Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
On appeal from the County Court at Law No. 1 of Cameron County, Texas.
Before Justices Rodriguez, Garza, and Perkes
NELDAV. RODRIGUEZ Justice
Appellants Roberto and Osbelia Morales appeal a summary judgment entered in favor of appellees First National Bank and Carlos A. Rodriguez (collectively, the Bank). By a single issue, the Moraleses contend that the trial court erred in granting the Bank's no-evidence motion for summary judgment. See Tex. R. Civ. P. 166a(i). We affirm.
In 2007, the Moraleses entered into a real estate transaction with Bryan Robinson. In connection with the transaction, an attorney wrote a $23, 668.56 check from her trust account. She made the check payable to the Moraleses and indicated in the memo of the check that it was sales proceeds. It is undisputed that the check was drawn on First National Bank and that someone left it at the bank. The Moraleses allege that Rodriguez informed them that they could pick up the check. They further claim that they went to the bank and, in reliance on a promise by Rodriguez's secretary that the check would be cashed, endorsed the check. The Moraleses also allege that Rodriguez's secretary took the check to a bank teller but returned and told them the check would not be cashed. Finally, the Moraleses assert that the check was not returned to them; instead, it was given to Robinson.
The Moraleses filed suit claiming that the Bank's conduct constituted fraud. The Bank filed a motion for no-evidence summary judgment on the basis that there was no evidence of one or more of the elements of fraud, specifically that "there [was] no evidence that at the time an employee of First National Bank allegedly promised to cash the check . . ., the employee intended not to fulfill the promise." In response, Roberto filed a document titled "Notice of filing deposition excerpts in opposition to First National Bank and Carlos A. Rodriguez's motion for new [sic] evidence summary judgment."Without more, Roberto set out that he was filing the following with his notice: (1) "excerpts of his [deposition [t]ranscript of January 11, 2012, specifically [p]ages 40-46 to refute the no-evidence motion"; (2) a copy of Batto v. Gafford, 119 S.W.3d 346, 348 (Tex. App.—Waco 2003, no pet.) (identifying the elements of fraud and the standard of review for the granting of a no-evidence motion for summary judgment); and (3) Roberto's complete deposition transcript, "along with said excerpts." The trial court granted the Bank's motion, and this appeal followed.
II. Applicable Law and Standard of Review
To recover on an action for fraud, the plaintiff must prove that (1) the defendant made a material representation that was false; (2) the defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended to induce the plaintiff to act upon that representation; and (4) the plaintiff actually and justifiably relied upon the representation and thereby suffered injury. Ernst & Young, LLP. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001). A promise to do an act in the future is actionable fraud when made with the intention, design, and purpose of deceiving, and with no intention of performing the act. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986).
The trial court must grant a no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of summary judgment evidence to raise a genuine issue of material fact on the challenged elements. Tex.R.Civ.P. 166a(i); Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). A nonmovant produces more than a scintilla of evidence when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004); Marsaglia v. Univ. of Tex., El Paso, 22 S.W.3d 1, 4 (Tex. App.—El Paso 1999, pet. denied). A nonmovant produces no more than a scintilla when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact. Forbes, Inc., 124 S.W.3d at 172; Marsaglia, 22 S.W.3d at 4.
"To defeat a motion made under paragraph (i), the respondent is not required to marshal [his] proof; [his] response need only point out evidence that raises a fact issue on the challenged elements." Tex.R.Civ.P. 166a(i), cmt 1997. Any issues the nonmovant contends avoid the movant's entitlement to summary judgment must be expressly presented by written answer to the motion and are not expressly presented by mere reference to summary judgment evidence. McConnell v. Southslde Indep. Sch. Dlst., 858 S.W.2d 337, 341 (Tex. 1993). Attaching entire documents and depositions to a response to a motion for summary judgment and referencing them only generally does not relieve the party of the need to point out to the trial court where in the documents the issues set forth in the response are raised. Arrendondo v. Rodriguez, 198 S.W.3d 236, 238-39 (Tex. App.—San Antonio 2006, no pet.).
We review summary judgments de novo. Alejandro v. Bell, 84 S.W.3d 383, 390 (Tex. App.—Corpus Christi 2002, no pet.). A no-evidence summary judgment is equivalent to a pretrial directed verdict, and we apply the same legal sufficiency standard on review. Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.—Corpus Christi 1999, pet. denied). We must consider all the evidence in the light most favorable to the party against whom the trial court rendered summary judgment, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Timpte Indus, v. Gish, 286 S.W.3d 306, 310 (Tex. 2009); see City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We will affirm a no-evidence summary judgment if the record shows one of the following: (1) there is no evidence on the challenged element; (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove the challenged element; (3) the evidence offered to prove the challenged element is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the challenged element. City of Keller, 168 S.W.3d at 810; Patel v. City of Everman, 179 S.W.3d 1, 17 (Tex. App.—Tyler 2004, pet. denied); Taylor-Made Hose, Inc. v. Wilkerson, 21 S.W.3d 484, 488 (Tex. App.—San Antonio 2000, pet. denied) (op. on rehr'g en banc).
By their sole issue, the Moraleses contend that "[tjhere existed sufficient evidence of fraud by [the Bank] in the [trial cjourt file to preclude the granting of the [n]o[-][e]vidence [sjummary [jjudgment." They assert that the trial court erred in granting the Bank's motion "because the sworn testimony of Roberto Morales in his filed deposition of January 11, 2012 created a genuine issue of material ...