American National Insurance, American National Investment Accounts, Inc., SM&R Investments, Inc., American National Propert and Casualty Company, Standard Life and Accident Insurance Company, Farm Family Life Insurance Company, Farm Family Casualty Ins. v. Seutsche Bank Securites, Inc. F'ka' Deutsche Banc Alex. Braown Inc., and Deutsche Banc Alex. Brown

• Court: Court of Appeals of Texas
• Decided: June 4, 2009
• Docket: 01-08-00791-CV
• Status: Published

Opinion

Opinion issued June 4, 2009

In The

Court of Appeals

For The

First District of Texas

NO. 01-08-00791-CV

AMERICAN NATIONAL INSURANCE COMPANY;

AMERICAN NATIONAL INVESTMENT ACCOUNTS, INC; SM&R INVESTMENTS, INC.; AMERICAN NATIONAL PROPERTY AND CASUALTY COMPANY; STANDARD LIFE AND ACCIDENT INSURANCE COMPANY; FARM FAMILY CASUALTY INSURANCE COMPANY; AND NATIONAL WESTERN LIFE INSURANCE COMPANY, Appellants

V.

DEUTSCHE BANK SECURITIES (F/K/A DEUTSCHE BANK ALEX BROWN, INC. AND DEUTSCHE BANK ALEX BROWN), Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2006-35256

MEMORANDUM OPINION

Appellants, plaintiffs in trial court, American National Insurance Company; American National Investment Accounts, Inc; SM&R Investments, Inc.; American National Property and Casualty Company; Standard Life and Accident Insurance Company; Farm Family Casualty Insurance Company; and National Western Life Insurance Company (the companies) bring this appeal to challenge a summary judgment rendered in favor of appellee, Deutsche Bank Securities, f/k/a Deutsche Bank Alex Brown, Inc. and Deutsche Bank Alex Brown (Deutsche Bank). ⁽¹⁾ The companies acknowledge that the trial court rendered summary judgment against them "on all causes of action." Their single issue nonetheless asks only the question, "Should the limitation period for the tort of conspiracy to commit fraud be the same as the underlying tort?" The companies do not assert a global challenge to the trial court's rendering summary judgment in favor of Deutsche Bank. Likewise, the companies do not challenge alternative grounds urged by Deutsche Bank, on which the trial court may have relied in rendering summary judgment. These circumstances compel that we affirm the trial court's judgment without addressing the merits.

Underlying Facts and Procedural History

The companies are institutional investors who seek relief from Deutsche Bank relating to purchases of securities of the former Enron Corporation. The companies sued Deutsche Bank, seeking damages, including punitive damages, and equitable relief, or both, claiming that Deutsche Bank violated article 581-33 of the Texas Securities Act, see Tex. Rev. Civ. Stat. Ann. art. 581-33 (Vernon 1964 & Supp. 2008) and committed statutory fraud in stock transactions proscribed by Tex. Bus. & Comm. Code Ann. § 27.01 (Vernon 2009). The companies also sought relief for common law fraud and civil conspiracy and claimed that Deutsche Bank fraudulently concealed its tortious conduct.

Deutsche Bank moved for summary judgment on the following grounds:

1. Claims by two of the companies, relating to 1992 and 1993 purchases, required dismissal because the claims predate the alleged fraud.

2. Texas common law does not recognize claims for securities "holder" fraud.

3. Limitations bars the civil conspiracy claims.

4. The claims for violations of the Blue Sky Laws cannot succeed.

5 The claims for statutory fraud cannot succeed.

6. The claims for common-law fraud cannot succeed because of lack of evidence of reliance.

In addition to their response to Deutsche Bank's motion, the companies also filed a motion for partial summary judgment on the issue of the limitations bar for their civil conspiracy claims. The trial court conducted an oral hearing to consider the motion among other matters and rendered summary judgment against the companies and in favor of Deutsche Bank. ⁽²⁾ The trial court did not deny the companies' motion for partial summary judgment and did not state the ground or grounds on which it based its ruling.

Standard of Review

We review summary judgments de novo and according to well-settled standards. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A defendant who moves for traditional summary judgment on the plaintiff's claims must conclusively disprove at least one element of each of the plaintiff's causes of action. Little v. Tex. Dep't of Criminal Justice, 148 S.W.3d 374, 381 (Tex. 2004). A defendant who moves for traditional summary judgment on an affirmative defense must conclusively establish all elements of that affirmative defense. Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).

When, as here, a summary judgment does not specify the grounds on which it was granted, the appealing party must demonstrate on appeal that none of the proposed grounds is sufficient to support the judgment. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2001); Price v. Divita, 224 S.W.3d 331, 336 (Tex. App.--Houston [1st Dist.] 2006, pet. denied); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.--Houston [1st Dist.] 2002, no pet.). We may affirm on any ground offered that has merit and was preserved for review. FM Props. Operating Co., 22 S.W.3d 868, 872-73 (Tex. 2001) (stating general rule); see Price, 224 S.W.3d at 336 (applying rule to Tex. R. Civ. P. 166a(i) motion) (citing State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993) (applying rule to Tex. R. Civ. P. 166a(c) motion)).

When the appealing party does not assert a broad challenge to rendition of the adverse summary judgment and does not challenge a ground on which the movant asserted a right to summary judgment in the trial court, we must affirm--without considering whether the summary judgment was rendered properly or improperly on the unchallenged ground. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970) (stating that summary judgment "must stand," because it may have been based on a ground not specifically challenged by the plaintiff" and because "there was no general assignment that the trial court erred in granting summary judgment") (supporting citations omitted); ⁽³⁾ Vawter v. Garvey, 786 S.W.2d 263, 264 (Tex. 1990) (proscribing reversal of summary judgment without properly assigned error); see also McCoy v. Rogers, 240 S.W.3d 267, 272 (Tex. App.--Houston [1st Dist.] 2007, pet. denied) (holding that failure to assert challenge and argument and authorities to defeat alternative grounds on which prevailing party relied in moving for no-evidence summary judgment precluded review of alternative grounds, despite broad Malooly challenge on appeal) (citing Malooly, 461 S.W.2d at 121 and Maranatha Temple, Inc. v. Enter. Prods. Co., 893 S.W.2d 92, 106 (Tex. App.--Houston [1st Dist.] 1994, writ denied)).

Lack of Challenge to All Possible Grounds Bars Review of Merits

The companies' single issue on appeal challenges whether the two-year statute of limitations bars their civil conspiracy claims. Yet, the limitations bar to the companies' civil conspiracy claims was but one of six grounds on which Deutsche Bank relied in moving for summary judgment. Because the summary judgment does not recite the basis of the trial court's reasoning in rendering judgment in favor of Deutsche Bank, the limitations bar is also but one of six possible grounds on which the trial court may have relied in rendering summary judgment.

Under the settled law that controls this case, we may not reverse a judgment for a reason not raised in a point of error. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Vawter, 786 S.W.2d at 264 (applying principle in context of summary judgment); McCoy, 240 S.W.3d at 272. Similarly, we may not grant relief unless the party asserting error provides argument and supporting authorities. Tex. R. App. P. 38.1(e), (h); see McCoy, 240 S.W.3d at 272; Maranatha Temple, Inc., 893 S.W.2d at 106 (applying rule 74(f) of former Rules of Appellate Procedure).

As the nonmovants seeking to set aside a summary judgment that did not state any grounds to support its rendition, the companies' burden on appeal is to demonstrate that none of the arguments on which Deutsche Bank relied supports the judgment rendered. See FM Props. Operating Co., 22 S.W.3d at 872-73; McCoy, 240 S.W.3d at 272; Price, 224 S.W.3d at 336. But the companies challenge only one of the six possible grounds on which Deutsche Bank relied, and on which the trial court may have relied in rendering summary judgment. In addition, and in contrast to the appealing party in McCoy, 240 S.W.3d at 272, the companies have not asserted a broad, global challenge contending that the trial court erred by rendering summary judgment. Accordingly, this Court has no authority to address the alternative grounds on which Deutsche Bank relied in moving for summary judgment. See Malooly Bros., 461 S.W.2d at 121.

Under the circumstances presented by the companies' brief and the summary-judgment record, we must affirm, without regard to whether the trial court's ruling was correct or erroneous. See FM Props. Operating, 22 S.W.3d at 872-73; Malooly Bros., 461 S.W.2d at 121; Kipp v. Dyncorp Tech. Servs., LLC, No. 01-06-00906-CV, 2007 WL 3293719, at *4-5 (Tex. App.--Houston [1st Dist.] Nov. 8, 2007, no pet.) (mem. op.); see also Vawter, 786 S.W.2d at 264 (proscribing reversal of summary judgment without properly assigned error).

Conclusion

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Taft and Sharp.

1. The companies initially sued the following entities in addition to Deutsche Bank: Credit Suisse First Boston, Inc.; Credit Suisse First Boston, LLC; Credit Suisse First Boston (USA), Inc.; and Pershing LLC

. Their live pleadings, however, reflect that they abandoned their claims against those entities and sought relief only from Deutsche Bank.

2. The reporter's record of the hearing clarifies that the companies added the claim of fraudulent concealment to their live amended petition in order to avoid statutory caps that might apply to the companies' existing claims for statutory and common-law fraud, rather than to allege a new claim in addition to those claims. Because the fraudulent concealment claim thus encompassed the companies' existing statutory and common-law fraud claims, the trial court did not grant more relief than requested in rendering summary judgment in favor of Deutsche Bank. See Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476, 487 (Tex. App.--Houston [1st Dist.] 2007, pet. denied).

3. When the appealing party brings a general point of error contending that the trial court erred in granting the motion for summary judgment, this authorizes the party against whom judgment was rendered to challenge all possible grounds on which the trial court might have relied in rendering judgment. See Plexchem Int'l, Inc. v. Harris County Appraisal Dist., 922 S.W.2d 930, 931 (Tex. 1996); Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).