Court of Appeals of Texas, Fifth District, Dallas
On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-11-01142-I
Before Justices O'Neill, Myers, and Brown
LANA MYERS JUSTICE
Brian Vodicka and Steven Aubrey appeal the summary judgment in favor of North American Title Company. Appellants bring three issues contending the trial court erred by (1) granting appellee's motion for summary judgment, (2) striking all of appellants' summary judgment evidence, and (3) denying appellants' motion for new trial based on newly discovered evidence. We affirm the trial court's judgment.
In 2007, J & T Development Group, L.P. borrowed $4 million for a real estate development in Manor, Texas. Creative Financial Solutions acted as payment agent for a pool of individuals, including Vodicka, who provided the money for the loan. Appellee was the escrow agent for the transaction.
On January 31, 2007, Vodicka and his wife wired $415, 000 to appellee for inclusion in the loan. The loan was secured by a second or third-position lien. The portion of the loan including Vodicka's contribution closed on February 1, 2007. On June 21, 2007, Aubrey purchased Greg Lahr's interest in the loan for $500, 000. Lahr, at Aubrey's instruction, then assigned his interest in the loan to Vodicka. The next year, J & T defaulted on its loans. The lenders with superior liens foreclosed, and appellants lost their entire investment.
On January 31, 2011, appellants filed suit against appellee, alleging appellee breached its fiduciary duty as an escrow agent to appellants; appellee was negligent, grossly negligent, and negligent per se; appellee violated numerous regulations and statutes; and appellee conspired to commit fraud. Appellee moved for summary judgment, asserting appellants had no evidence to support certain elements of their causes of action. Appellants responded, attaching an expert affidavit, a deposition, a "single ledger balance report, " and allegations of the Texas Department of Insurance against appellee as summary judgment evidence in support of appellants' claims. Appellee objected to all of appellants' summary judgment evidence. The trial court sustained all of appellee's objections to appellants' summary judgment evidence and granted appellee's motion for summary judgment.
SUMMARY JUDGMENT EVIDENCE
In their second issue, appellants contend the trial court erred by striking appellants' summary judgment evidence. Appellants' summary judgment evidence consisted of the affidavit of Steven Lawrence, a single ledger balance report, the deposition of Lesley Williams, and allegations of the Texas Department of Insurance.
On appeal, appellants do not challenge the trial court's order sustaining appellee's objections to Williams's deposition and the Texas Department of Insurance's allegations. Any potential error from the trial court's sustaining appellants' objections to these exhibits is waived. See San Jacinto River Auth. v. Duke, 783 S.W.2d 209, 209–10 (Tex. 1990) (per curiam) ("grounds of error not asserted by points of error or argument in the court of appeals are waived"); Smith v. Mohawk Mills, Inc., 260 S.W.3d 672, 674 (Tex. App.—Dallas 2008, no pet.) (failure to raise complaint in court of appeals about trial court's ruling waives any potential error). Therefore, we consider only whether the trial court erred by striking Lawrence's affidavit and the single ledger balance report.
We review the trial court's admission or exclusion of summary judgment evidence under an abuse of discretion standard. Harris v. Showcase Chevrolet, 231 S.W.3d 559, 561 (Tex. App.—Dallas 2007, no pet.). A trial court abuses its discretion only when it acts arbitrarily or unreasonably, that is, when it acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241–42 (Tex. 1985); Medicus, Ins. Co. v. Todd, 400 S.W.3d 670, 681 (Tex. App.—Dallas 2013, no pet.) (citing Downer).
Single Ledger Balance Report
Early in the litigation, the trial court signed a protective order to preserve the confidentiality of any documents marked "Confidential." The order required that any papers filed with the trial court that were marked "Confidential" be filed under seal. Attached to appellants' response to the motion for summary judgment were three pages comprising the "single ledger balance report" marked "Confidential." However, appellants did not file the report under seal. On Thursday, July 19, 2012, appellee filed its reply to appellants' response and objected to the single ledger balance report on the ground that it was marked "Confidential" but was not filed under seal as required by the protective order. The summary judgment hearing was the following Monday, July 23, 2012. At the hearing, the trial court stated the submission of the single ledger balance report was in violation of the protective order and that the report was already on the internet. Appellants stated they would file a motion to seal the single ledger balance report "and pull it back." The court stated, "I would suggest pronto. I'm denying that motion. But that needs to be done immediately." Two days later, on July 25, 2012, appellants filed a motion to seal the record including the single ledger balance report and posted the required notice for sealing the records. See Tex. R. Civ. P. 76a(3). Rule 76a(4) provides that a hearing on the motion to seal may not be held less than fourteen days after the filing of the motion to seal and the posting of the notice. See Tex. R. Civ. P. 76a(4). August 8, 2012 was the fourteenth day after the filing of the motion and posting of the notice. On August 8, 2012, the trial court signed the motion for summary judgment and sustained all of appellee's objections to appellants' summary judgment evidence, presumably including the objection to the single ledger balance report's not being filed under seal. Appellants assert that in this situation, the trial court should not have sustained the objection to the report. Nothing in the record shows appellants had requested a hearing date for the motion on or near August 8, 2012. Appellants assert that the trial court's direction to appellants to file a motion to seal constituted an oral granting of leave to cure appellee's objections. However, the trial court's written order sustained appellee's objections. ...