Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Moyal v. Security Service Federal Credit Union

Court of Appeals of Texas, Fifth District, Dallas

August 26, 2019

MAXIM N. MOYAL AND DANIEL I. MOYAL, Appellants
v.
SECURITY SERVICE FEDERAL CREDIT UNION, Appellee

          On Appeal from the 14th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-16-15059

          Before Justices Schenck, Osborne, and Reichek

          MEMORANDUM OPINION

          LESLIE OSBORNE JUSTICE

         Maxim 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.[1] 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.

         I. PROCEDURAL BACKGROUND

         On 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.

         On 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.

         II. STANDARD OF REVIEW

         An 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).

         III. BREACH OF CONTRACT AND STATUTE OF FRAUDS

         In 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 partial performance.

         The 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 breach-of-contract claims.

          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.[2] 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.