Court of Appeals of Texas, Fifth District, Dallas
MAXIM N. MOYAL AND DANIEL I. MOYAL, Appellants
SECURITY SERVICE FEDERAL CREDIT UNION, Appellee
Appeal from the 14th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-16-15059
Justices Schenck, Osborne, and Reichek
N. Moyal and Daniel I. Moyal appeal the trial court's
final summary judgment rendering a take-nothing judgment on
their claims against Security Service Federal Credit Union
(Credit Union). In three issues, the Moyals argue the trial
court erred when it granted summary judgment on: (1) the
Credit Union's affirmative defense of statute of frauds;
(2) their tort claims based on the Credit Union's
assertion that those claims were barred by the economic loss
doctrine; and (3) their claims for negligence, negligent
misrepresentation, constructive fraud or failure to disclose,
and fraud. We conclude the Moyals have not shown that
the trial court erred by granting the Credit Union's
motion for summary judgment. The trial court's final
summary judgment is affirmed.
October 24, 2017, the Moyals filed their first amended
petition alleging claims against the Credit Union for
constructive fraud or failure to disclose, breach of
contract, negligence, negligent misrepresentation, and fraud.
On February 16, 2018, the Credit Union filed its second
amended answer generally denying the allegations and
asserting several affirmative defenses, including the statute
of frauds, and the economic loss rule.
March 21, 2018, the Credit Union filed its motion for summary
judgment seeking: (1) no-evidence summary judgment on the
Moyals' claims for breach of contract, negligent
misrepresentation, gross negligence, fraud, constructive
fraud or failure to disclose, exemplary damages, and malice;
and (2) traditional summary judgment on its (a) affirmative
defense of statute of frauds as to the Moyals' breach of
contract claims and (b) all of the Moyals' tort claims on
the basis that the tort claims arise from the same alleged
contract that formed the basis of their breach-of-contract
claims, so those claims are barred by the economic loss rule.
On April 13, 2018, the Moyals filed their response to the
motion for summary judgment. On April 20, 2018, the trial
court signed the final summary judgment, granting the Credit
Union's motion for summary judgment and ordering that the
Moyals take nothing on their claims.
STANDARD OF REVIEW
appellate court reviews the grant of summary judgment de
novo. See Masterson v. Diocese of Nw. Tex., 422
S.W.3d 594, 607 (Tex. 2013). When reviewing both traditional
and no-evidence summary judgments, an appellate court
considers the evidence in the light most favorable to the
nonmovant. See Smith v O'Donnell, 288 S.W.3d
417, 424 (Tex. 2009); 20801, Inc. v. Parker, 249
S.W.3d 392, 399 (Tex. 2008). When a party has moved for
summary judgment on both traditional and no-evidence grounds,
an appellate court typically first reviews the propriety of
the summary judgment under the no-evidence standard.
See Tex. R. Civ. P. 166(a)(i); Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Kalyanaram
v. Univ. of Tex. Sys., 230 S.W.3d 921, 925 (Tex.
App.-Dallas 2007, pet. denied). If a trial court's order
does not specify the grounds for its summary judgment, an
appellate court must affirm the summary judgment if any of
the theories presented to the trial court and preserved for
appellate review are meritorious. See Provident Life
& Accident Ins. v. Knott, 128 S.W.3d 211, 216 (Tex.
2003); Malooly Bros., Inc. v. Napier, 461 S.W.2d
119, 121 (Tex. 1970).
BREACH OF CONTRACT AND STATUTE OF FRAUDS
issue one, the Moyals argue the trial court erred when it
granted the Credit Union's traditional motion for summary
judgment on its affirmative defense of the statute of frauds.
The Credit Union responds that the Moyals did not meet their
burden to present evidence of a valid contract and the breach
of that contract. Also, the Credit Union argues that the
Moyals failed to raise an issue of material fact as to its
affirmative defense and the Moyals' counter-defense of
Credit Union sought summary judgment on the Moyals'
breach-of-contract claims on two separate bases. First, the
Credit Union sought no-evidence summary judgment as to two
elements of the Moyals' breach-of-contract claims, i.e.,
the existence of a contract and breach of that contract by
the Credit Union. Second, the Credit Union sought traditional
summary judgment on its affirmative defense of the statute of
frauds. In their response to the motion for summary judgment,
the Moyals stated "[t]he only issue [the Credit Union]
appears to urge [sic] a no-evidence point is [the Credit
Union's] [summary judgment challenge to their claims for
exemplary damages]." Consistent with that statement,
their response does not address the Credit Union's
no-evidence motion for summary judgment on their
Further, on appeal, the Moyals were required to challenge
both the traditional and no-evidence grounds on which summary
judgment could have been granted as to their
breach-of-contract claims. See Moore v. Panini Am.,
Inc., No. 05-15-01555-CV, 2016 WL 7163899, at *4 (Tex.
App.-Dallas Nov. 7, 2016, no pet.) (mem. op.). However, the
Moyals do not challenge the no-evidence summary
judgment. It is well settled that we must affirm a
summary judgment if the appellant fails to challenge every
independent ground on which the judgment might be based.
See Malooly, 461 S.W.2d at 121; see also St.
John Missionary Baptist Church v. Flakes, 547 S.W.3d
311, 313-18 (Tex. App.-Dallas 2018, pet. pending) (en banc)
(applying rule to a motion to dismiss and plea to the
jurisdiction). Because the Moyals ...