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Greenlee Enterprises, Inc. v Compass Bank, N.A.

Case No. 05-10-00490-CV (TX Ct. App. 5, Dec. 5, 2011)

In this multi-party suit alleging fraud and conspiracy, the trial court granted seven motions for summary judgment. Because appellants did not raise genuine issues of material fact in response to these motions, we affirm the trial court’s orders.

BACKGROUND



A. Parties to this appeal



In the trial court proceedings, plaintiffs are purchasers of automobile and dry cleaning service centers. Plaintiffs, who are appellants here, identify themselves in five groups. Greenlee Enterprises, Inc. d/b/a Kwik Kar Oil & Lube on Ferris, Gary Greenlee, and Rosemary Greenlee are identified as the Greenlee Plaintiffs. G&W Inc. d/b/a Kwik Kar of Duncanville, Wayne R. Michaels, and Glenda R. Michaels are identified as the Michaels Plaintiffs. Rock Prairie Holding, Inc., Centex Kwik Care, Inc., Bill Lofton, and James Lofton are identified as the Lofton Plaintiffs. Will-Wall Enterprises, Inc., Mitzi Willis, and Dr. Charles E. Willis II are identified as the Willis Plaintiffs. Neighborhood Oil Centers, Inc. d/b/a Kwik Kar Lube, Loyd W. Judd III, and Carla S. Judd are identified as the Judd Plaintiffs.

Appellees are Compass Bank, N.A., Jan Stallons, and Chris Chevreaux d/b/a Chevreaux and Associates (Chevreaux). Although there are several other defendants in the proceedings below, some of which were included by the parties in the caption to this appeal, only Compass Bank, Stallons, and Chevreaux were included in the trial court’s order granting the parties’ joint motion to sever that immediately preceded this appeal.
 

 

Judge(s): Kerry P. FitzGerald
Jurisdiction: Texas Fifth Court of Appeals
Related Categories: Environmental , Finance / Banking
 
Court of Appeals Judge(s)
Kerry FitzGerald
Molly Francis
Elizabeth Lang-Miers

 

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. . . intended that it be brought about." first interstate bank of texas, n.a. v. s.b.f.i., inc., 830 plaintiffs' decision to purchase the kwik kar center. there is no evidence to the contrary. the only the michaels plaintiffs have asserted claims against compass bank for conspiracy, fraud, fraudulent plaintiffs' fraud claim. the elements of fraud are: (1) that a material representation was made; (2) michaels plaintiffs at an inflated price" as appellants allege, or that they "agreed with one or more of fraud by omission is a subcategory of fraud because the omission or in reliance plaintiffs purchased the subject properties and service appellants also contend that they raised a genuine issue of material fact on each element of their claim against stallons for fraud in the sale of fifth district of texas at dallas 9 the michaels plaintiffs signed their contract of sale, including an agreed purchase price, on june 25, knew of any plan to overvalue the service center and sell it to the michaels plaintiffs at an inflated centex kwik care, inc., bill lofton, james lofton, dtpa through the business opportunity act. of these plaintiff groups, onlythe willis plaintiffs are as we have discussed, the only allegation appellants assert regarding the referral fees is that an sba see tex. bus. & com. code ann. 51.301 (west 2009); see also act of may 15, 2007, 80th leg., r.s. ch. 885, 2.01, 2007 tex. gen laws 1915. houston [14th dist.] 2007, no pet.). whether such a duty exists is a appellants do not cite authority or evidence to support their argument that compass bank claims of misrepresentation, fraudulent inducement, and fraudulent concealment against stallons.10 inc. v. tesoro petroleum cos., inc., 217 s.w.3d 653, 670 (tex. entirely clear whether the willis plaintiffs are now attempting to assert a claim against chevreaux specify which claims have been asserted against particular appellees.5 13 (tex. 2006) (defendants "are not required to guess what unpleaded claims might applyand negate unlawful, overt acts; and (5) damages as the proximate result. see ins. co. of n. am. v. morris, 981 enterprises, inc., mitzi willis, and dr. charles e. willis ii are identified as the willis plaintiffs. question of law. marshall, 84 s.w.3d at 786. circumstances, any one of which, or all of which, are just as service center on july 31, 2002. they did not receive a copy, see, or review chevreaux's appraisal of pleaded") (quoting smithkline beecham corp. v. doe, 903 s.w.2d 347, 355 (tex. 1995)); see also judgment in stallons's favor was proper. 17 fraud, fraudulent inducement, deceptive trade practices, and conspiracy. chevreaux's motion for reliance on the representation; and (6) the party thereby suffered injury. see in re firstmerit bank, under the texas business opportunity act. see tex.bus.&com.code ann. 51.302 (west 2009) appellants' expert testified to lower values for each of the properties, but did not offer any expert centers or dry cleaning centers from kwik. they allege that the defendants "entered into a require that a loan packager or a referral agent or any other party that receives appraisal techniques," they did not offer any summary judgment evidence to support this allegation. 425, 426 (tex. 2008) (per curiam). claimed illegal object of the conspiracy and to have intended that it be the part of compass bank to bring that object about. see id. compass bank's actions were as send information to chevreaux regarding appellants' transaction, appellants rely on mitchell's [w]ith regard to stallons, plaintiffs' fraud claims are based upon the used consistent with bank policy with additional review. viewing this evidence in the light most commit the act that results in the injury; there must be a preconceived statutoryfraud in the sale of real estate (see 6 appendix 11 is the same 2008 sba regulation discussed above in reference to compass bank. like stallons's liability to them under the boa. summary judgment for stallons was proper on this michaels, greenlee, and willis plaintiffs, signed on february 13, 2009; chevreaux offered evidence that none of the three plaintiff groups reviewed his appraisal similarly, as to appellants' conspiracy claim, the only acts they allege on the part of stallons summary judgment could have been granted."). plotkin v. joekel, 304 s.w.3d 455, 46869 (tex. app.--houston [1st dist.] 2009, pet. denied) compass bank, in her summary judgment reply stallons offered the version of the sba regulation in loyd w. judd iii, and carla s. judd, appellants consumer's residence." tex. bus. & com. code ann. 17.49(g) (west 2011). in their brief, center was worth the amount set forth in the appraisal and that the evidence motions. when we review a traditional summary judgment in favor of a defendant, we business opportunity act. as a result of a nonsubstantive revision, this section is now found in chapter 51 of the texas business and commerce code. to disclose that she accepted referral fees from lenders in transactions between kwik and purchasers on the list as of july 7, 2003, the date of the stallons letter. appellants also rely on the july 7, 2003 affirm; opinion issued december 5, 2011 lending guidelines. under the sop 50 10(5) 8(a) and (b) of the sba business opportunity act claim against compass bank, and appellants concede that the dtpa does background mccollum, we noted that an exception to this rule exists when the person giving the opinion has opportunity act claims are the judd, lofton, and willis plaintiffs. none of these plaintiffs are representation claimed by the michaels plaintiffs is that the bank, by making the loan, implicitly they argue, "plaintiffs believe this raises a genuine issue of letter and mitchell's testimony to establish that it was inappropriate for compass bank to allow appellants." while we accept as true any factual statements made by appellants regarding stallons dtpa 17.46). according to appellants' brief, however, the only appellants asserting business chevreaux." appellants gary greenlee and wayne michaels offered affidavits making similar q: so it had no bearing whatsoever on your decision to assume conspiracy claim where affidavits "merely discuss the transactions of cashing checks . . . and the loan compass bank that makes any representation about the appraisal or the value of the service center. they allege that "kwik" actually received the consideration under the pennzoil contracts, not compass bank's policy was to request its own appraisals and select its own appraisers.8 michaels plaintiffs. the michaels plaintiffs do not allege there was anything illegal or wrongful communications between the michaels plaintiffs and compass bank prior to the michaels' employed at kwik, lenders often paid referral fees as a result of placement of loans. these fees were equivalent to a false representation when the circumstances impose a stallons in the seven orders that are the subject of this appeal. we affirm the trial court's judgment. opinion by justice fitzgerald1 chevreaux also moved for summary judgment on appellants' claim of conspiracy. the only 7 there is no evidence that compass bank acted in any way to induce the michaels plaintiffs brought about. proof that an individual had some collateral discovery responses to establish that the only representations appellants allege he made were his basis for the boa claim is "representations made by kwik defendants." consistent with their the causes of action alleged by the michaels plaintiffs against it. we first address the michaels demographic data in performing his appraisals," and that chevreaux colluded with kwik "to provide opinions of the values of the properties contained in the appraisal reports. when asked to state each lofton plaintiffs purchased a kwik service center in 2003 for the sum of $1,384,819.06. they were receiving and splitting referral fees in plaintiffs' sba time of appellants' transactions. to support their allegation that it was inappropriate for stallons to the property even though chevreaux was not on the bank's list of approved appraisers. theycontend statements. however, chevreaux filed objections to all three affidavits, asserting that the statements manager" of compass bank since 2000. mitchell testified that the version of sop 50 10(5), sections kwik kar center and sell it to the michaels plaintiffs at an inflated price. to prevail on their false representation only when the particular circumstances impose a duty on the party to speak and regarding the fraud and fraudulent inducement claims, chevreaux offered appellants' practices act (see tex. bus. & com. code ann. 17.4117.63 (west 2011) (dtpa)). although 3 without further citation to the record or any citation to authority. they do not make any statement regarding the elements of a cause of action under consistent with a lawful purpose in making a loan to the michaels plaintiffs as they were with the arising from a transaction, a project, or a set of transactions relating to the same project, involving adduced sufficient evidence to raise a genuine issue of fact on the challenged elements. id. if the the sale had she known that the market value of the service centers was "grossly inflated by motions filed on his behalf in the trial court. 6 ground. see id. for breach of verbal agreement, and defendants' summary judgment motion opposed any reading of underlying the opinion are not equally available to both parties. id. superior expertise, however, that are supported by record references, we do not alter our standards of review depending upon listed above. this appeal followed. we review a summary judgment de novo. smith v. deneve, 285 s.w.3d 904, 909 (tex. chevreaux relies on mccollum v. p/s investments, ltd., 764 s.w.2d 252, 254 (tex. app.-- in considering appellants' issues relating to stallons, we note that stallons did not file a brief that he was not sure of the exact date, but compass bank put chevreaux on the approved list secondary market at a profit, they do not allege the sale was a violation of any law or policy or that a: no. q: did you rely in any way upon the appraisal in assuming the one-page document that includes sections 8(a) and (b) of "sop 50 10(5)." in the bottom failure to disclose may also constitute fraud. in myre v. meletio, 307 s.w.3d 839, 843 (tex. greenlee enterprises, inc. d/b/a kwik kar oil & lube on ferris, although appellants contend that an order granting stallons's motion for summary judgment against the willis plaintiffs was included in an compensation agreement and provide it to the sba. in addition, according to appellants, grossly inaccurate appraisals" of the service centers, appellants may not now assert a boa cause of regulations at sop 50 10(5), 8(a), and (b)." according to appellants, these regulations apply for a small business loan. stallons would ensure the documents were completed and signed, an sba form 159(7a) (fee disclosure form and compensation agreement) must be compass bank was summarized in their interrogatory response, attached to compass bank's motion interstate bank, 830 s.w.2d at 249. appellants failed to raise a fact issue on their conspiracy claim duty to disclose the information." id. at 755. the court explained, "silence may be equivalent to a concealment causes of action against compass bank. by unlawful means); (3) a meeting of minds on the object or course of action; (4) one or more of action and some mutual mental action coupled with an intent to allowing kwik to select the appraiser. 12 wayne r. michaels, glenda r. michaels, rock prairie holding inc., lending transactions (see appendix 11). its own and the sba's policies; by "acting as sba lender" on 24 of kwik's transactions; and by 8 the michaels plaintiffs closed on their purchase of the service center on july31, 2003. theydid not act against any appellee. although appellants allege that chevreaux's appraisals were "not based upon accepted and proper center, and michaels testified that stallons did not make any representations regarding the because there was no genuine issue of material fact regarding the claims of the greenlee, a conspiracy requires a meeting of the minds on the object or course disclosed, either to the sba or to plaintiffs, as required by the sba "agreed with one or more of the other conspirators on the claimed illegal object of the conspiracyand conclusively proved every element of an affirmative defense. id. we take evidence favorable to the conclusions, and other deficiencies. the trial court sustained these objections, and appellants do not mitchell also testified that if an appraiser was not on the approved list, an appraiser could still be represented that the appraisal correctly reflected the value of the service center. the michaels compass bank relies on chevreaux's testimony to establish that the request for the appraisal was made verbally by a representative of compass 2002, pet. denied). a duty to disclose may arise in certain situations transaction, and only the michaels plaintiffs are asserting claims against compass bank. chevreaux 7. order granting stallons's motion for summaryjudgment against the michaels these parties remain pending in the trial court. the one exception is that appellants concede the greenlee and michaels plaintiffs are not asserting claims under the texas business opportunity material fact on the michaels plaintiffs' conspiracy claim. first paid to her individually, and then to a corporation she owned. she would then payhalf of the fee trial court cause no. 05-10901 question about an appraiser's use of market data. chevreaux testified that he would dispute any neighborhood oil centers, inc. d/b/a kwik kar lube, conspiracy may be proved by circumstantial evidence, disconnected to have agreed with one or more of the other conspirators on the 2 not allege any confidential or fiduciary relationship existed with compass bank. see esty v. beal do made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker c. facts relevant to appealed orders plaintiffs. he also provided a copy of sba regulations that were in place in 2003, which did not we were paying." opinions that were not available to them. in fact, they criticize chevreaux for using data that was memorandum opinionmemorandum opinionmemorandum opinionmemorandum opinion of the dtpa, but contend that the judd, lofton, and willis plaintiffs may pursue relief under the c. stallons's motions court of appeals 100490f.p05 appraiser performing an assignment in an effort to keep the appraiser unclouded bythe contract sales the willis, greenlee, and michaels plaintiffs could not have relied on the chevreaux appraisals in offer testimony regarding this policy or its application to compass bank's loan to the agreeing to purchase the service centers and in determining a contract price. without evidence to chevreaux, as we must "resolve every doubt in favor of the nonmovant." see sysco food servs., inc., 890 s.w.2d at 800. deposition testimony. appellants also rely on a letter dated july7, 2003, from stallons to chevreaux distinguish our conclusions in mccollum, and do not point to facts or data underlying chevreaux's evidence is so weak as to create only a mere surmise or suspicion of a fact's existence, or if it is so in this multi-party suit alleging fraud and conspiracy, the trial court granted seven motions for pleading, appellants argue in their brief on appeal that "the kwik defendants" made price." however, mitchell expressly disclaimed any expertise "at the reviewing of appraisal the loan and buy that business. to the failure to disclose referral fees, which we have addressed above, appellants argue hand, a no-evidence motion for summary judgment should be denied if the evidence is sufficient for with respect to compass bank's violation of its own policies, appellants rely on mitchell's representations to them or had any other role in these activities. in appellants' statement of facts, 10 greyhound partners, ltd., 237 s.w.3d 379, 385 (tex. app.-- fact issue whether stallons's providing information to chevreaux was an "unlawful, overt act" borrower's fiduciary duty claim was proper). especially here, where the michaels plaintiffs made effect at the time of the appellants' transactions that did not include the disclosure requirement. requesting an appraisal report for the service center that was sold to the michaels plaintiffs. reasonable and fair-minded jurors to differ in their conclusions. hamilton v. wilson, 249 s.w.3d the kwik service center to the michaels plaintiffs occurred in 2003. in rebuttal, compass greenlee plaintiffs purchased a kwik service center in 2002 for the sum of $1,448,775. the willis enterprises, inc. d/b/a kwik kar oil & lube on ferris, gary greenlee, and rosemary greenlee are before justices fitzgerald, francis, and lang-miers testified that she did rely "on the accuracy of chevreaux's appraisal" and would not have completed the petition to include such a claim). summary judgment in favor of chevreaux was proper on this 15 information to chevreaux was at most "collateral involvement in a transaction" insufficient to conspiracy claim, the michaels plaintiffs must establish the following elements: (1) a combination app.--dallas 2010, pet. denied), we explained: s proper. see in re firstmerit bank, n.a., 52 s.w.3d at 758. s.w.3d 846, 851 (tex. app.--dallas 2008, no pet.) (no-evidence summary judgment proper on 1998); marshall v. kusch, 84 s.w.3d 781, 786 (tex. app.--dallas but compass bank, n.a., jan stallons, and chris chevreaux d/b/a stallons, together with an additional defendant not a party to this appeal, filed a motion for in their sixth amended petition, appellants asserted causes of action for fraud, fraudulent appellants concede this section "may exempt" their purchases of service centers "from the purview establish that she was a conspirator. see first interstate bank, 830 s.w.2d at 249. when we review a no-evidence summary judgment, we inquire whether the nonmovant challenge this ruling on appeal. even if we consider the testimony, the evidence is undisputed that "packages" would contain forms such as personal financial statements of the proposed borrower, insufficient to establish conspiracy. plaintiffs signed their contract of sale, including an agreed purchase price, on april 7, 2003. the other conspirators" on this purpose. see first interstate bank, 830 s.w.2d at 249 (citations the michaels plaintiffs' loan. centers and/or dry cleaner from kwik industries and ray ellis. identified as the judd plaintiffs. 8(a) and (b) in appendix 11 was not in place in 2003 at the time of the loan to the michaels we note that motions for summary judgment were also filed by kwik and ellis, but the trial court denied them. appellants' claims relating to affidavits of ownership, authorizations to release information, and other documents necessary to practices, and conspiracy, the trial court's summary judgment in favor of chevreaux was proper. loans to the greenlee, michaels, and willis plaintiffs. as discussed in connection with the authority other than the sba guideline to support their allegation that stallons had a dutyto disclose finally, we address the claims of the lofton and judd plaintiffs under the boa. in addition even if we assume compass bank violated an internal policy, however, summaryjudgment is neighborhood oil centers, inc. d/b/a kwik kar lube, loyd w. judd iii, and carla s. judd are owed the michaels plaintiffs any duty of disclosure. as we explained in myre, a duty to disclose against the michaels plaintiffs, signed on february 12, 2009; plaintiffs, signed on march 6, 2009; some of which were included by the parties in the caption to this appeal, only compass bank, arose.7 d. issues michaels plaintiffs purchased a kwik service center in 2003 for the sum of $1,594,270.86. the selling the loans on the secondary market and making a profit. appellants allege an inappropriately centers. plaintiffs, who are appellants here, identify themselves in five groups. greenlee section 17.49(g) of the dtpa provides, "nothing in this subchapter shall apply to a cause of action bradford v. vento, 48 s.w.3d 749, 755 (tex. 2001). in the absence of subissue refers collectively to "defendants." other sba policy that would have required disclosures of referral fees at the time of the loan to the regulations, appellants attached as appendix 11 to their summary judgment response a not in effect at the time of the sale of the service center to the michaels plaintiffs. appellants did not offer evidence to the contrary. kwik to select the appraiser, to communicate directly with the appraiser, to provide a copy of the 5 the representation was false; (3) when the representation was made, the speaker knew it was false or address compass bank's summary judgment evidence that the policy was not in force at the time of compass bank provided financing for the michaels plaintiffs' purchase of a kwik service also supplied to them in pro forma statements from ellis. to their customers, specifically the michaels plaintiffs." they cite bradford v. vento, 48 s.w.3d "sometime back in 2003," and he did not know without looking at the file whether chevreaux was a: no. 8 in an affidavit offered in response to chevreaux's motion for summary judgment, mitzi willis under the boa. while they argue on appeal that "chevreaux used the kwik defendants' 11 concisely and without argument the facts pertinent to the issues or points presented. in a civil case, not allege any boa claim against chevreaux. in their operative petition, appellants assert their boa justice action against chevreaux that they did not plead. see via net v. tig ins. co., 211 s.w.3d 310, 312 compass bank provided financing in connection with only the michaels plaintiffs' finally, we address the michaels' plaintiffs' claim against compass bank under the dtpa. misrepresentation appellants alleged to have been made by chevreaux, appellants responded: s.w.2d 239, 249 (tex. app.--dallas 1992, no writ). there is no evidence that compass bank knew 14 in favor of stallons against the willis plaintiffs. of any plan or purpose of the other defendants to "overvalue the kwik kar center and sell it to the we next address appellants' deceptive trade practice claims. as noted above, appellants 5. order granting stallons's motion for summary judgment against the judd against chevreaux. concede that the consideration for their transactions exceeded the $500,000 limit of section 17.49(g) into the transaction or to pay a particular price for the service center. the only evidence is that the made the representation with the intent that the other party should act upon it; (5) the party acted in plaintiffs, signed on march 6, 2009; 3. order granting chevreaux's motion for summary judgment against the "cozy relationship" existed among kwik, chevreaux, and compass bank, raising genuine issues of receive a copy, see, or review chevreaux's appraisal of their property until the closing. the willis 6. order granting stallons's motion for summary judgment against the lofton these actions were in violation of compass bank's own policies, and also in violation of regulations judgment against the michaels plaintiffs. chevreaux filed a motion for summary judgment against compass bank filed both no-evidence and traditional summary judgment motions on all of a matter of law to establish a conspiracy. id.; see also denson v. dallas cty. credit union, 262 compass bank. expressions of an opinion and therefore were not fraudulent misrepresentations as a matter of law. in plan and unity of design and purpose. the defendant must be shown associates (chevreaux). although there are several other defendants in the proceedings below, dallas county, texas information to them. without a duty to disclose, summary judgment was proper on appellants' see myre, 307 s.w.3d at 843. here, there was no partial disclosure, and the michaels plaintiffs do we affirm the summary judgments on all claims asserted by the michaels plaintiffs against michaels plaintiffs. appellants' summary judgment evidence established that the sale of regarding their causes of action for conspiracy, material misrepresentation and fraudulent which should have been paid to plaintiffs." appellants do not cite any evidence that stallons made without evidence to raise a fact issue regarding whether a material misrepresentation was made and 749, 754 (tex. 2001), for the elements of fraudulent concealment. the bradford court, content of the chevreaux appraisals, specifically, that the service which are just as consistent with a lawful purpose as with an unlawful undertaking are insufficient as loan? are acceptance of referral fees, failure to disclose the fees, and providing information to chevreaux. n.a., 52 s.w.3d 749, 758 (tex. 2001) (orig. proceeding). kwik care, inc., bill lofton, and james lofton are identified as the lofton plaintiffs. will-wall receive a copy, see, or review chevreaux's appraisal of their propertyuntil "sometime after closing." the willis plaintiffs did not file a separate summary judgment response; they joined in a response filed on behalf of all of the plaintiffs. in fact, glenda michaels testified: "q: so you were never told who the lender would be before closing? a: no. . . . q: did it matter to you who 16 bank was the lender in other kwik transactions is not in itself proof of an unlawful conspiracy. as neither in their summary judgment responses nor in their brief on appeal do appellants cite any bank offered an affidavit from stuart mitchell, a senior vice president and "sba operations bank, s.s.b., 298 s.w.3d 280, 304 (tex. app.--dallas 2009, no pet.) (cases relied on byborrower to michaels plaintiffs. in their appellate brief, appellants again rely on the 2008 policy and do not for summary judgment: "compass bank, by making the loan which allowed us to purchase the plaintiffs. chevreaux did not prepare appraisals for the sales to the lofton plaintiffs or the judd s.w.2d 667, 675 (tex. 1998). the michaels plaintiffs allege that compass bank participated in the conspiracybyviolating 4. order granting stallons's motion for summaryjudgment against the greenlee raise a fact issue as to a material representation made with knowledge of its falsity and action in plaintiffs' dtpa claim against compass bank. 13 real estate under section 27.01 of the texas business and commerce code. however, they rely entirely on "the foregoing evidence of probative force," seven motions for summary judgment. they contend there are genuine issues of material fact whether the michaels plaintiffs relied on it to their detriment, summary judgment on their plaintiffs, signed on march 6, 2009. chevreaux's appraisal relating to the willis plaintiffs' purchase was dated august 5, 2003. the not precluded on appellants' conspiracy claim. first, there is no evidence that compass bank between lender and borrower; since no such circumstances presented, summary judgment on in the trial court proceedings, plaintiffs are purchasers of automobile and drycleaning service he deliberately remains silent," and noted that "[w]hether such a dutyexists is a question of law." id. center, loaning appellant g&w inc. d/b/a kwik kar of duncanville (g&w) the sum of $1,275,000. a. compass bank's motions however, also stated that "failure to disclose information does not constitute fraud unless there is a the trial court properly granted summary judgment for compass bank, chevreaux, and the nonmovant. sysco food servs., inc. v. trapnell, 890 s.w.2d 796, 800 (tex.1994). whether or not an appellee has filed a brief. see tex. r. app. p.38.1(g) (appellant's brief "must state appellants also argue the "kwik defendants"11 paid kwik a referral fee as part of the loan transaction, and that compass used chevreaux to appraise willis plaintiffs closed on their purchase of the service center on august 18, 2003. they did not appellants' appraisal expert offered no opinion on the subject. mitchell's testimonydoes not raise a not apply to the michaels plaintiffs' purchase, summary judgment was proper on the michaels' inducement, fraudulent concealment, violations of the texas business opportunity act (see tex. ground. justice kerry fitzgerald was not present for oral argument but participated in the disposition of this appeal. chief justice carolyn wright was on appeal. in their reply brief, appellants argue that because stallons did not file a brief, we must present for oral argument but did not participate in the disposition of this appeal. appellants do not contend stallons made representations to them to induce them to enter into summary judgment against each plaintiff group. compass bank filed motions for summary fact that she received referral fees on sba loans which were not 9 a. parties to this appeal determine whether the defendant conclusively disproved an element of the plaintiff's claim or 20 we next address the conspiracy claim. the michaels plaintiffs allege that compass bank include the disclosures and forms required by the 2008 policy. he testified he was not aware of any stallons. appellants make no argument or reference to the record to raise a fact issue regarding guidelines, stallons and ellis both had a duty to disclose the fact that prepared appraisals for the sales of kwik service centers to the greenlee, willis, and michaels reliance on the representation, summaryjudgment on appellants' fraud claims against chevreaux was statement by compass bank that it was not appropriate for him to receive a copy of a sales contract. discussion will-wall enterprises, inc., mitzi willis, dr. charles e. willis, projected car count, income, and profitability of the service centers purchased by plaintiffs." of the small business administration.6 michaels plaintiffs agreed to the purchase price before compass bank became involved in the appellees are compass bank, n.a., jan stallons, and chris chevreaux d/b/a chevreaux and conspiracy to commit misrepresentation and deceptive trade practices in the sale, overvaluation and together to go to the lender" for kwik, in connection with sales of kwik service centers. the (violation of business opportunity act is a false, misleading, or deceptive act or practice under conspiracy claim was proper. q: wouldn't you agree? lender's control of borrower's business, would be required before fiduciary relationship created instead, each appellate bus.&com. code ann. 51.301 (west 2009) (boa)),4 section 27.01 or any argument regarding application of the evidence to those elements. in addition, stallons moved for summaryjudgment on appellants' unlawful purpose alleged by appellants. see id. summary judgment on the michaels plaintiffs' plaintiffs, signed on march 6, 2009; and conclusion consistent with lawful purpose as with unlawful undertaking, are 19 a duty to disclose, however, a failure to disclose does not constitute kerry p. fitzgerald 7 on appeal from the 162nd judicial district court decision to purchase the service center and agreed on a purchase price before compass bank became because no substantive change was made by the revision, we will cite to the current version of the statute. appraisal was based upon accepted and proper appraisal techniques. plaintiffs, and neither of these groups are asserting claims against him. to establish that the defendant was a conspirator. although a signed by the small business applicant, the agent and the lender. to evidence these finance transactions"). of the dtpa," but they contend that they may pursue relief under the dtpa as part of their claim 4 1. order granting compass bank's traditional motion for summary judgment of service centers. neither stallons nor any other party has contested that stallons accepted fees and and others "knowingly engaged in a common plan, device, scheme, or artifice" to overvalue the plaintiffs purchased a kwik dry cleaning service center in 2003 for the sum of $1,674,805. the 5 in the app.--dallas 2009, no pet.). compass bank, chevreaux, and stallons filed both traditional and no- the lender was? a: no." decision to purchase the service centers. the greenlee plaintiffs closed on their purchase of the 2. order granting compass bank's no-evidence motion for summary judgment it is undisputed that compass bank did not make any representations to the michaels conspiracy claims against compass bank, circumstances which are just as consistent with a lawful with any of the appellants except michaels prior to each appellant group's purchase of a service g&w inc. d/b/a kwik kar of duncanville, bank and that chevreaux never received the july 7 letter from stallons. this evidence at most creates a fact issue as to the source of the request to compass bank did not have a valid business reason for doing so. similarly, the fact that compass this defendant's name is spelled alternately throughout the record as "hinson." the correct spelling appears to be "henson," according to to chevreaux included a copy of the sales contract, which would normally not be supplied to an non disclosure may be as misleading as a positive misrepresentation disclose. as stated in their summary judgment response, appellants contend: the michaels, greenlee, and willis plaintiffs. the trial court granted these motions in the orders 2 a brief on appeal. as we discuss further below, we note that compass bank offered summary judgment evidence that the sba regulation it allegedly violated was 4 reviewing court will affirm the summary judgment as to a particular claim if an appellant does not present argument challenging allgrounds on which the made were conclusory, constituted incompetent expert opinions, were speculation, included legal fiduciary relationship. see solutioneers consulting, ltd. v. gulf and this was a violation of compass bank's internal policies. mitchell's testimony on this point is them" in summary judgment motion; defendant "is only required to meet the plaintiff's case as appraisers at the time he performed the appraisal for the service center sold to the michaels plaintiffs 2003. chevreaux's appraisal relating to the michaels plaintiffs' purchase was dated july 27, 2003. gary greenlee, rosemary greenlee, required for a conspiracy. see ins. co. of n. am., 981 s.w.2d at 675. further, stallons's providing reports prior to closing of the sales, and so did not rely on the appraised values in making the reverse the summary judgments in her favor because "she has failed to prove that she met the these motions, we affirm the trial court's orders. the judd plaintiffs purchased a kwik service center in 2001 for the sum of $1,298,921. the appellants appeal seven orders: 10 a: no. involved in the transaction. both wayne and glenda michaels testified that there were no plaintiffs, however, do not point to anything in the loan documents or any other communication by establish fiduciary relationship with bank actually held that "extraordinary circumstances," such as regulation required their disclosure, and the record shows that this regulation was not in force at the summary judgment alleged both traditional and no-evidence grounds and was directed to all of the inducement, and deceptive trade practices. the basis for the michaels plaintiffs' claims against no. 05-10-00490-cv favorable to appellants, there is some evidence that compass bank violated its own policies by appellants' claims under these statutes. see adams v. first nat'l bank of bells/savoy, 154 s.w.3d 859, 875 (tex. app.--dallas 2005, no pet.) ("[a] acts alleged in furtherance of the conspiracywere preparation of the appraisals in connection with the total consideration by the consumer of more than $500,000, other than a cause of action involving a "defendants" are liable under the boa for making "untrue statements of material facts related to b. chevreaux's motion compensation from representing an applicant for an sba loan must execute a a: yes, sir. does not constitute superior knowledge. id. at 255. appellants do not address or attempt to a material fact as to whether or not compass bank's policies required disclosure of these violations generally . . . the misrepresentations were made in the form and first interstate bank, 830 s.w.2d at 249 (citations omitted). without evidence that compass bank the trial court properly granted summary judgment on appellants' fraud and fraudulent summary judgment. because appellants did not raise genuine issues of material fact in response to chevreaux and associates, appellees standards of review testimony. in their brief, they argue, "mitchell also testified that the appraisal request from stallons did not make any disclosures to appellants. given these facts, we determine whether summary omitted). second, compass bank obtained the appraisal in the process of providing a loan to the tex. bus. & com. code ann. 27.01 (west 2009)), and violations of the texas deceptive trade nonmovant as true, and we indulge every reasonable inference and resolve every doubt in favor of existed a conspiracy among other parties to it is insufficient of itself fraud. see ins. co. of n. am. v. morris, 981 s.w.2d 667, 674 (tex. plaintiffs prior to their purchase of the service center. wayne michaels testified he made the sales contract to the appraiser, and to select the environmental inspector. mitchell did admit that about the loan. although a conspiracy may be proven by circumstantial evidence, circumstances jan stallons, business loan center, l.l.c., tim meeks, compass bank, q: you never even saw it, did you? 3 1 and glenda r. michaels are identified as the michaels plaintiffs. rock prairie holding, inc., centex purpose as with an unlawful undertaking are insufficient to establish a conspiracy. see first may arise in situations involving partial disclosure or where a confidential or fiduciary duty exists. ray ellis, gary henson,3 then submit them to lenders. stallons testified in her deposition that during the time she was the court will accept as true the fact stated unless another partycontradicts them. the statement must summary judgment burden" and "failed to contradict or contest the considerable evidence raised by sever that immediately preceded this appeal. identified as the greenlee plaintiffs. g&w inc. d/b/a kwik kar of duncanville, wayne r. michaels, amended notice of appeal, the record includes only an order that is not signed. therefore, there are no issues before us regarding anysummaryjudgment be supported by record references."). appellants' allegations against stallons arise out of her failure claims asserted against him. price, there was no evidence of a meeting of the minds on the object of the conspiracy or an intent on in a single issue with six subparts, appellants contend the trial court erred in granting the appellants allege mitchell admitted that chevreaux was not on compass bank's list of approved of fact where a party has a duty to disclose. four bros. boat works, transaction. while the michaels plaintiffs complain that compass bank sold the loan on the in their operative petition, appellants cite to section 41.301 of the texas business and commerce code regarding their claim under the texas the michaels plaintiffs also argue compass bank should have disclosed that compass bank documents," and stated, "[y]ou would have to speak to an appraiser, what he does" in response to a misrepresentations that are actionable under the boa, including providing inaccurate data. it is not 18 b. summary judgment orders appealed from2 opinions that chevreaux's methodology was deficient. not all of the appellants are asserting all of these claims against every appellee, appellants do not their property until june 23, 2005. and gary greenlee testified: of two or more persons; (2) an object to be accomplished (an unlawful purpose or a lawful purpose stallons, and chevreaux were included in the trial court's order granting the parties' joint motion to dallas 1988, writ denied), for the proposition that his statements as to the value of the property were slight as to make any inference a guess, the evidence is in legal effect "no evidence," and summary were "taking pennzoil payments at each closing . . . the transactions with kwik. as noted, appellants' allegations against stallons arise out of failures to 21 the only violation of sba regulations alleged by appellants is a violation of "sba loan reasonableness of the purchase price and did not induce him to sign the contract. stallons did not file against the michaels plaintiffs, signed on february 12, 2009; michaels, and willis plaintiffs against chevreaux for fraud, fraudulent inducement, deceptive trade asserting claims against chevreaux. in their summary judgment response, the willis plaintiffs9 and chevreaux. appellants contend they were fraudulently induced to purchase automobile service involving partial disclosure or when the parties have a confidential or their decision to purchase the service center without any reliance on the bank, no duty to disclose knowledge superior to that of the person relying upon the opinion, as, for example, when the facts stallons was an employee of kwik from 1995 to 2008. she was hired to "put the packages app.--houston [14th dist.] 2006, pet. denied). thus, silence maybe we explained in first interstate bank: service center, represented that the appraisal was correct and the service center was worth the price claims under the texas finance code, and appellants' brief is silent on those claims. summary judgment in favor of stallons was appropriate on the greenlee, michaels, and willis plaintiffs are asserting claims against chevreaux for misrepresentation claim was proper. 11 (summary judgment for defendants proper where plaintiff's petition did not give fair notice of claim asserting a claim against compass bank. because the michaels plaintiffs are not asserting a duty to speak on the party and he deliberately remains silent. judgment is proper. ford motor co. v. ridgway, 135 s.w.3d 598, 601 (tex. 2004). on the other financing of the service centers all for defendants' mutual profit." v. she received to ellis. the summary judgment evidence showed that stallons did not communicate left corner of this document is printed, "effective date: august 1, 2008." appellants did not claim only against "the kwik defendants," identified as kwik, ellis, henson, and stallons. the involvement in a transaction and had good reason to believe that there concealment, conspiracy, and violations of several statutoryprovisions against kwik industries, inc.,


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