NO CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS BANK OF TEXAS, N.A. Appellant, CLINT M. GLENNY, II. Appellee.

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1 NO CV ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 February 13 P9:27 Lisa Matz CLERK IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS BANK OF TEXAS, N.A. v. Appellant, CLINT M. GLENNY, II Appellee. ON APPEAL FROM THE 193RD JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS BRIEF OF APPELLANT BANK OF TEXAS, N.A. ORAL ARGUMENT REQUESTED Barbara L. Emerson Texas State Bar No BELLINGER & DeWOLF, LLP 10,000 N. Central Expy, Suite 900 Dallas, Texas Telephone: 214/ Facsimile: 214/ ATTORNEYS FOR APPELLANT BOKF, N.A. d/b/a BANK OF TEXAS, successor-in-interest to BANK OF TEXAS, N.A.

2 IDENTITY OF THE PARTIES PARTIES BOKF, N.A. d/b/a BANK OF TEXAS, successor-in-interest to BANK OF TEXAS, N.A. Clint M. Glenny, II COUNSEL Barbara L. Emerson Texas State Bar No Bellinger & DeWolf, LLP 10,000 N. Central Expy, Suite 900 Dallas, Texas Telephone: 214/ Facsimile: 214/ William D. Crist, Esq N.W. Loop 410 San Antonio, Texas Telephone: (210) Facsimile: (210) None Richard Woods, Esq N.W. Loop 410 San Antonio, Texas Telephone: (210) Facsimile: (210) i

3 TABLE OF CONTENTS IDENTITY OF THE PARTIES... i TABLE OF CONTENTS... ii APPENDIX TABLE OF AUTHORITIES... iv RECORD REFERENCES... vii STATEMENT OF THE CASE... viii REQUEST FOR ORAL ARGUMENT... ix ISSUES PRESENTED... x I. STATEMENT OF FACTS... 1 II. SUMMARY OF ARGUMENT... 5 III. ARGUMENT... 6 A. Standard of Review No-Evidence Motion for Summary Judgment Traditional Motion for Summary Judgment B. Issues Presented Issue No. 1: Issue No. 1A: Issue No. 1B: Issue No. 1C: Issue No. 2: Issue No. 2A: The Trial Court Erred in Granting Defendant's No-Evidence Motion for Summary Judgment The Trial Court Erred in Granting Summary Judgment When the Defendant Not Only Failed to Plead the Defenses, Defendant Failed to Make the Required Verified Denial The Trial Court Erred in Granting A No-Evidence Motion for Summary Judgment As There Was More Than a Scintilla of Evidence That Glenny Made the Misrepresentations The Trial Court Erred in Granting A No-Evidence Motion for Summary Judgment As the Economic Loss Rule Does Not Bar the Claim For Negligent Misrepresentation The Trial Court Erred in Granting The Traditional Motion for Summary Judgment as Defendant Failed to Meet His Burden and There Remain Genuine Issues of Material Fact The Trial Court Erred in Granting Summary Judgment on the Ground There Was No Vicarious Liability As Defendant Failed to Meet His Burden of Proof and There Remain Genuine Issues of Material Fact ii

4 Issue No. 2B: The Trial Court Erred in Granting the Traditional Motion for Summary Judgment as Defendant Failed to Meet His Burden of Proof and There Remain Genuine Issues of Material Fact Whether Bank of Texas Justifiably Relied Upon the Misrepresentations by Clint M. Glenny, II CONCLUSION CERTIFICATE OF SERVICE APPENDIX Tab 1 Tab 2 Order on Defendant Clint M. Glenny, II's Motion for Summary Judgment signed September 28, 2011: CR 703 Order on Defendant Clint M. Glenny, II's Motion for Summary Judgment signed September 29, 2011: CR 705 Tab 3 Final Judgment signed September 29, 2011: CR 708 Tab 4 Defendant's [Clint M. Glenny, II's] Third Amended Answer: CR 234 Tab 5 Verification of Deposit dated January 8, 2008: CR 341 Tab 6 Glenny Letters: CR 688, 690 iii

5 TABLE OF AUTHORITIES Cases Am. Nat'l Ins. Co. v. Denke, 95 S.W.2d 370 (1936)... 16, 17 Ana Inc. v. Lowry, 31 S.W.3d 765 (Tex. App. Houston [1 st Dist.] 2000, no pet.)... 16, 23 Andrews v. Sullivan, 76 S.W.3d 702 (Tex. App. Corpus Christi 2002, no pet.) Arterbury v. Am. Bank & Trust Co., 553 S.W.2d 943 (Tex. Civ. App. Texarkana 1977, no writ.) B. Smith Co. v. U.S. Fid. & Guar. Co., 850 S.W.2d 621 (Tex. App. Corpus Christi 1993, writ denied) Brown & Brown of Tex. Inc. v. Omni Metals, Inc., 317 S.W.3d 361 (Tex. App. Houston [1 st Dist.] 2010 pet. denied) Bufkin v. Bufkin, 259 S.W.3d 343 (Tex. App. Dallas 2008, pet. denied) City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005)... 8, 14 Contra: Tarrant County Hosp. Dist. v. GE Automation Services, Inc., 156 S.W.3d 885 (Tex. App. Fort Worth 2005, no pet.) Crowson v. Wakeham, Cause No CV, 1996 Tex. App. LEXIS 2158 (Tex. App. Dallas May 29, 1996, no writ hist.) D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662 (Tex. 1998) (per curiam) DeBord v. Muller, 446 S.W.2d 299 (Tex. 1969) DeWitt v. Harris County, 904 S.W.2d 650 (Tex. 1995) First Interstate Bank, N.A. v. S.B.F.I., Inc., 830 S.W.2d 239 (Tex. App. Dallas 1992, no writ hist.) Forney 921 Lot Dev. Part. I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258 (Tex. App. Dallas 2011, pet. filed)... 7, 8, 9, 10, 22 iv

6 Furmanite Worldwide, Inc. v. NextCorp., Ltd., 339 S.W.3d 326 (Tex. App. Dallas-2011, no pet.)... 8 Gonzales v. Sheng Wai Brass & Metal Wares Factory, Ltd., 190 S.W.3d 742 (Tex. App. San Antonio 2005, no pet.) Grant Thorton LLP v. Prospect High Income Fund, 314 S.W.3d 913 (Tex. 2010) Gutherie v. Suiter, 934 S.W.2d 820 (Tex. App. Houston [1 s ] Dist.] 1996, no pet.) Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826 (Tex. App. Amarillo 1993, writ denied.) Howard v. The Burlington Ins. Co., 347 S.W.3d 783 (Tex. App. Dallas, 2011, no pet.)... 7, 8, 22 Jobe v. Lapidus, 874 S.W.2d 764 (Tex. App. Dallas 1994, writ denied) Johnson v. Brewer & Pritchard, 73 S.W.3d 193 (Tex. 2002)... 8 Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex. 1983)... 8 King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003)... 7 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997)... 7 Methodist Hosp. of Dallas v. Corp. Communicators, Inc., 806 S.W. 2d 879 (Tex. App. Dallas 1991, writ denied) Millian v. Dean Witter Reynolds, 90 S.W.3d 760 (Tex. 2002) Moore v. KMart Corp., 981 S.W.2d 266 (Tex. App. San Antonio 1998, pet. denied)... 9 Mukoro v. Meyer, No , 2011 Tex. App. LEXIS 5700 (Tex. App. Dallas, July 26, 2011, no pet.) Nazareth International, Inc. v. J.C. Penney Co., Inc., 287 S.W. 3d 452 (Tex. App. Dallas 2009, pet. denied) v

7 Nixon v. Mr. Property Mgmt Co., 690 S.W.2d 546 (Tex. 1985)... 8 Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, (Tex. 1991) Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76 (Tex. 1989) Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840 (Tex. 1979) (orig. proceeding) Sci. Spectrum v. Martinez, 941 S.W.2d 910 (Tex. 1997)... 8 Scottish Heritage Trust PLC v. Peat Marwick Main & Co., 81 F.3d 606 (5 th Cir. 1996) Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407, 2011 Tex. LEXIS 805 (Tex. 2011)... 18, 19, 20 Tex. Municipal Power Agency v. Pub. Utility Com. of Texas, 253 S.W.3d 184 (Tex. 2007)... 6 Trans-Gulf Corp. v. Performance Aircraft Servs. Inc. 82 S.W.9d 691 (Tex. App. Eastland 2002, no pet.) Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005)... 6 Woods v. William M. Mercer, Inc., 769 S.W.2d 515 (Tex. 1988) Rules TEXAS RULE OF CIVIL PROCEDURE TEXAS RULE OF CIVIL PROCEDURE 93(7)... 5, 11, 13 TEXAS RULE OF CIVIL PROCEDURE , 10, 11 TEXAS RULE OF CIVIL PROCEDURE 166a(c) TEXAS RULE OF CIVIL PROCEDURE 166a(i)... 6, 7 vi

8 RECORD REFERENCES The Clerk's Record has been filed in multiple parts with repeating page references. Citations to the Record filed December 15, 2011 will be given as "CR " with reference to a specific page in that record. Citations to the Supplemental Record filed January 23, 2011 will be given as "SCR " with reference to a specific page in the Supplemental Record. vii

9 STATEMENT OF THE CASE BOKF, N.A. d/b/a Bank of Texas successor-in-interest to Bank of Texas, N.A. ("Plaintiff" or "Bank of Texas") initiated this suit in the 193 rd Judicial District Court for Dallas County, Texas as a suit on a promissory note against a borrower Cindy Lantrip, Cause No During discovery and investigation, including the attempt to first interview and then depose Appellee and Defendant Clint M. Glenny, II, Bank of Texas investigated certain underwriting documents provided by others. This included two (2) letters provided by The Glenny Law Firm. After receipt of an affidavit from The Glenny Law Firm, purporting to disclose the circumstances surrounding the letters, the Bank of Texas then filed its First Amended Original Petition on July 23, 2009 (the "Amended Petition"). CR 26. The Amended Petition added claims of fraud and conspiracy against the borrower and three (3) additional defendants. It also added a claim for negligent misrepresentation against Appellee Clint M. Glenny, II, an attorney licensed by the State of Texas and another Texas attorney William R. Ravkind. 1 Shortly before the fifth trial setting, on August 12, 2011, Appellee Clint M. Glenny, II filed his No-Evidence and Traditional Motion for Summary Judgment. CR 619. Subsequent to the hearing on September 19, 2011, the Trial Court granted the motion without identifying any grounds for its ruling. CR 703, 705. The Court signed the Final Judgment on September 29, CR 708. Bank of Texas has filed this appeal from the Final Judgment and the order(s) granting the summary judgment as to Clint M. Glenny, II. 1 Claims against Mr. Ravkind are the subject of a separate appeal in this Court, Case No CV. viii

10 REQUEST FOR ORAL ARGUMENT Due to the complex issues arising from the claim for negligent misrepresentation, the legal issues involved, and the relationship of this case to a related appeal, Case No CV, Appellant respectfully requests that this Court permit the presentation of oral argument. ix

11 ISSUES PRESENTED Issue No. 1: The Trial Court Erred in Granting Defendant's No-Evidence Motion for Summary Judgment. Issue No. 1A: Issue No. 1B: Issue No. 1C: The Trial Court Erred in Granting Summary Judgment When the Defendant Not Only Failed to Plead the Defenses, Defendant Failed to Make the Required Verified Denial. The Trial Court Erred in Granting A No-Evidence Motion for Summary Judgment As There Was More Than a Scintilla of Evidence That Glenny Made The Misrepresentations. The Trial Court Erred in Granting A No-Evidence Motion for Summary Judgment As the Economic Loss Rule Does Not Bar the Claim For Negligent Misrepresentations. Issue No. 2: The Trial Court Erred in Granting the Traditional Motion for Summary Judgment as Defendant Failed to Meet His Burden and There Remain Genuine Issues of Material Fact. Issue No. 2A: Issue No. 2B: The Trial Court Erred in Granting Summary Judgment on the Ground There Was No Vicarious Liability As Defendant Failed to Meet His Burden of Proof and There Remain Genuine Issues of Material Fact. The Trial Court Erred in Granting the Traditional Motion for Summary Judgment as Defendant Failed to Meet His Burden of Proof and There Remain Genuine Issues of Material Fact Whether Bank of Texas Justifiably Relied Upon the Misrepresentations by Clint M. Glenny, II. x

12 I. STATEMENT OF FACTS This litigation arises from a residential construction loan by BOKF, N.A., d/b/a Bank of Texas, successor-in-interest to Bank of Texas, N.A. ("Bank of Texas"). On February 11, 2008, Bank of Texas made a residential construction loan to Defendant Cindy Lantrip ("Lantrip"). The loan was evidenced by a Promissory Note dated February 11, 2008, in the original principal amount of $1,939, CR 42. As part of the loan Lantrip executed the Contract for Improvements with Deed of Trust and Power of Sale (the "Deed of Trust"), which pledged as security for the Promissory Note all the real and personal property, and improvements on the land located at the street address of 4217 Colgate, University Park, Texas (the "Property"). CR 45. The contractor for the project was Tower Custom Homes, LLC, owned and operated by Kevin Wiley. CR 45, 51; SCR 96:Smith Aff. 8. Tower Custom Homes, LLC and/or Kevin Wiley were and continue to be a client of Defendant and Appellee Clint M. Glenny, II. SCR 280: Glenny 39:18-40:16; SCR 277:Glenny 27:21-28:2. The loan was presented to Jennifer Normile, a loan officer at Bank of Texas, by Metropolitan Mortgage, a company owned and operated by Ted "Chip" Ferrier. SCR 147:Normile Aff. 3. Jennifer Normile provided the initial approval of the loan and was ultimately responsible for funding and management of the loan. SCR :Normile Aff. 2. As part of the underwriting documents, Metropolitan Mortgage submitted a Verification of Deposit signed by William Ravkind, a Dallas attorney and two (2) letters from Appellee Clint M. Glenny, II, ("Glenny") a San Antonio attorney purporting to substantiate Lantrip's access to the cash accounts identified in the Verification of Deposit BRIEF OF APPELLANT PAGE 1 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

13 (the "Glenny Letters"). SCR 149:Normile Aff. 11. The Verification of Deposit was dated January 8, 2008, and identified William Ravkind, Attorney at Law, as the depository of two (2) accounts identified under type as "trust". The Verification of Deposit identified the accounts by account number making the following representations: SCR 153. Current Balance Average Balance for Previous two months Date Opened $713,000 $698,000 05/05 $497,000 $484,000 05/05 The Glenny Letters are on the letterhead of "The Glenny Law Firm", bear a signature purporting to be that of Clint M. Glenny, II, are dated February 4, 2008, and make the following representations: and This firm has been asked to verify certain aspects of Ms. Lantrip's employment. Ms. Lantrip has been self-employed for more than two (2) years. The name of her company is Lantrip Company. She does not need a license to operate this business. Her move to Dallas will not negatively impact her business, as she has had an office in Dallas for over two (2) years. The business operated as a legal entity. My firm has been requested to advise of the status of Ms. Lantrip's trust accounts. Ms. Lantrip has full access to both trust accounts and she has no limit on the amounts that she may withdraw. SCR Glenny, or an employee of his law firm, prepared the letters as part of its legal representation of Tower Custom Homes, LLC and Kevin Wiley. SCR 59-61; SCR 278:Glenny 33:8-34:1. The Glenny Letters verified that the borrower Lantrip was selfemployed and advised the "status" of her trust accounts was such that she had full access to the $1.2 million in cash. Both Glenny Letters were addressed "To Whom It May Concern". Both Glenny Letters show on their face that they were delivered to two (2) facsimile BRIEF OF APPELLANT PAGE 2 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

14 numbers. SCR The first number, is the facsimile number for Mr. Ferrier at Metropolitan Mortgage. SCR :Ferrier 20:4-213; SCR : Ferrier 67:9-68:24. Prior to creating or sending the Glenny Letters, no one at The Glenny Law Firm had any contact with Lantrip. SCR 203:Domiguez Aff. 6, 9 and 10; SCR :Kevin Wiley Glenny testified that the letters were prepared as part of his attorney-client representation of his existing client, Kevin Wiley. SCR 278:Glenny 33:8-34:1. Prior to approving the loan to Lantrip, Ms. Normile required this documentation to verify Lantrip had unlimited access to the $1,200,000 in trust accounts which were represented to be on deposit with William Ravkind. SCR 149:Normile Aff. 11. This process of obtaining documents through an independent mortgage company such as Metropolitan Mortgage was a typical process for residential loan applications. As part of that process the mortgage company who was submitting the loan would obtain the necessary verification of assets. The loan submitted on behalf of Lantrip did not deviate from Ms. Normile's normal practice. SCR :Normile Aff. 3, 7 and 8. Lantrip defaulted on the Promissory Note and on November 4, 2008, Bank of Texas foreclosed on the deed of trust. On the date of foreclosure the total payoff on the note was $1,972, SCR 96:Smith Aff. 5. Bank of Texas then filed suit in the 193 rd Judicial District Court against Lantrip for the deficiency on the note. Beginning in April 2008, Lantrip submitted a series of draw requests which were supported by false invoices. The false invoices diverted $651, in loan proceeds to Lantrip, her daughter Natalie Frazier and her sister Dora Nixon. CR None of these BRIEF OF APPELLANT PAGE 3 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

15 funds went toward material, services or labor for the construction of improvements on the Property. It was also discovered that the documents supporting Lantrip's finances were false. In discovery William Ravkind was deposed regarding the Verification of Deposit signed by him. Ravkind testified Cindy Lantrip was a client "on a very limited basis" and solely for the purpose of the Verification of Deposit. CR 177:Ravkind 5:4-8. At that time he testified that the Verification of Deposit was signed by him. CR 178:Ravkind 7: William Ravkind admitted, contrary to the Verification of Deposit, he was not the depository of any account. SCR 243:Ravkind 50: In the investigation of the Glenny Letters, Glenny's law office produced an affidavit from his legal assistant representing that the letters were prepared after conference with William Ravkind, in which he made the representation that Lantrip had full access to "all of her trust accounts." The affidavit further stated that "The Glenny Law Firm does not have any other information on Ms. Lantrip or at no time did our firm have any contact with Ms. Lantrip or have any other information or file regarding this matter." CR and SCR As a result the Bank of Texas filed Plaintiff's First Amended Petition, alleging claims of negligent misrepresentation against Clint M. Glenny, II. 2 Yolanda Dominguez, who is identified as the affiant, has since denied she signed the affidavit or has any knowledge of the activities recited in the affidavit. However, Glenny's other legal assistant Kim Wiley has testified that while she assisted in drafting the letters and affidavit, the affidavit was signed by Ms. Dominguez who participated in the activity identified. SCR 257:Kim Wiley: Kevin Wiley testified it was "Yolanda" who was on the telephone call which led to the Glenny Letters. SCR 231, 233:Kevin Wiley 47:13-25, 49: BRIEF OF APPELLANT PAGE 4 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

16 II. SUMMARY OF ARGUMENT Appellee Clint M. Glenny, II filed a summary judgment motion which was in part a no-evidence summary judgment and in part a traditional summary judgment. Glenny's summary judgment argument can be summarized into the three (3) points. The first is that Glenny cannot be liable because he did not sign the Glenny Letters and he did not authorize anyone to sign them for him. The second is that the claim for negligent misrepresentation is barred by the economic loss rule. The last is that the Bank of Texas could not have justifiably relied upon the misrepresentations in the Glenny Letters. The Bank of Texas contends that Glenny's first point required a verified denial pursuant to TEX. R. CIV. P. 93(7) and the economic loss rule is a plea in avoidance that must be pled pursuant to TEX. R. CIV. P. 94. Glenny failed to plead the matter and the Court erred in granting summary judgment on these points. Furthermore, his no-evidence motion fails because there was more than a scintilla of evidence that the creation and signing of the letters were within the general authority of his paralegals in providing legal services to his clients. The actions were not utterly unrelated to his employee's duties. Glenny's no-evidence motion also fails because the economic loss rule does not apply to a tort claim where there is no contractual privity between the parties. The liability arises soley from tort. Even If the economic loss rule applies there is more than a scintilla of evidence of damages other than the benefit of the bargain relating to a contract. BRIEF OF APPELLANT PAGE 5 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

17 As to his traditional motion for summary judgment Glenny failed to establish as a matter of law that he was not vicariously liable for the misrepresentations ; that the creation of the letters were outside the course and scope of his paralegals' employment. Even if Glenny did meet his burden, the Bank of Texas met its burden establishing there are genuine issues of material fact whether Glenny was vicariously liable. Lastly, Glenny also failed to meet his burden to establish as a matter of law that Bank of Texas could not and did not justifiably rely on the Glenny Letters. Even if Glenny did meet his burden, the Bank of Texas met its burden, establishing there are genuine issues of material fact whether it justifiably relied upon the letters. The Trial Court erred in granting summary judgment. Every argument, issue and grounds asserted by Glenny was met with probative and significant evidence contradicting his allegations. Questions of fact, material and disputed, remain. III. ARGUMENT A. Standard of Review This case was decided by summary judgment. Glenny's motion was both a noevidence motion pursuant to TEX. R. CIV. P. 166a(i) and a traditional motion for summary judgment. The propriety of a summary judgment is a question of law therefore the trial court's decision is reviewed de novo. Tex. Municipal Power Agency v. Pub. Utility Com. of Texas, 253 S.W.3d 184, 192 (Tex. 2007); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). BRIEF OF APPELLANT PAGE 6 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

18 1. No-Evidence Motion for Summary Judgment. A no-evidence summary judgment is reviewed under the same standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Pursuant to TEX. R. CIV. P. 166a(i) a party may move for summary judgment on the grounds that there is noevidence of one or more essential elements of the claim upon which the adverse party carries the burden of proof at trial. Id.; Forney 921 Lot Dev. Part. I, L.P. v. Paul Taylor Homes, Ltd., 349 S.W.3d 258, 266 (Tex. App. Dallas 2011, pet. filed). Such a motion must specifically identify the elements on which it contends there is no evidence. Howard v. The Burlington Ins. Co., 347 S.W.3d 783, 788 (Tex. App. Dallas, 2011, no pet.). However, a defendant cannot premise a no-evidence motion for summary judgment on an affirmative defense, as at trial the defendant carries the burden of proof on the defense. Forney 921, 349 S.W.3d at 266. A no-evidence summary judgment can be sustained on appeal only when "(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact." Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997), quoted in, King Ranch, Inc. v. Chapman, 118 S.W.3d at 751. Thus, a no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX. R. CIV. P. 166a(i); Howard, 347 S.W.3d at 789. As stated by the Texas Supreme Court: BRIEF OF APPELLANT PAGE 7 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

19 "The test for the application of this no-evidence/scintilla rule is if reasonable minds cannot differ from the conclusion that the evidence offered to support the existence of a vital fact lacks probative force, it will be held to be the legal equivalent of no-evidence. However, there is some evidence, more than a scintilla, if the evidence furnishes some reasonable basis for differing conclusions by reasonable minds as to the existence of the vital fact." Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). However, the nonmovant is not required to marshall its evidence. It only needs to point out some evidence that raises a fact issue. Johnson v. Brewer & Pritchard, 73 S.W.3d 193, 207 (Tex. 2002). 2. Traditional Motion for Summary Judgment. In moving for a traditional summary judgment a defendant, such as Glenny, carries the burden of conclusively negating at least one essential element of the plaintiff's cause of action as a matter of law or pleading or conclusively establishing all the essential elements of an affirmative defense. Sci. Spectrum v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Howard, 347 S.W.3d at 789. It is only after the defendant meets this burden that the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. Id.; Forney 921, 349 S.W.3d at 266. In deciding whether a genuine issue of material fact exists all evidence favorable to the nonmovant is to be taken as true and every reasonable inference must be "indulged in favor of the nonmovant and any doubts resolved in its favor." Furmanite Worldwide, Inc. v. NextCorp., Ltd., 339 S.W.3d 326, 331 (Tex. App. Dallas- 2011, no pet.). See also, City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005); Nixon v. Mr. Property Mgmt Co., 690 S.W.2d 546, 549 (Tex. 1985). A genuine issue of material fact is one in which the dispute over the fact might affect the outcome under the substantive law. BRIEF OF APPELLANT PAGE 8 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

20 The dispute is genuine if the evidence shows more than a metaphysical doubt. Moore v. KMart Corp., 981 S.W.2d 266, 269 (Tex. App. San Antonio 1998, pet. denied). In both traditional and no-evidence summary judgment motions, the court is required to review all the evidence and the entire record "in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." Forney 921, 349 S.W.3d at 266. B. Issues Presented. Issue No. 1: Issue No. 1A: The Trial Court Erred in Granting Defendant's No-Evidence Motion for Summary Judgment. The Trial Court Erred in Granting Summary Judgment When the Defendant Not Only Failed to Plead the Defenses, Defendant Failed to Make the Required Verified Denial. Bank of Texas' sole claim against Glenny is negligent misrepresentation. CR 36 Defendant's no-evidence motion identifies three (3) grounds: a. No-evidence Representation by Defendant; b. No-Evidence Economic Loss (Distinct Injury); and c. No-Evidence That it was within Ms. Wiley's general authority as an employee to sign documents without Mr. Glenny's knowledge or consent. The first and third grounds are merely expansions of the same argument; that the Glenny Letters were not executed by Glenny or by his authority. In this briefing they are treated together. The representations at issue are the two (2) letters on his law firm's letterhead, prepared by his law firm, prepared at the request of his client, and purporting to bear his signature, the Glenny Letters. The remaining ground was that the Bank of Texas' BRIEF OF APPELLANT PAGE 9 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

21 claim was barred by the economic loss rule. Neither defense was pled. As affirmative defenses, a no-evidence motion for summary judgment on these grounds should not have been entertained or granted. Forney 921, 349 S.W.3d at 266. ("A party may not file a noevidence summary judgment motion on an affirmative defense, as at trial he would have the burden to prove the matter."). As discussed above Bank of Texas filed its First Amended Petition asserting a claim against Glenny on July 23, CR 26. Glenny filed his Third Amended Answer on December 7, CR 234. Glenny had until 90 days before the fifth trial setting of October 4, 2011, to amend his answer, assert affirmative defenses, or make any other plea in avoidance. CR 614. No further amendments were filed before the Court ordered deadline and on August 12, 2011, Glenny filed the motion for summary judgment which is the subject of this appeal. The no-evidence portion of the summary judgment and part of the traditional motion rely on matters constituting pleas in avoidance or affirmative defenses required to be pled. TEX. R. CIV. P. 94. It is a basic accepted principle that the pleadings, the plaintiff's petition and the defendant's answer determine the issues before the Court. Any motion for summary judgment must be supported by pleadings. Unpleaded causes of action cannot support summary judgment. DeBord v. Muller, 446 S.W.2d 299, 301 (Tex. 1969). "A party may not be granted relief in the absence of pleadings to support that relief." Crowson v. Wakeham, Cause No CV, 1996 Tex. App. LEXIS 2158*18-19 (Tex. App. Dallas May 29, 1996, no writ hist.); Jobe v. Lapidus, 874 S.W.2d 764, 765 (Tex. App. Dallas 1994, writ denied). Though Bank of Texas raised the lack of pleading in its response BRIEF OF APPELLANT PAGE 10 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

22 (CR 644) Glenny did not move the trial court for leave to file an amended answer. TEX. R. CIV. P. 63. This suit is based on the representations in the two (2) Glenny Letters. The sole basis for Glenny's argument that he made no representation is the claim that he did not sign the letters and that no one was authorized to sign the letters for him. This is an affirmative defense required to be pled by a verified pleading. TEX. R. CIV. P. 93(7) requires any denial of the execution by a party or by his authority of any instrument in writing, be made by a pleading verified by affidavit. In the absence of a verified plea of denial a defendant cannot raise a lack of authority. Methodist Hosp. of Dallas v. Corp. Communicators, Inc., 806 S.W. 2d 879, (Tex. App. Dallas 1991, writ denied). Absent a verified denial the Court could not consider Glenny's claim that either he did not sign the Glenny Letters or that they were signed without authority. Id. Because Glenny failed to make the sworn plea Bank of Texas was not required to prove that Kim Wiley, or anyone had the authority to sign for Glenny. Andrews v. Sullivan, 76 S.W.3d 702, 707 (Tex. App. Corpus Christi 2002, no pet.). Glenny's second basis for its no-evidence motion is that the claims are barred by the economic loss rule. Bank of Texas contends, in the circumstance of this suit, reliance on the economic loss rule is a "matter constituting an avoidance" which must be pled pursuant to TEX. R. CIV. P The Texas Supreme Court has described a matter which constitutes an avoidance as: 3 Contra: Tarrant County Hosp. Dist. v. GE Automation Services, Inc., 156 S.W.3d 885, 895 (Tex. App. Fort Worth 2005, no pet.). BRIEF OF APPELLANT PAGE 11 \\Bdnt-fs1\wpprolaw\ \226906_3.doc

In The Court of Appeals Fifth District of Texas at Dallas OPINION

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