appellees sued through Although breach no fault of his own.7
contract, when both negligence, negligent misrepre- no-evidence traditional sentation, summary judgment motions are filed we misrepresentation, fraud and usually address the no-evidence motion and violations Deceptive of the Texas first, (DTPA). Ridgway, see Ford Motor Co. v. Trade Appellees Practices Act6 598, (Tex.2004), S.W.3d here we will filed no-evidence and traditional motions propriety granting review the the tradi- summary judgment. The trial court summary judgment tional first because it granted summary judgment for appellees dispositive majority Reynolds’s stating grounds upon without which Therefore, claims.8 we need address judgment was based.
Reynolds’s fifth, through third and the ninth, Procedural Reynolds’s Issues part pertaining issues Tex.R.App. discovery matters. P. Reynolds appeals proce several 47.1; Bank, Surety Tex. Mut. Ins. Co. v. matters, dural some of which we must N.A., 4 (Tex.App.- 156 S.W.3d 131 n. turning address before to the substance of pet.). Fort Worth summary judgment Appellees issues. filed both a no-evidence and a traditional Reynolds’s ninth remainder summary motion for judgment. Several of issue trial court relates whether Reynolds’s complaints relate to the discov should have granted motion to ery process; Reynolds generally contends specify reform the him during stonewalled dis grounds upon summary it granted which covery enough and that he did not have judgment. authority, nor We find no does complete discovery time to evi Reynolds any, requiring obtain cite a trial court motion, dence to defeat specify grounds upon the no-evidence which it However, Reynolds's light Reynolds's on all of claims. See Johnson motion for Pritchard, P.C., (1) Brewer & 73 S.W.3d rehearing, following: a tradi- note the Martinez, (Tex.2002); Spectrum, Sci. Inc. v. subject tional is not to the (Tex.1997). same restrictions as a no-evidence granted judgment, may until an not be 17.46(b)(5), § 6. See Tex. Bus. & Com.Code Ann. discovery passed, adequate time for has see (7), (8), (12), (24) (Vernon Supp.2004-05). 166a(a) ("A party may, ... Tex.R. Civ. P. party appeared Although time after the adverse has gamesmanship we do not condone *7 answered, discovery process, summary judg- in the we do not address or move ... for ....”), 166a(i); those issues in this case because other issues ment Clemons v. Citizens dispositive. are Ctr., 463, (Tex.App.-Cor- Med. 54 S.W.3d 466 2001, pus pet.). Christi no Nelson v. But cf. Although Reynolds's complaints two of 442, Mortgage Corp., PNC 139 S.W.3d 446 (1) appeal improperly are that the trial court 2004, (Tex.App.-Dallas pet.) (holding, granted summary judgment before the dead- extreme, case, fact-specific traditional completing discovery line for in the case and summary judgment improper when dis- (2) by the trial court abused its discretion covery outstanding motions were when trial denying his first for motion continuance ignored by pro court all motions filed se in- grounds, based on the same both of these mate, yet promptly responded and to all set complaints pertain propriety to the of the no- defendants); (2) by motions filed civil summary judgment only. evidence motion for supreme recently that a court has reiterated disposition appeal Because our relates mandatory simply be- first continuance is not only Reynolds’s complaints to about the tradi- proper motion, form. cause it is uncontroverted and summary judgment tional we need Carriers, Bates, v. 147 See Schneider Nat’l Inc. two not address his contentions about these 264, (Tex.2004). complaints. S.W.3d n. 142 292
259 21, 91; hearing. P. McConnell summary judgment. Provident grants Tex.R. Civ. Cf. Knott, ISD, n. 7 v. 128 343 & Accident Ins. Co. v. 858 S.W.2d Southside Life (Tex.2003) (citing long (Tex.1993).9 objections S.W.3d to But a movant’s order standing grant rule that trial court evidence competency of a nonmovant’s ing summary judgment specifying without hearing are day that are filed any must affirmed if grounds be theories may untimely be considered preserved to presented trial court and Shelton, 144 upon by trial court. ruled meritorious). Thus, appellate review Thus, Reyn- we S.W.3d at 119. overrule Reynolds’s overrule we the remainder olds’s seventh issue. evidentiary ninth issue and turn to his discovery issues. issue, con eighth In his by grant court tends that the trial erred
Reynolds’s eighth seventh and is summary objections to ing appellees’ complain trial rul sues about the court’s by denying his ob judgment evidence parties’ summary ings on the As jections appellees’ evidence. to some Reyn court denied evidence. trial matter, if initial need an we not determine objections appellees’ olds’s evidence and by the trial abused its objections Reynolds’s court discretion granted appellees’ objections rulings admitting denying Reynolds’s appellees’ A evidence. trial court’s excluding because, evidence are un summary judgment reviewable der an abuse of Nat’l below, discretion standard. explain disregarding even Allen, Liab. & Fire evidence, Ins. Co. S.W.3d Reynolds did not raise a fact (Tex.2000). appellate An court summary judgment on appellees’ issue uphold evidentiary Tex.R.App. must trial court’s As to grounds. P. 47.1. if there is ruling any legitimate basis in the objections Reynolds’s evi appellees’ for the Fi ruling. Owens-Corning record dence, court in its granted which the trial Malone, berglas Corp. v. Reyn granting judgment, order (Tex.1998). following presented olds items as sum affidavit, a mary judgment evidence: his issue, In his seventh set of requests admissions that the claims trial court erred consid deemed, excerpt claimed an from were ering appellees’ objections to his respon publication Overpriced Stock Ser entitled sive evidence because vice, purporting of an copy article objections untimely their Ap- filed. timely Appellees from be TheStreet.com. pellees objections did not file their objected purported deemed admis day evidence until the sions, were not deemed claiming summary judgment hearing. Generally, timely because filed a motion response the nonmovant must file its respect re protective order with to the (including objections to reply the mov- thirty-day period set evidence) quests within the days ant’s “not later than seven *8 192.4, P. forth rules. See TexR. Crv. day prior hearing.” to the [the] Tex.R. 192.6, 198.2; Group, 166a(e). Edge Capital In re exceptions P. A Crv. movant’s Inc., 764, (Tex.App. 161 766-67 response reply or S.W.3d the nonmovant’s should 2005, (noting days orig. proceeding) at Beaumont be filed least three before the McConnell, ambiguous. exceptions 9. A movant's to a nonmovant’s re- 343; complain sponse reply Sargent, or the issues 144 119 Shelton v. S.W.3d response denied). de- identified the nonmovant's pets, (Tex.App.-Fort Worth feating summary judgment are unclear or 260 trial court has discretion to contention, narrow addition to general their appel-
scope discovery protect party’s objected lees legiti- to some of the admissions interests, specific mate grounds. but also After acknowledging thirty-day pe- expired, riod rule 192.6’s admonishment that a filed what motion protective supplemental response, called answering order should not be filed some of the admissions and objection objecting when an or assertion of privilege others. The trial court never ruled on is appropriate). Reynolds claims that the protective motion for order. motion protective prevent order did not the requests from being deemed admitted Appellees’ summary judgment evidence because the trial court never ruled on the shows that addition to the motion for Thus, motion. ap- contends that order, protective which May was filed on pellees’ supplemental response was their 20, 2003, appellees also attached to the one, first that it was untimely, and that the motion requests answers to the that as admissions were deemed admitted. We serted appellees’ general objections—that disagree. requests volume of unduly harassing burdensome and also con —and “party A specifically must state legal specific objections certain, tained more objection factual basis pro- for [its] [to all, but not requests. pounded discovery] and the extent contends that general objections party which the refusing comply is with not sufficient to constitute a complete re 193.2(a). request.” Tex.R. Civ. P. An sponse. See Tex.R. Civ. P. 193.1. But objection that is not made within the time party objected when a has to a large set of required by the discovery by rules or court requests for admissions on ground order, or by is obscured numerous requests the volume of the unduly is bur objections, unfounded is waived unless the harassing, densome and requiring that court excuses the good waiver for cause party to file a specific objection more 193.2(e). 193.1, shown. Tex.R. Crv. P. A request each to prevent the admissions party from discovery whom sought may is from being deemed would pur defeat the also, within the time for a response, move pose filing general objection, such a protective for a order. Tex.R. P. Civ. order, protective both, motion for 192.6(a). party A should not move for expressly authorized the rules. See protection objection when an appropri- 192.6(b), 193.2(b); Tex.R. Civ. P. Grass cf ate, but a protective motion for order does Golden, (Tex.App. S.W.3d any objections. not waive Id. A trial -Tyler orig. proceeding) (noting that may grant court a protective pro- order to 192.6(a), under party seeking protec rule party burden, tect a from “undue unneces- tion from place discovery time and must sary expense, harassment.” Tex.R. [or] place state a reasonable time and for dis 192.6(b). Civ. P. covery comply). with which it will More Appellees claimed in over, their motion for Reynolds cites no authority protective requests order that the 996 See, directing brief us to hold otherwise. Shelton, third set—were e.g., at 119 (waiving S.W.3d admissions — unduly burdensome and harassing.10 point on appeal for failure to cite authori requests. served the same set of 498 re- 109 first He then served a second quests appellee each containing requests appellee, for a total of 996 set on each requests. already He had requests served a first set on for a total of 414 in the second set. *9 all, 1,519 Murphy containing requests requests and a first set served Phillips containing requests, appellee. a total of admissions on (cid:127) to and representations Appellees made any authority, cite nor ty). He does not respect with holding filing that the with any, have we found contracted newsletter, ap- protective motion for order within and it appears of a to the answering requests many for ad period time pellees thing the same sold prevent States, is not sufficient to those Texas, missions others in United from if being admissions deemed admitted States; and the United outside eventually rule the court does not on the (cid:127) Reynolds appel- and believed trusted id. that appellees’ motion. See holdWe Technolo- lees and came believe the order, protective along motion for with gy Investing newsletter was rehable objections attached to the general their regularly. regu- also and read it He ground that requests for admissions on the Murphy’s larly the hotline for called and harass unduly were burdensome many and read advice and received ad ing, adequate prevented and He a lot of got bulletins. flash being from deemed rule missions under appellees and advice information from Thus, contrary 198. Civ. P. 198. Tex.R. promoted Murphy; and who advertised assertions, there was no need (cid:127) Murphy Appellees represented that “undeeming” a trial court order knowledge, experience, had special they were admissions because never skill, and had de- special contacts place. in the first deemed admitted We new, and test- veloped a but successful did not conclude the trial court abuse selecting ed method for the best by concluding its discretion the re investments, most profitable quests admitted and deemed “safely could lead ... subscribers granting appellees’ objections big path profits down the to build ... requests “deemed” for admissions attached time”; over Reynolds’s response. (cid:127) represented person Murphy was complains also managed who successful investment objections trial court’s granting appellees’ mu- managed individuals and funds for objected Appellees to his affidavit. funds; tual nearly every sentence the affidavit. But (cid:127) Appellees tried to tell the court that objection. we need not address each Con book articles about told sidering light the affidavit in the most revealing some more sordid and must, Reynolds, favorable to as we Murphy, appellees true but facts about ignoring conclusory all statements in the provide book previously did not affidavit, proper summary which are not Reynolds. Reyn- articles to those evidence,11 glean follow until nothing olds these facts knew ing from his affidavit: 2002; April 30, (cid:127) repeatedly Appellees routinely (cid:127) Reynolds initially began for his paying mail and inter- used United States and re- subscription November 1999 solicit, contact, telephone state lines subscription until around newed his to Reynolds; and deliver information 2001; November (cid:127) Reynolds paid hun- appellees many (cid:127) “might analyst another dollars, Murphy said dreds of col- once; for ‘hell’ because of payment [that more than be headed lected pet.). Seaway Hanley, Worth Pipeline Co. Prods. (Tex.App.-Fort 653-54 *10 262
analyst’s] comings short as an ana- summary traditional motion for judg- lyst,” ment. frequent made ref- erences to his “wall of shame” for Standard of Review analysts whom he claimed he had case, summary a the issue outperformed; appeal is whether the movant met the (cid:127) Appellees purported to sell advice and summary judgment by establishing burden expertise Reynolds, genuine issue of material fact ex- paid appellees for that advice and ex- ists and that the movant is entitled to pertise; judgment as a matter of law. Tex.R. Crv.
(cid:127) Part subscription pays fee 166a(c); Grant, P. Sw. Elec. Power Co. v. newsletter. also re- (Tex.2002); 73 S.W.3d 215 City of updates ceived fax to the newsletter Auth., Houston v. Clear Creek Basin hotlines; and access to telephone (Tex.1979). S.W.2d The burden (cid:127) Appellees promoted Murphy aggres- proof movant, is on the all doubts sively guru as a stock referring to him about the genuine existence of a issue of legendary skill alleged for his in material fact are against resolved the mov- finding investments; and selecting Co., ant. Sw. Elec. Power 73 S.W.3d at (cid:127) Murphy eventually made statements publication the hotline and in the reviewing summary When judgment, admitting directly indirectly that his we take as true all evidence favorable to strategy
earlier and recommendations nonmovant, indulge every and we rea- fundamentally wrong; any sonable inference and resolve doubts (cid:127) in the Operat- nonmovant’s favor. Valence would have subscribed to Dorsett, ing Co. v. 164 S.W.3d
the newsletter had he been informed (Tex.2005). Evidence that favors the mov- Murphy’s history, past criminal position ant’s will not be considered unless use, drug and poor performance aas it is uncontroverted. Great Am. Reserve fund manager.12 Ins. Co. v. San Antonio Plumbing Supply below, explained As none of this evidence Co., (Tex.1965). creates fact issue on appellees’ will be affirmed grounds Thus, judgment. if only the record establishes that the mov- Reynolds’s eighth overrule issue to the conclusively ant has proved all essential
extent that the affidavit contains eoncluso-
elements of the movant’s cause of action or
ry statements. But we need not deter-
defense as matter of law. Clear Creek
mine whether the remainder of the issue
Basin,
263 Montiel, securities and 308, commentary about the Corp. v. Techs. markets, (Tex.1997). indi- reviews market bullion 310 strategies, and investment cators conclusively negates at A defendant who buying, specific recommendations a one essential element of cause least holding stocks and bullion. selling, or to on action is entitled “telephone a The advertised newsletter claim. Cedars Treatment Ctr. IHS could which subscribers hotline” over Tex., Desoto, Mason, v. 143 Inc. S.W.3d The get call current information. to (Tex.2004). the defendant 798 Once to the of subscribers newsletter number produces sufficient evidence to establish 19,000. 3,000 It was ranged from to summary the right judgment, to bur the semimonthly publication, a advertised as plaintiff come forward den shifts the eight published but only issues competent controverting evidence with ... 15 months.... raising genuine a issue material fact challenged by regard to the element with Inc. v. Centeq Realty, the defendant. Sie Advisory only 278 The Stock had Lowe (Tex.1995). 195, 197
gler, 899 S.W.2d
published only
paid
and had
subscribers
its
May
four
1981 and
issues between
First Amendment Protection-
It
ana-
last
in March 1982.
also
issue
Negligence
Negligent
lyzed
on
securities
and commented
Misrepresentation
markets,
specialized
but
bullion
issues, Reynolds
In his first and second
stocks. Subscribers were
lower-priced
contends that a First Amendment case
periodic
could receive
advised
Lowe,
by appellees,
on
does not
relied
updated recommendations
letters with
authority
provide
and also could
specific
securities
against appellees.
on all of his claims
telephone
hotline.
make use
at
He
U.S. at
105 S.Ct.
2557.13
con-
n. 7.
at
n.
at
&
Id.
185 &
105 S.Ct.
does not
the spe-
tends
Lowe
address
newslet-
Supreme
Court held
it
cific issues in this case and that
cannot
general
publication
ter was a bona fide
publisher
a
and author
be used
shield
Thus, was not an “invest-
circulation.
it
Thus,
wrongful
begin
speech.
with
subject
regulation
ment
federal
adviser”
analysis
an
of the Lowe case.
IAA,
could
government
under
and the
The issue in Lowe was whether
Se-
on
prior
publica-
restraint
its
impose
(SEC)
Exchange
curities and
Commission
211,105
tion.
at
at 2573.
Id.
S.Ct.
injunction
permanent
could obtain a
under
(IAA)
agree
Act
that Lowe is not di
the federal Investment Advisers
We
involve
publication
rectly
of securities
case does not
prohibiting
point.
on
This
containing “nonpersonalized
entity
attempt by
governmental
newsletters
an
commentary.”
Id.
IAA.
It con
speech
investment advice
restrain
under the
at
The Court de-
litigant’s attempt
impose
2559.
private
S.Ct.
cerns a
at issue
publications
scribed
and author.
liability
publisher
on a
as follows:
addition,
case
does
the First Amendment
deceptive speech,
fraudulent or
protect
Investment
typical
A
issue of
Lowe
Assocs.,
see,
Telemarketing
v.
general
e.g., Illinois
and Financial Letter contained
general
summary judg-
appeal.
raised this as a
But
contends that
ground
in their
ground
improp-
as to all
claims
based
this
would be
ment
summary judgment.
motion for
er because it was raised for the first time on
600, 612, 123
1829, 1836,
538 U.S.
S.Ct.
155 he relied on investment advice contained in
(2003),
it give
L.Ed.2d 793
nor does
one
newsletter
turned out
be based
right
to breach a
contract
make
assumptions,
inaccurate
the au-
City
false warranties.
R.A.V.
St.
thor later admitted
the newsletter.
Id.
*12
Paul,
377,
2538,
420, 112
505 U.S.
S.Ct.
at
In determining
Ginsburg’s
734.
that
(1992)
J.,
2563,
(Stevens,
ment
Appellees’ summary judgment evidence
nondefamatory,
liability
neg-
precludes
David
Murphy and
affidavits from
includes
news.
Id.
ligently untruthful
Phillips.
Bishop,
Vice President
Senior
analysis
with
agree
We
affidavit,
Bishop
In his
avers
respect
cases
to the
holdings of these
with
*13
in
con-
January 1999 and
Beginning
6.
conclude
First Amendment
issue.19 We
through
then
month since
tinuing each
summary
if
judgment
the
time,
In-
[Technology
the
publish-
present
the
appellees
shows that
authored
See,
services,
stated,
e.g., Dun
speech.
tion as noncommercial
17. The court
“News
whether
Builders, Inc.,
radio,
472
v. Greenmoss
public,
as are television or
& Bradstreet
free
the
2939, 2945,
media,
749, 759,
86
specialized
105 S.Ct.
expensive
such as
U.S.
or more
database,
(1985);
Bar
Ohio State
computerized
in-
L.Ed.2d 593
Ohralik v.
defendant's
are
1918,
1912,
Ass’n,
456, 98 S.Ct.
free
all
of
436 U.S.
struments for the
flow of
forms
information,
(1978).
444
He claims that
unques-
56 L.Ed.2d
and should be treated
the Lowe defini
tionably
guar-
the newsletter meets
within the First Amendment’s
whether
general
is
publication
circulation
press,”
of
tion of a
of
"[T]he
antee
freedom
holding
degree
in Lowe is
of
of its distri-
because the
cost
the service
the
irrelevant
importance
the
solely
related
the
of
the
construction of
bution are not
based
on
Court’s
IAA,
protection
grounds.
at
the
needed for the statement
rather than First Amendment
Thus,
at 339-40.
the focus
the
in
did
although
Supreme
issue.” Id.
the
Court Lowe
But
inquiry
First Amendment
should be on the
"specifically address the constitutional
not
any given
specificity
the advice
subscrib-
the
question," it did conclude as follows: “To
opposed
availability
the free
er as
cost or
factual
the chart service contains
extent that
publication.
by the
the
The factors cited
con-
past
mar
transactions and
information
curring
greater
opinion
publisher's
trends,
reflect the
the
contain com
ket
newsletters
in,
maintaining
conditions,
the
interest in
a value
general
there
mentary
market
on
of,
proprietary nature
the information con-
protected
can
doubt about the
character
he no
providing
Lowe,
tained in
newsletter
than
rather
...."
472 U.S.
the communications
particular
specifically
omitted)
tailored advice to a
sub-
(footnote
S.Ct. at 2573
at
105
Concurring
Reh’g at
Op.
scriber.
275-
added).
(emphasis
is
This statement
followed
"Moreover,
76.
states,
footnote,
be
by a
which
expres
squarely held that the
cause we have
product
plaintiff
opinion
and de-
about a commercial
18. The court held
sion of
special
loudspeaker
protected
type
not have the
rela-
is
fendant did
such as a
Amendment,
tionship contemplated by
why
552
section
it
difficult to see
First
is
(Second)
opinion
We
expression
of Torts.
do
about a marketable
Restatement
of an
applicability
in
at
protected.”
address the
of section 552
Id.
security
not also be
should
(citations
case
did not move for
this
because
n. 58
Phillips turn, published it and much from in- different the investment copies sent to Newsletter subscribers formation a newspaper magazine, every month. Times, like the New York Fort 7. Murphy prepared supplements Telegram also Worth Star U.S. News.... monthly to the The New York Times Fort Newsletter distribu- and the Star-Telegram by Phillips regular tion Flash Worth news- called Bulletins papers. They freely can bought both be updates. hotline many at places, including newsstands 8. The Newsletter is available corners, street stores and at air- even public and can be for an obtained annual The ports. Murphy Invest- Technology subscription price. ing purchased Newsletter cannot be types of these of locations.... The 10. Subscriptions to the newsletter only get TI way access to the (the report advertised in a free buy Newsletter is to a subscription.... Report”).... “Free Free Report The newsletter informs the subscribers separate advertised advertise- *14 supposed that it is not to be shown (the “Advertisement”).... ment In anyone who is not a It can subscriber. ap- the sent to Advertisement was line; it again also be accessed on but 1,000,000 proximately people. The Free supposed anyone not to be shown to who Report subscription advertises a to the is not a subscriber. order to access it Newsletter, receiving the includes one must have an code. line access special Newsletter and reports.... is changed frequently. The code The also tele- subscription allows a series of 16. Reynolds’^] subscriptions to the phone updates. access hotline access To Newsletter, subscriptions like all other ... phone updates, Hotlines the one Newsletter, to the receiving included the number, phone must call a then first Newsletter and supplemental informa- special Again, use a access code. the tion via Flash fax or by Bulletins e-mail changed code is often. updates and access to Internet hotline affidavit, Reynolds’s pur- According the e-mail, by telephone fax or a recorded non- pose prevent of the access code is to message. from accessing subscribers the hotline. Reynolds avers that the fax updates also Reynolds 19. received had ac- and/or sup- are to subscribers and are not limited Newsletters, cess the same Flash Bul- posed anyone be shared with else. letins and hotline updates that were sent contrast, that “[b]y further avers every made available subscriber of not newspapers the U.S. News do the Newsletter. Hotlines or Bulle- offer subscribers Flash be purchased
tins.
information can
Phillips
knowledge Reyn-
has no
of
freely
shared
and without
restriction.”
individual, personalized
oldses]
financial
affidavit,
According
types
his
these
conditions or any
personal
other
matter
publications
public
are
at
librar-
available
Reynolds.
ies,
Technology Investing is not.
but
summary
that
the
avers
his
the
hold
affidavit
We
newsletter, as
with
as a matter of law
supplemented
faxed
evidence established
summary judgment would not
Because
Technology Investing,
like the news-
“is
Ginsburg,
in Lowe and
letters
issue
First Amendment
been
proper
have
infor-
general public
to the
and the
offered
Reynolds’s
breach
con-
grounds as to
in the
is of
provided
publication
mation
tract,
misrepresentation,
fraud and
is,
nature,
specifically
not
general
it is
claims,
examine
other
DTPA
must
any
tailored to
financial situation
[the]
by
asserted
judgment grounds
Ginsburg, 915
individual
subscriber.”
claims.
respect to those
appellees with
That
was
F.Supp. at 739.
the newsletter
subscribers,
only
supple-
was
available
Breach of Contract
access
“Flash Bulle-
mented
hotline
tins,”
widely published
is not as
they contend that
Appellees
not
many
newspapers
well-known
does
summary judgment as matter
entitled to
general
change
publica-
nature of
contract
law on
breach of
tion. The
in Lowe
num-
focus
was
claim because
evidence shows
particular publica-
ber of subscribers to a
only agreement
they complied with
generalized
tion
of content
but
nature
supply an
parties
invest
between
—to
Lowe,
publication.
472 U.S. at
presented
Appellees
evi
ment newsletter.
Here,
Appellees states at attached to their sum mary beginning, judgment motion a “WARNING! SUBSTAN- copy of the initial TIAL mailing Reynolds SHORT SELLING IS copy received and a FOR PRO- report free that he AND ordered as solicited FESSIONALS SOPHISTICATED in the A mailing. mailings review of INDIVIDUAL those INVESTORS ONLY. shows that promises much START SMALL! DIVERSIFY so-called AND are puffery.23 For example, the newslet SET FIRM STOP LOSS POINTS. states, ter past “And for the years, I’ve PLEASE USE DISCRETION IN DIS- made money for other people people like SHORT CUSSING SALE IDEAS WITH — you....” Murphy’s It also claims that THE PRESS OR NONSUBSCRIBERS.” notes, method is possible way safest explain exactly “[t]he It further “Let us future,” invest “can help why and that it negative we turned short-term on the you invest in you technology the future so that multi stocks and recommended sev- ply your up wealth over trading times eral shorts on the It Hotline.” five years.”24 next 10 None of “although these state later states that many like any specific term, ments makes promises, long money directly howev these stocks er. looks to ahead us to be the short side.”
Towards the end of the is a report free As evidence that different advice was entitled, rich, list “Besides making you given August in the 2000 issue of Technol- you?” what can I do Among ogy Investing, Reynolds points the items us to an you you’re listed are “I will tell what not attached exhibit as evidence to his motion being told what’s on in really going for continuance. But this evidence does stocks,” give you technology “I will in that the the Overpriced show advice are, specify examples 22. report does not he the free whether 24.Other from you right bought "If are on the of this initially stock side revolution Microsoft in reliance on your high investments will ride indeed over Technology only Investing, the advice in that months,” “You the next several don’t need to dropped he price did not sell when the in it guess how to make a fortune from the new Murphy’s reliance on advice. computer' ... I 'invisible revolution because it,” you exactly will tell to do "I how and "Puffery” expression opinion by is an a opportunity guide you like the would seller representation not made as a of fact. feast, through give you this and a wonderful Inc., Dowling Mktg., v. NADW S.W.2d future, way to savor ... the riches of the (Tex. 1982). today.” toward short- geared Service was any worse Stock Stock Service was better Technology Technology Investing given selling, than the advice and fact, Investing geared long-term the advice newsletter. toward newsletter was excerpt An appears present to be almost identical. Reynolds did not gains. Because from issue is as that follows: raising a issue as to whether fact evidence you any agreement with [a
I different appellees to sell EMC breached want moving him, all entitled company’s appellees stock] ... I am were we hold [including other stocks Micro- on our a it looks as soft] to “hold” until of contract claim. breach though nearing we’re the bottom slump. you I tell immediate- will Misrepresentation Fraud ly ... as soon as it’s on the Hotline contends he Reynolds further buying. Long-term in- safe to resume appellees a to whether raised fact issue as
vestors have to sell other don’t misrepresentation engaged in fraud and Technology Investing recommenda- prior Murphy has a failing disclose that higher by year’s will be end tions— past history drug criminal record and a early 2001 as business comes back use, quali misrepresenting Murphy’s thus strongly quarter. the fourth Shorter- Reynolds alleges experience. fications and gains also term investors with taxable anything shouldn’t sell else.... 30, 2002, April learned [he] on However, who shorter-term investors Murphy ... the facts that had first time losses, or gains can offset realized undergone altering experience a mind accounts, may who those have tax-free [1960s] after had LSD the he taken your gains lock in want to take some afterward, that, had robbed Murphy money off table that would avail- be times and he fell on hard a bank when I prices to reinvest at the lower see able was convicted Murphy our coming. The most vulnerable of a robbery in federal court. crime of bank probably are ... stocks MSFT [defined you going earlier as If Microsoft]. that he learned alleged also profits, those take some short-term more than one bank Murphy had robbed any up would be the stocks trade in the pistol had a com- he used during slump. days It was as result mission the offenses. discoveries, alleges, that of these Assuming author of the Murphy Phillips realized Service, Overpriced Stock which we find Reyn- The thrust perpetrating scam. of, evidence this does raise appellees repre- is that argument olds’s fact issue whether breached in an Murphy’s “talents and skills sented Reynolds. any promises publi- The two *17 they because “held light” untrue exactly have' same appear cations to the yet the same ‘expert,’ ‘guru,’ as an a out short-selling to Micro- respect advice with might information that lead time withheld regarding soft The information stock. judgment^] the fact question to his people in stock was contained holding Microsoft robbery his that he committed armed Technology Investing newsletter but Service; drugs, managed used days,25 Overpriced howev- salad not the Stock performing er, funds.” Overpriced poorly shows that the the evidence by Dictionary "days Dictionary 25. Defined Webster’s New International Webster’s Third (3d ed.2002). 2002 youthful inexperience of or indiscretion.” 270
Appellees attached their to tom Leasing, Inc. v. Bank Tex. & Trust Co., motion an affidavit from 138, (Tex.1974); Mur- 516 142 S.W.2d Mil phy, in which he ler, averred that in 1966 he duty at 345. The to S.W.3d dis was convicted of “federal crimes which party close arises when one knows that the commonly could be bank robbery” called ignorant other is party of the true facts and that pardoned “President Nixon [him] equal opportunity does not have an to of those crimes.” A copy pardon is Miller, 142 discover the truth. S.W.3d at also attached to the motion. He also 345. a duty Whether to exists disclose is averred that he has disclosed these mat- Vento, question law. v. Bradford ters in published “various articles” and in (Tex.2001).26 S.W.3d one of books. Murphy also avers that Here, they contend that had in the 1960s he morning glory “twice used duty to disclose Murphy’s details about seeds, an LSD analogue, before LSD was past history Reynolds criminal because made illegal.” Appellees do not contend they did not know was unaware past that Murphy’s history drug use and they those details and did because robbery bank was ever disclosed in the intend or other subscrib- newsletter, they but attach did to their rely er to absence of details in such pages motion from subscribing addition, newsletter. Murphy’s book in which he discloses the they argue that they because never made Murphy’s information. promot- book was any representation ed in Report the Free that solicited sub- Murphy’s personal history, there was no scriptions to the newsletter. partial, misleading impression that re- (1) A person commits fraud quired further disclosures. false, making misrepresentation material Both Murphy Bishop27 averred in (2) person that the either knows to be false their affidavits that not intend did recklessly knowledge asserts without any person “to subscribe or not subscribe (3) its truth with the intent that the mis [njewsletter knowing based on (4) representation be upon, acted and the not knowing about [Murphy’s] federal person misrepresentation to whom the is drug 1960[ crimes and use Mur- ]s.” (5) made upon acts reliance it and is phy avers that has publicly further injured as a result. Formosa Plastics past history disclosed his of armed bank Corp. Eng’rs v. USA Presidio & Contrac robbery drug use in publish- “various tors, Inc., (Tex.1998) 47-48 ed investing articles” and an book he Minshew, (op. reh’g); Miller Kennedy & wrote.28 Corp., 142 S.W.3d Pro f'l denied). (Tex.App.-Fort pet. affidavit, Worth Bishop’s According “[t]he A misrepresentation may approximate consist of initial circulation of concealment or of a January [newsletter nondisclosure material as of 1999 was to 1,400 fact duty when there is a disclose. and it Cus subscribers was circulated to Bradford, supreme expressly Bishop 26.In court the Senior is Vice President Phil- it adopted stated that has not section 551 of lips. Torts, (Second) the Restatement which rec- ognizes general duly to disclose facts in a Report 28. This Free book advertised in the setting party commercial when one does not subscribers, initially potential sent men- *18 misrepresentation, make an affirmative but its tioned above. partial misleading light disclosures are what it does facts not disclose. Id. at 756. and that 1,400 103,000 candidly it in his book advertised and subscribers between despite And present potential subscribers. from that time to the book to each month conclusory ap- that [April Murphy Bishop Reynolds’s and statements Both 2003].” knowledge made it difficult for they intentionally had no of pellees averred individual, to “Reynolds’ personalized finan- and subscribers potential subscribers information, bring or mat- failed to any personal cial conditions other discover the regarding of Reynolds.” specific ter evidence any forward and his investigate Murphy to attempts his affidavit, summary judgment In his Reynolds contrary, past history. To Reynolds averred as follows: that he was in his affidavit clearly states to [appellees] trying tell Now the on his this information able to discover this court that a book and articles told of Reynolds bring not hold that did own. We revealing sordid and some of more fact any raising a issue forward evidence in this Murphy; true facts about at- actually appellees as whether to tempt [appellees] are being decep- not about that he did know Mur- aware they disingenuous, tive and never not phy’s history or that he did have past me. I any of this available to made it. See Brad- opportunity an to discover nothing I happened of it until knew (holding that ford, at 754-56 48 S.W.3d my April, to learn some of it in late own to conceal- jury charged when as fraud 2002, my dismay. to shock and affir- partial ment disclosure—without or [appellees] ... The failed disclose theory adopting as valid cause matively significant relevant information and plaintiffs’ fraud claim failed action—that Murphy, about and even his true first forward bring did not because name,29 much making it more difficult Bradford evidence defendant knew victims, me, including for their intended of information that was not was unaware to learn awful truth anything about the an equal or he did not have disclosed really up of what these [appellees] were it).30 opportunity discover to, really doing.... Notwithstanding my ... own dili- alleged that further gence, I did not discover the awful truth appellees misrepresented Murphy’s talents on, going of what was learn of the past his by failing disclose skills false, misleading, deceptive and fraudu- manager, fund performance as a which practices [appellees] lent acts But poor. claims was April until on or about 2002. summary judgment as to did move for cannot allegation. grant this A trial court although Phil- evidence shows except grounds lips Murphy did not include the infor- in the newsletter, expressly presented motion. John mation in the as a disclaimer son, Inc., 204; otherwise, they Spectrum, 73 S.W.3d at Sci attempt did not conceal Thus, a traditional Murphy the information either. 912. discussed plains expert According Murphy was an stock ana- 29. evidence in the —that record, skills, Murphy’s lyst Murphy’s present full name under relate —all pardoned which he was convicted John points past. Reynolds or his character Murphy. Murphy Michael The book in which painted Murphy Phillips past history as discusses his lists his name having good picture false Murphy. Michael past or either in the moral character future. Moreover, alleged partial note representations com- *19 summary judgment would have growth been developed by flow method proper as to part Reynolds’s this fraud proven; was and misrepresentation Moreover, claim. (cid:127) Murphy is an investment adviser with appellees’ summary judgment no-evidence twenty years of experience who care- premised was also only on “the nondisclo fully and personally researched com- personal Thus, sure of Murphy’s history.” advice; panies gave before he no-evidence judgment would (cid:127) Murphy safely guide would investors proper have been either. Hinkle v. they so could profits invest make Adams, 189, (Tex.App.-Tex S.W.3d safely, special and he knowledge had pet.). arkana no expertise that enabled him to do Accordingly, we hold that the trial court this; by did not granting summary err judg- (cid:127) Murphy person was a who ran invest- ment appellees on Reynolds’s fraud ment managed private funds and even and misrepresentation respect claims with portfolios; investment past of Murphy’s drug nondisclosure (cid:127) constant, Murphy gave strong, equivo- use and criminal history. But we further cal assurances market would hold appellees that because did not move go higher rebound and even than ever for summary judgment as to ap- whether and investors should maintain and not pellees misrepresented Murphy’s “talents sell his holdings. recommended core by failing skills” past disclose his Reynolds also appellees claims that violat- performance as a fund manager, ed DTPA disclose failing Mur- not entitled either a traditional or no- phy’s episodes two drug use and his that par- past history. criminal ticular claim. claims, prove
To his DTPA Violation of DTPA that appellees engaged must show in a false, deceptive misleading, or act or prac Appellees moved for summary judgment 17.46(b) tice enumerated under section grounds five as to DTPA DTPA. Tex. Bus. & Com.Code Ann. claims. appellees’ We turn first to con- 17.46(b); § Boys Doe v. Clubs Greater tention appellees statements of Inc., Dallas, (Tex. 907 S.W.2d support a DTPA claim it because is dis- 1995); Ford, Chandler v. Gene Messer Tex.R.App. positive. P. 47.1. Inc., 501 (Tex.App.-East second petition, Reynolds amended denied). pet. land alleges claimed following made the alleged specifically misrepresen these misrepresentations: following violate tations subsections of (cid:127) Murphy special expertise had skill and 17.46(b): investing espe- the field of more (b) (d) Except provided in Subsection investments; cially technology section, “false, of this the term mislead- (cid:127) Murphy expert technology an ing, deceptive practices” in- acts investing great with experience and cludes, to, but is not limited the follow- expertise; ing acts: (cid:127) an Murphy created meth- investment odology highly prin- based on reliable (5)
ciples and those invested in representing who or services goods with his philosophy sponsorship, accordance would have approval, characteris- tics, benefits, great ingredients, uses, realize returns on investments. or quan- *20 fact that Mur- a also references the they have tities which do not or analysis in stock approval, has been involved sponsorship, phy a sta- person has late since the 1960s. tus, affiliation, he form or fashion or some connection not; does most of previously have discussed We raising as to Reynolds points the evidence (7) or representing goods services claims, specifically his a fact issue on standard, or quality, particular are of a Ser- Overpriced in the Stock given advice of a grade, goods particular are or past Murphy’s and about Microsoft vice another; model, if style or his attached to history. Reynolds also (8) services, or disparaging goods, he summary judgment other evidence by of another false mislead- business in fact a failure Murphy claims shows facts; ing representation of stocks, even analyzing picking tech This he is a success. though claims (12) an agreement representing an copy of a article evidence consists remedies, or rights, involves confers or dat- from TheStreet.com purporting to be not have or obligations which it does arti- 2002.31 Part of this February ed law; involve, by prohibited or which are “The Chutz- cle is entitled Definition
pah”: (24) con- failing to disclose information Mur- There’s a fellow named Michael cerning which was goods services who, truly a dismal record phy despite time if known at the of the transaction manager, spamming keeps aas fund such failure disclose such information picks. his latest investors about was intended induce consumer emails, gram- with Murphy’s replete into a the con- transaction into which errors, urge recipi- spelling matical and sumer not have entered had would trial his up for a free sign ents information been disclosed. I’ll newsletter. Technology Investing 17.46(b)(5), § Bus. & Com.Code Tex. Ann. site, linking Murphy’s refrain from (24). (7), (8), (12), touting you’ll biography find where Reynolds’s claims under section technology premier him as “America’s (12) (7), 17.46(b)(5), relate his claims an analyst” and former head of stock Murphy’s misrepresented company. unnamed He’s software Ap- as expertise analyst. skill a stock Every Investor’s Guide author summary as ev pellees judgment attached Mutual Funds High Tech Stocks and excerpts party idence from third books newsletters, The pens two other Murphy in a list of including and articles Technology Stock Letter California many experts, describing him as “the man Investing. Murphy hadn’t re- Biotech regard top technology guru,” America’s seeking comment as turned a call Valley “near-legend in ... Silicon Wednesday afternoon. arti stock-picking his One prowess.” site, grad Murphy, Harvard says Murphy’s portfolio ranked On cle model con- by stranger no the investment tracked who’s among fifth best newsletters circuit, touts a 66.4% cumulative page ference Digest. supra Hulbert Financial his newsletter starting return since Appellees’ n. 21. part of review the sum- discuss it as our does not reference this evidence briefs; however, mary judgment evidence. we will in his nevertheless late though specific dates are methods advocated different provided page. contexts, his bio That looks including, apparently, the invest- good Nasdaq vs. the Composite, but it manages. ment funds he We hold that *21 really up doesn’t match with the returns Reynolds did raise not a fact issue as to funds, of his two tech two of the wormi- 17.46(b)(5) his claims under section in apples ravaged est bin. (12). Monterey Murphy The World New Although poor performance records fund, Technology which he’s run since in, Murphy’s cited investment funds launch, averages stunning its 1993 a 20% relatively long-term article are over a peri- past years, annual loss over the five od, we do not believe this raises a fact compared gain with a annual 6% its 17.46(b)(7) under issue section because the peer. average among That’s dead last clearly newsletter indicates that the invest- funds, according Chicago all tech re- Murphy managed sepa- ment funds were Morningstar. search house from aggressive rate and more than the Monterey Murphy The New World investments in Technology recommended fund, Technology Core in the lives Investing and involved a different strate- convertible fund category, bond has gy. But even if this raises a fact equally amassed an stunning record. as to Murphy misrepresen- issue whether Murphy running started the fund experience his expertise picking ted 1996, and it an averages annual 7.5% investments, a it does not raise fact issue past years. loss over the five to appellees’ liability as under section Adding injury, insult both funds 17.46(b)(7). moved Appellees also ratio, carry expense a 1.99% annual well summary on judgment Reynolds’s DTPA peer’s above their A average 1.73%. on ground Reynolds claims could subscription guru’s to this newsletter prove not causation because he admits he per year, though only costs it’s $195 Murphy’s not did follow advice “hold” years. two $375 thus, long-term; the recommended stocks a bargain. What by losses were caused his deci- But appellees’ summary judgment evi- Murphy’s sion to sell stocks against his dence a copy contains the March 2000 any representations advice rather than
issue Technology Investing, in which Murphy’s stock-picking prowess. about states, 17.50(a) § Tex. Bus. & See Com.Code Ann. mutual I manage ag- The funds (Vernon 2002) (DTPA may cause of action I gressive, cash at raised 50% deceptive “pro- be maintained when act a (I you the end didn’t advise ducing cause” of economic or mental an- do since a this we have more conserva- guish damages); Brown v. Bank Galves- tive, long-term approach Technology Assoc., ton, Nat’l 514 S.W.2d Investing.) put But I’ve now most of (Tex.1998) (“Producing requires cause money work back to as individual acts be both cause-in-fact down, I you came and want to do stocks inju- in causing ‘substantial factor’ the same. ries.”). agree We hold that Technology Investing issues relied failed to raise a fact issue under section appellees 17.46(b)(7). both consis- tently emphasize long-term investment in that
approach publication described as further hold that We fact claim opposed aggressive more or short-term did raise a issue on his 17.46(b)(8). and skills in an Murphy’s talents ap- That resented under section section fact, failing past light by to disclose misrepresentations of untrue plies only to manager. Prai- a fund opinion. Tweedell v. Hochheim performance Ass’n, 1 rie Farm Mut. Ins. S.W.3d Conclusion (Tex.App.-Corpus n. Christi Reynolds attrib- pet.). The statements Having appellees determined analysts- other Murphy regarding utes all entitled analyst be- that one was headed for hell claim that except his Reynolds’s claims picks and he had cause of his stock misrepre- engaged fraud and *22 analysts claimed “wall of shame” for by to failing Murphy’s disclose sentation poor of performers-are statements manager, as a fund past performance Thus, Reynolds’s fact. sum- opinion, not except as the trial court’s affirm a mary does not raise judgment evidence reverse and remand to that claim. We 17.46(b)(8) claim. fact on his section issue in fraud and engaged claim that appellees by to misrepresentation failing disclose moved for sum Appellees also a fund man- Murphy’s past performance as 17.46(b)(24) on mary judgment Reynolds’s consistent proceedings for further ager appellees claim: failed disclose to opinion. this with history Murphy’s past purpose subscribing him into to the news inducing MCCOY, J., opinion. concurring a filed provided Murphy’s letter. Appellees Justice, McCOY, concurring. BOB Bishop’s they affidavits in which averred any to they never person intended by in result reached I concur rely on the absence information holding. in majority every but not Murphy’s past history deciding whether with the majority agree that “[w]e holds And or not to subscribe to the newsletter. cases,” re- analysis holdings in these although Reynolds brought forward evi part to v. Dow Jones & ferring Daniel to dence that he would not have subscribed Co., 336- 137 Misc.2d N.Y.S.2d Murphy’s had he known of newsletter (N.Y.Civ.Ct.1987), specifically that bring did past history, he not forward relationship of the was parties “the ‘func- raising appel- a fact issue as to tionally purchaser identical ’ failing lees’ to disclose this infor intent newspaper consequently there newsletter, opposed to the mation in the as relationship par- special no between already other in which it had been media (footnote Maj. Op. 264-65 ties.” See DFW, Inspect disclosed. See Head U.S. omitted) Newspa- (emphasis supplied). Inc., (Tex.App.-Fort gratis many places, such pers are available Thus, pet.). we hold Worth lobbies, library, business etc. public as the summary judg appellees were entitled However, service in this the investment 17.46(b)(24) Reynolds’s claim. ment on only case, by Reynolds, is pointed out subscription reader Accordingly, we overrule available anyone to be misrepre- supposed shown as to fraud and sixth issue according than other the subscriber sentation claims based nondisclosure investment Additionally, the negligent misrepresen- newsletter. negligence, and his updates faxed tation, contract, case includes and DTPA service this breach hotline, requires a fre- telephone as to and a claims. sustain his sixth issue We code, and on-line access misrepresentation quently-changed claims his fraud to the hotline. rep- telephone access code allegation appellees has based on the I agree cannot these equiva- are functional
lents.
I argument also cannot subscribe to the duty provide Reyn- there was no
olds with information about the back-
ground Murphy because “did know was unaware of those
details and because did not intend for
Reynolds or rely other subscribers to
the absence of such details in subscribing Maj.
to the newsletter.” Op. at 270. argument
Such an could be made in virtu-
ally every misrepresentation case and require Reynolds prove
would that ap-
pellees knew that he did not know. The would, sure, proof,
method this I am be *23 interesting trying as to understand
what is meant appel- assertion that
lees did not rely intend for
an absence of information. For these rea-
sons, I concur with the overall result of the
majority but not with the aforementioned. CRANE, Appellant,
Lou CRANE, Appellee.
Donald
No. 2-04-162-CV. Texas, Appeals
Court of
Fort Worth.
Feb.