InteliTrac, Inc. v. UMB Fin. Corp., UMB Bank, N.A., Zach Fee, Nick Arthachinda, Kevin Von Atzigen

• Court: Court of Appeals of Texas
• Decided: March 19, 2024
• Docket: 05-22-00635-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed March 19, 2024

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00635-CV

INTELITRAC, INC., Appellant V. UMB FINANCIAL CORPORATION, UMB BANK, N.A., ZACH FEE, NICK ARTHACHINDA, AND KEVIN VON ATZIGEN, Appellees

On Appeal from the 95th District Court Dallas County, Texas Trial Court Cause No. DC-17-00035

MEMORANDUM OPINION Before Chief Justice Burns, Justice Carlyle, and Justice Kennedy Opinion by Chief Justice Burns

Appellant InteliTrac, Inc. appeals from the trial court’s final judgment in favor

of appellees UMB Financial Corporation, UMB Bank, N.A., Zach Fee, Nick

Arthachinda, and Kevin Von Atzigen.1 In three issues, InteliTrac argues that (1) the

trial court erred in granting summary judgment in favor of appellees on InteliTrac’s

claims for promissory estoppel, breach of fiduciary duty and constructive fraud,

negligent misrepresentation, fraud, and conspiracy; (2) the trial court erred in

1 We will refer to appellees collectively as appellees, to UMB Financial Corporation and UMB Bank, N.A. as UMB, and to Zach Fee, Nick Arthachinda, and Kevin Von Atzigen as the UMB employees. allowing UMB to pursue attorney’s fees in defense of InteliTrac’s claim for

violations of the Texas Deceptive Trade Practices Act (DTPA) because UMB failed

to timely seek such fees; and (3) the evidence is legally insufficient to support the

jury’s verdict, and the trial court’s award, of attorney’s fees in the amount of

$430,000. Because we conclude InteliTrac failed to raise a genuine issue of material

fact as to each of the challenged elements in response to appellees’ motion for

summary judgment, UMB timely sought attorney’s fees for defending against

InteliTrac’s DTPA claim, and the evidence was legally sufficient to support the trial

court’s award of attorney’s fees, we affirm.

Background

InteliTrac is a defense contractor for the United States government that

specializes in software, database development, and personnel solutions. UMB

Financial Corporation is a financial services holding company that offers banking

and other financial services nationwide through its subsidiaries. UMB Bank, N.A.

is one such subsidiary, and the individually named appellees are employees of UMB

Bank. Specifically, Fee was the President of UMB’s Texas Region, Arthachinda

was the Vice President of UMB’s Capital Markets Group, and Von Atzigen was a

Senior Portfolio Manager with the commercial lending team.

In August 2014, InteliTrac sought to merge with DECO, another defense

contractor that provided law enforcement and military training, security solutions,

and specialized technical services to the United States government and its allies.

–2– Negotiations occurred for several months. In order to finalize the merger and

acquisition with DECO, InteliTrac sought to obtain a $20 million loan from UMB

through one of its loan officers, Steve White. InteliTrac’s CEO, Marc Gunderson,

had become friends with White earlier in 2014, and Gunderson, along with several

other individuals, had previously obtained a loan from UMB, through White, for

another unrelated entity, the Medicine Store. On July 2, 2015, InteliTrac and DECO

signed a Letter of Intent and Stock Purchase Agreement, which provided that

InteliTrac was to purchase all of DECO’s outstanding shares for approximately $31

million. The Stock Purchase Agreement was conditioned on InteliTrac securing

financing. White handled the loan application at issue up until he was removed by

UMB in between September 14 and 18, 2015, over a year after the loan process had

begun.

During the application process, InteliTrac managed and invested in DECO in

anticipation of the merger and restructuring of the companies. Representatives from

InteliTrac, DECO, and UMB met on several occasions to discuss InteliTrac’s and

DECO’s financials, the merger, and the loan terms and structure. The loan process

was delayed on several occasions. Initially, the agreement between InteliTrac and

DECO required the loan to be finalized by September 11, 2015. When that was not

possible, InteliTrac paid DECO $400,000 to extend the deadline to September 30,

2015. The loan was not submitted to the loan committee for final approval until

September 24, and the committee denied the loan. According to InteliTrac, the loan

–3– presentation was incomplete and incorrect and InteliTrac was not notified of the

declination until September 29, leaving it no time to try and salvage the merger

agreement. DECO refused to further extend the deadline, and the merger never

occurred.

InteliTrac filed suit against appellees generally alleging that appellees

repeatedly told InteliTrac that the loan was approved when it knew it would

ultimately be denied. Specifically, IntelTrac brought claims for breach of fiduciary

duty, breach of good faith and fair dealing, fraud, negligent misrepresentation,

negligence, breach of contract, conspiracy, and promissory estoppel. Appellees filed

a general denial and made a general request for attorney’s fees. UMB later added a

counterclaim for a declaratory judgment regarding whether a valid and enforceable

agreement was formed and whether certain conditions precedent were met. In

conjunction with its counterclaim, UMB sought attorney’s fees under section 37.009

of the Texas Civil Practice and Remedies Code. On the same day UMB filed its

counterclaim, InteliTrac filed an amended petition adding claims for violating the

DTPA and constructive fraud.

Appellees filed two separate motions for summary judgment. One was filed

by UMB, and one was filed by the UMB employees. UMB moved for summary

judgment on each of InteliTrac’s causes of action, arguing that several of InteliTrac’s

–4– claims failed because they did not satisfy the Statute of Frauds,2 that some were not

actionable as a matter of law, and that the remaining lacked evidence or were

contradicted by evidence and the law. The UMB employees moved for summary

judgment on all claims as well, arguing that they were not liable in their individual

capacities because all alleged acts were performed in the scope of their employment

with UMB, and on the grounds asserted in UMB’s motion. They also incorporated

and adopted the facts, arguments and authorities, and evidence contained in UMB’s

motion. The combined appellees filed a supplemental motion, InteliTrac filed a

single response, and appellees filed a reply, along with objections to certain exhibits

relied upon by InteliTrac. After a hearing,3 the trial court entered an order sustaining

all but one of UMB’s evidentiary objections, another order granting UMB’s motion

for summary judgment on each of InteliTrac’s causes of action, and a third order

granting the UMB employees’ motion for summary judgment on each of InteliTrac’s

causes of action. InteliTrac filed a motion for reconsideration, which the trial court

denied and InteliTrac does not challenge on appeal.

2 The Statute of Frauds provides that a loan agreement for more than $50,000 is not enforceable unless the agreement is in writing and signed by the party to be bound or by that party’s authorized representative. TEX. BUS. & COM. CODE ANN. § 26.02(b). 3 A transcript of the hearing is not included in the appellate record. On appeal, InteliTrac claims it orally nonsuited four of its nine causes of action at the summary judgment hearing: breach of contract, breach of duty of good faith and fair dealing, negligence, and violation of the DTPA. There is no notice or order of nonsuit in the record as to these four claims; however, the final judgment indicates InteliTrac nonsuited its DTPA claim. Regardless, InteliTrac does not challenge the trial court’s grant of summary judgment on these four claims. –5– Prior to the trial court signing its order denying InteliTrac’s motion for

reconsideration, the parties signed a Rule 11 agreement in which UMB agreed to

nonsuit its declaratory judgment counterclaim and not pursue attorney’s fees for that

claim. Instead, UMB planned to pursue attorney’s fees under the DTPA. UMB then

filed an amended counterclaim seeking recovery of its attorney’s fees in defending

against InteliTrac’s DTPA claim. Within its amended counterclaim, UMB also

nonsuited its declaratory action and claim for attorney’s fees under section 37.009.

By separate motion, including a brief in support, UMB moved to recover attorney’s

fees under the DTPA on the basis that the claim was groundless and was brought in

bad faith or for the purpose of harassment.

InteliTrac responded and moved to strike UMB’s counterclaim as being

untimely filed. The trial court denied the motion to strike and granted UMB’s

motion to recover attorney’s fees. Ultimately, the issue of the amount of attorney’s

fees to be awarded to UMB was presented to a jury. The jury found that $430,000

was reasonable and necessary, and the trial court entered a final judgment against

InteliTrac awarding UMB attorney’s fees in the amount of $430,000, costs, and post-

judgment interest.

InteliTrac filed a motion for judgment notwithstanding the verdict or,

alternatively, a motion for new trial. The trial court denied InteliTrac’s motion, and

this appeal followed.

–6– Summary Judgment

A. Standard of Review

We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313,

316 (Tex. 2019). When a motion for summary judgment contains grounds for both

a traditional summary judgment and no-evidence summary judgment, we consider

the no-evidence ground first. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600

(Tex. 2004).

A party, after adequate time for discovery, may move for summary judgment

without presenting evidence on the ground that there is no evidence of one or more

essential elements of a claim or defense on which the adverse party has the burden

of proof. TEX. R. CIV. P. 166a(i). To defeat a no-evidence motion, the nonmovant

must produce evidence raising a genuine issue of material fact on the essential

elements of the claim or defense challenged. Ridgway, 135 S.W.3d at 600. A

nonmovant raises a genuine issue of material fact if it produces more than a scintilla

of evidence establishing the existence of the challenged element. Id. If the

nonmovant fails to produce more than a scintilla of evidence, there is no need to

determine whether the movant established it was entitled to summary judgment on

those claims or defenses under traditional grounds. Id.

A traditional motion for summary judgment requires the moving party to show

that no genuine issue of material fact exists and that it is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c); Lujan v. Navistar, Inc., 555 S.W.3d 79, 84

–7– (Tex. 2018). If the movant carries this burden, the burden shifts to the nonmovant

to raise a genuine issue of material fact. Lujan, 555 S.W.3d at 84. We take evidence

favorable to the nonmovant as true, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor. Ortiz v. State Farm Lloyds, 589

S.W.3d 127, 131 (Tex. 2019).

A defendant is entitled to summary judgment on a plaintiff’s cause of action

if the defendant conclusively negates at least one essential element of the plaintiff’s

cause of action or conclusively establishes all the elements of an affirmative defense

as a matter of law. KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015).

We must affirm the summary judgment if any ground asserted in the motion, and

preserved for appellate review, is meritorious. Joe v. Two Thirty Nine Joint Venture,

145 S.W.3d 150, 157 (Tex. 2004).

B. Analysis

On appeal, InteliTrac challenges the trial court’s grant of summary judgment

in favor of appellees on InteliTrac’s claims for breach of fiduciary duty and

constructive fraud, negligent misrepresentation, promissory estoppel, fraud, and

conspiracy. Generally, InteliTrac’s claims centered on White’s and other UMB

employees’ representations that the loan would be funded, the final committee vote

was just a “rubber stamp,” and there was no reason to look for funding elsewhere,

as well as appellees’ failure to disclose material information such as White’s

inability to handle the loan application and negative feedback and statements from

–8– UMB personnel that would have indicated the loan would not be funded. We address

each cause of action in turn.

1. Breach of Fiduciary Duty and Constructive Fraud

To prove a cause of action for breach of fiduciary duty, a plaintiff must

establish that a fiduciary relationship, and thus fiduciary duty, existed between the

plaintiff and the defendant, the defendant breached its fiduciary duty to the plaintiff,

and the breach caused injury to the plaintiff or a benefit to the defendant. Jones v.

Blume, 196 S.W.3d 440, 447 (Tex. App.—Dallas 2006, pet. denied); see also First

United Pentecostal Church v. Parker, 514 S.W.3d 214, 220–21 (Tex. 2017).

Constructive fraud is the breach of a legal or equitable duty, which the law declares

fraudulent because it either violates a fiduciary relationship or because of its

tendency to deceive others, to violate confidences, or cause injury to public interests.

Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300

S.W.3d 348, 366 (Tex. App.—Dallas 2009, pet. denied) (op. on reh’g). A fiduciary

relationship may be formal, such as an attorney–client or trustee relationship, or

informal. Blume, 196 S.W.3d at 447. An informal relationship may give rise to a

fiduciary duty when one person trusts in and relies upon another. Schlumberger

Tech. Corp. v. Swanson, 959 S.W.2d 171, 176 (Tex. 1997). However, to impose an

informal fiduciary relationship in a business transaction, a special relationship of

trust and confidence must exist prior to, and separate from, the parties’ agreement.

Blume, 196 S.W.3d at 447 (citing Schlumberger, 959 S.W.2d at 177). “[N]ot every

–9– relationship involving a high degree of trust and confidence rises to the stature of a

fiduciary relationship.” Schlumberger, 959 S.W.2d at 176–77. Generally, a

fiduciary relationship does not exist between a borrower and a lender; however, the

relationship can develop into a fiduciary one where the lender exercises excessive

control over, or influence in, the borrower’s business activities. Tex. Champps

Americana, Inc. v. Comerica Bank, 643 S.W.3d 738, 748 (Tex. App.—Dallas 2022,

pet. denied); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 675 (Tex.

App.—Houston [1st Dist.] 1996, no writ).

Appellees argued in their motion for summary judgment that they were

entitled to judgment as a matter of law on InteliTrac’s causes of action for breach of

fiduciary duty and constructive fraud because InteliTrac had no evidence that

appellees exercised excessive control or influence over InteliTrac and, thus, no

evidence a fiduciary relationship existed between InteliTrac and appellees.

Appellees further argued that InteliTrac’s claim of an alleged “past banking

relationship” and “personal relationship” were not enough to establish a fiduciary

relationship.

In response, InteliTrac argued that a material fact issue existed on whether a

fiduciary relationship existed between the parties. InteliTrac claimed that the one-

year relationship of advice, dependence, appellees’ control, and trust evidenced a

fiduciary and special relationship. To support such argument, InteliTrac relied on

the following evidence:

–10–  Gunderson (InteliTrac’s CEO) and White (UMB loan officer) were friends and had known each other since 2014;

 Gunderson was a new client that White brought to UMB;

 Gunderson was a personal guarantor on a previous loan he and others acquired from UMB, of which UMB senior management was aware and of which White was the loan officer;

 UMB met with InteliTrac and DECO regarding their proposed merger in September 2014, and, during the same trip, met with the owners involved in the previous loan;

 a version of the InteliTrac loan was in underwriting as of UMB’s Texas Region’s September 29, 2014 meeting;

 White opened a commercial credit file for InteliTrac on October 28, 2014;

 Gunderson’s affidavit testimony that White, Jon Musmecci, Jim Sangster, and Craig Anderson (UMB employees) offered to provide services related to the DECO loan including rendering business advice about how to structure the transaction and the loans and what financial information was required to obtain loan approval;

 Gunderson’s affidavit testimony that UMB solicited government accounts receivable for collateral for the loan;

 Gunderson’s affidavit testimony that UMB advised InteliTrac that it was not just a borrower; they were partners, and UMB would be a debt facility partner—UMB would hold the debt and InteliTrac would hold the equity;

 Gunderson’s affidavit testimony that Nick Arthachinda, Vice President of UMB’s Capital Markets Group, offered to invest equity in InteliTrac through Mezzanine debt; and

 Gunderson’s affidavit testimony that White and Musmecci exerted control by asking InteliTrac to stop seeking financing for the loan from other banking institutions based on their confidence that the UMB loan would be approved. –11– The remaining statements InteliTrac made in its response to support its claim that a

fiduciary or special relationship existed between the parties are either not supported

by evidence, the evidence referenced does not support the statement, the evidence

cannot be found at the provided exhibit reference, or the trial court sustained UMB’s

objection to the evidence and InteliTrac has not challenged the trial court’s

evidentiary rulings on appeal.4

We conclude that the above evidence does not raise a genuine issue of material

fact as to whether a fiduciary relationship existed before and apart from the

agreement at issue. The fact that Gunderson and White were friends and Gunderson

4 InteliTrac’s summary judgment response motion contained a five-page summary, a sixty-three-page fact section, a fifty-seven-page argument section, and 115 exhibits. Most of the references to evidentiary support in the argument section are references back to individual paragraphs in the fact section, which then referenced the attached exhibits. Many times, the references to either the individual paragraphs or the attached exhibits do not match the argument asserted. As we have recently explained, the trial court is not required to sift through a voluminous response and its exhibits to find the evidence that raises a fact question: In determining whether a summary judgment respondent successfully carried its burden, neither this court nor the trial court is required to wade through a voluminous record to marshal respondent’s proof. Thus, when presenting summary-judgment proof, a party must specifically identify the supporting proof on file that it seeks to have considered by the trial court. Therefore, “in responding to a no-evidence motion for summary judgment, one must do more than itemize the evidence and then, in a section totally separate from the recitation of the evidence, offer general conclusions that the above evidence conclusively establishes each element of the plaintiff’s claims.” In other words, the nonmovant is “obligated to point out with specificity where in his filings there was evidence on each of the challenged elements of his claims.” Landero v. Future Healthcare Sys., Inc., No. 05-21-00881-CV, 2023 WL 4571925, at *2 (Tex. App.— Dallas July 18, 2023, no pet.) (mem. op.) (internal citations omitted); see also Parkchester Holdings, Inc. v. Carrier Corp., No. 05-04-00912-CV, 2005 WL 995357, at *3 (Tex. App.—Dallas Apr. 29, 2005, no pet.) (mem. op.) (“A party responding to a no-evidence motion for summary judgment has the burden of pointing out to the trial court where the issues raised in its response can be found in its offered evidence.”). Thus, evidence not relied on and cited to by InteliTrac in its summary judgment response to a challenged element is not included in our review of whether InteliTrac raised a genuine issue of material fact as to that element.

–12– was a personal guarantor on a previous business loan, along with multiple other

individuals, is not evidence of a prior special relationship. See Meyer v. Cathey, 167

S.W.3d 327, 331 (Tex. 2005) (per curiam) (concluding four-year friendship and

work together on prior projects did not create a fiduciary relationship). The earlier

loan was an “arms-length transaction[] entered into for the parties’ mutual benefit,

and thus do[es] not establish a basis for a fiduciary relationship.” Id. Furthermore,

“mere subjective trust does not, as a matter of law, transform arm’s-length dealing

into a fiduciary relationship.” Schlumberger, 959 S.W.2d at 177.

Additionally, Gunderson’s testimony that UMB employees offered to render

advice on how to structure the loan, explain what was needed for loan approval,

solicit collateral for the loan, or even invest equity, is not evidence that appellees

exercised excessive control over, or influence in, InteliTrac’s general business

activities. Neither is Gunderson’s testimony that UMB employees asked InteliTrac

to stop seeking alternative financing. See, e.g., PlainsCapital Bank v. Reaves, No.

05-17-01184-CV, 2018 WL 6599020, at *4 (Tex. App.—Dallas Dec. 17, 2018, pet.

denied) (mem. op.) (concluding evidence that banker gave plaintiff business advice

regarding her company over several years, including changing from the cash method

to the accrual method, capitalizing the company’s software development costs as an

asset, selling her personal securities holding to infuse additional capital, layering the

company’s loans by obtaining a revolving line of credit and term note, securing a

lock box for the revolving line of credit, and pledging the proceeds from her

–13– husband’s life insurance policy as collateral was insufficient to support the trial

court’s determination that a fiduciary relationship existed between the parties).

Therefore, InteliTrac failed to meet its summary judgment burden as to appellees’

no-evidence challenge, and the trial court did not err in granting summary judgment

on InteliTrac’s claims for breach of fiduciary duty or constructive fraud.

2. Negligent Misrepresentation and Fraud

To prove a cause of action for negligent misrepresentation, the plaintiff must

show that the defendant made a representation in the course of its business or in a

transaction in which it had a pecuniary interest, the representation conveyed false

information for the guidance of others in their business, the defendant did not

exercise reasonable care or competence in obtaining or communicating the

information, and the plaintiff justifiably relied on the representation causing the

plaintiff to suffer pecuniary loss. JPMorgan Chase Bank, N.A. v. Orca Assets G.P.,

L.L.C., 546 S.W.3d 648, 653–54 (Tex. 2018). “Significantly, the sort of ‘false

information’ contemplated in a negligent misrepresentation case is a misstatement

of existing fact,” not a promise of future conduct. AKB Hendrick, LP v. Musgrave

Enters., Inc., 380 S.W.3d 221, 237 (Tex. App.—Dallas 2012, no pet.) (emphasis in

original) (quoting Airborne Freight Corp., Inc. v. C.R. Lee Enters., Inc., 847 S.W.2d

289, 294 (Tex. App.—El Paso 1992, writ denied)).

To prove a cause of action for fraud, a plaintiff must show that the defendant

made a material representation, the representation was false, the defendant knew the

–14– representation was false when he made it or the defendant recklessly made the

misrepresentation as a positive assertion without any knowledge of its truth, the

defendant intended to induce the plaintiff to act upon the representation, and the

plaintiff actually and justifiably relied on the representation, thereby causing the

plaintiff injury. Orca Assets, 546 S.W.3d at 653; Esty v. Beal Bank S.S.B., 298

S.W.3d 280, 303 (Tex. App.—Dallas 2009, no pet.). “Although similar in their

essential elements, fraud is more difficult to prove than negligent misrepresentation

‘due to the added element of intent to deceive.’” Grant Thornton LLP v. Prospect

High Income Fund, 314 S.W.3d 913, 921 (Tex. 2010) (quoting Richter, S.A. v. Bank

of Am. Nat’l Tr. & Sav. Ass’n, 939 F.2d 1176, 1185 (5th Cir. 1991)). Therefore, to

succeed on a fraud claim, a plaintiff must establish that the defendant acted with

fraudulent intent. Tex. Integrated Conveyor Sys., 300 S.W.3d at 366.

Unlike negligent misrepresentation, “[a] promise of future performance can

be the basis of an actionable fraud claim if the promise was made with no intention

of performing at the time it was made.” AKB Hendrick, 380 S.W.3d at 233. A claim

for fraud can also be shown by establishing that the defendant had a duty to disclose

and failed to disclose. Schlumberger, 959 S.W.2d at 181. Specifically, the plaintiff

must establish that the defendant failed to disclose material facts, the defendant had

a duty to disclose such facts to the plaintiff, the plaintiff was ignorant of the facts

and did not have an equal opportunity to discover such facts, the defendant intended

the plaintiff to act or refrain from acting based on its disclosure, and the plaintiff

–15– relied on the nondisclosure resulting in injury. Bombardier Aerospace Corp. v.

SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 219–20 (Tex. 2019).

Appellees argued they were entitled to summary judgment on InteliTrac’s

claim against them for negligent misrepresentation because InteliTrac could not

establish the existence of an actionable representation, i.e. a representation of an

existing fact versus a promise of future conduct, or that it justifiably relied on such

representation. Specifically, appellees asserted that the alleged representation that

the loan would be approved is not actionable because it concerned a future event,

not an existing fact. Appellees also contended that InteliTrac could not justifiably

rely on such representations when there were red flags indicating reliance was

unwarranted.

InteliTrac responded that it had ample evidence to support its claim and the

existence of actionable representations on which it justifiably relied. Specifically,

InteliTrac argued that appellees made the following statements of existing fact: the

deal was already approved in Texas and by Fee, the loan committee members

previewed and approved the loan, there was no need to seek alternate financing, and

the loan presentation package was done but system failures delayed the agenda.

InteliTrac also asserted that its board’s actions demonstrated reasonable reliance on

appellees’ representations.

As to InteliTrac’s traditional fraud claim, appellees argued in their motion for

summary judgment that InteliTrac had no evidence that, even if appellees made

–16– alleged promises of a future loan approval, appellees knew the representations were

false or made the representations with the intent to deceive InteliTrac. Appellees

also again argued there was no evidence of justifiable reliance.

InteliTrac argued in its response that “UMB was on actual notice that senior

loan officer White was making false statements to InteliTrac and was sending them

internal Opportunity Memos as early as May 2015 to induce reliance.” InteliTrac

asserted that appellees made the following promises of future actions: the promise

of a formal approval by UMB’s loan committee, the promise that a commitment

letter would be signed, and the promise that the loan would be closed by September

30, 2015. InteliTrac also argued that, in reliance on appellees’ representations, it

expended large sums of money in due diligence and to finalize the Stock Purchase

Agreement with DECO.

Because it is dispositive to our review of the trial court’s summary judgment

ruling, we first address whether InteliTrac raised a genuine issue of material fact

with respect to the element of justifiable reliance for both its negligent

misrepresentation claim and its traditional fraud claim. We conclude InteliTrac

failed to bring forth evidence that it justifiably relied on any alleged representations

when it decided to pay the $400,000 to extend the deadline, when it decided not to

pursue alternative financing, and when it continued to pursue the loan with UMB.

In the portion of its motion responding to appellee’s challenge to the element

of justifiable reliance, InteliTrac asserted, “Gunderson and InteliTrac’s board’s

–17– actions demonstrate a reasonable reliance upon UMB’s inducements and

representations. The evidence is that other experienced parties involved with

[InteliTrac] relied on UMB’s representations . . . .” Except for evidence that

InteliTrac paid DECO $400,000 on September 11, 2015, to extend the closing date

until September 30, 2015, InteliTrac did not cite to any evidence showing that

Gunderson or InteliTrac’s board acted in response to UMB’s representations.

Instead, the evidence InteliTrac produced showed that DECO was “expending

extensive resources and conducting extensive due diligence,” and thus, “[i]t was

important for [Jeff Gibson (Deco’s CEO)] to hear [at the June 2015 meeting] that

UMB approved the loan.” Gibson had agreed to continue in a management role

when the companies merged. Gibson’s, and thus DECO’s reliance on

representations made at the June 2015 meeting, however, is not evidence of

InteliTrac’s reliance. And InteliTrac’s argument that it paid $400,000 for the

extension because White told Gunderson the loan approval process was delayed due

to technical failures is belied by its own evidence. The summary judgment evidence

shows that InteliTrac and DECO agreed to the extension on September 11, four days

prior to White’s representation that the loan did not go to committee on September

15 due to “system issues.”

Furthermore, there can be no dispute that InteliTrac knew the loan was not

final until it was approved by the committee. The summary judgment evidence

shows that InteliTrac, specifically Gunderson and his son Will, knew that the deal

–18– was not complete in June and that the loan had to be approved by the loan committee

before it was final. Even after InteliTrac paid the $400,000 to extend the deadline

and White was removed, InteliTrac and its investors knew that the loan was not

guaranteed. This is evidenced by two emails (cited to by InteliTrac in the fraud

section of its response) sent from Steve Koenig, an investor, to other investors, as

well as to Gunderson and Eric Powers (InteliTrac’s Director of Finance), after

Musmecci took over the loan presentation. The first is a September 16, 2015 email

in which Koenig advised the group that he spoke with Musmecci who said that he

was taking over the loan process, would keep Koenig informed as the process moved

forward, liked the deal, assured Koenig that the process would be expedited, and

“pending the loan committee’s approval, will not have any problem having the deal

closed and funded by September 30, 2015.” (emphasis added). Koenig concluded

his email by stating Musmecci “sounded confident, let’s hope they deliver.” The

second is a Tuesday, September 22 email from Koenig to the group advising that he

received an update from Musmecci that the loan package was completed and would

go to committee on Thursday. Koenig further advised that Musmecci “assured [him]

that they would meet the 30th deadline” and that Musmecci would be pre-meeting

with three of the committee members Wednesday. The email concluded, “The wait

continues . . . .”

Additionally, appellees’ summary judgment evidence showed that Gunderson

was a seasoned entrepreneur with prior acquisition and sales experience and had

–19– been through the loan process with UMB before. White and InteliTrac exchanged

multiple draft Opportunity Memos, including at least one draft to which an InteliTrac

representative made suggested changes. Thus, the summary judgment evidence

established that the parties had ongoing discussions regarding the terms and structure

of the loan request and that InteliTrac understood that the loan would not become

final until presented to and approved by the committee. “Such actions do not signify

a deal; they constitute negotiations.” Bluebonnet Sav. Bank, F.S.B. v. Grayridge

Apartment Homes, Inc., 907 S.W.2d 904, 909 (Tex. App.—Houston [1st Dist.] 1995,

writ denied).

Therefore, no matter what assurances were made leading up to the loan

presentation, the evidence established InteliTrac understood the loan could not be

finally approved and funded until the loan request was presented and the committee

members voted to approve it. While the element of justifiable reliance is generally

a question of fact, it can be negated as a matter of law when circumstances exist

under which reliance cannot be justified. Orca Assets, 546 S.W.3d at 654. The

summary judgment evidence here presents such circumstances. InteliTrac “needed

to protect its own interests through the exercise of ordinary care and reasonable

diligence rather than blindly relying upon another party’s vague assurances. Its

failure to do so precludes its claim of justifiable reliance as a matter of law.” Id. at

660. As such, the trial court did not err in granting summary judgment in favor of

appellees on InteliTrac’s claims of negligent misrepresentation and traditional fraud.

–20– We next turn to InteliTrac’s fraud by nondisclosure claim. Appellees asserted

in their motion for summary judgment that InteliTrac could not establish appellees

had a duty to disclose. A duty to disclose arises in four circumstances: (1) a fiduciary

or other special relationship between the parties gives rise to a duty to disclose; (2)

newly discovered information makes a defendant’s earlier representation misleading

or untrue; (3) a defendant conveys a false impression by making a partial disclosure;

and (4) a defendant who voluntarily discloses some information has a duty to

disclose the whole truth. Bombardier Aerospace, 572 S.W.3d at 220. Because we

have already determined there was no fiduciary or special relationship between the

parties, our review will focus on InteliTrac’s arguments and evidence that a duty

arose under one of the remaining three circumstances.

As to the second circumstance, InteliTrac listed several pieces of new

information that became available between January and August 2015, which

“dramatically changed the status of the loan approval” but was not disclosed to

InteliTrac. However, InteliTrac failed to cite to any evidence in support.

Regarding the situation where a defendant conveys a false impression by

making a partial disclosure, InteliTrac asserted that White promised a binding

commitment letter and created the false impression that he was providing such when

he sent the Opportunity Memos and the September letter and that White created the

false impression that the loan presentation package was complete but that system

failures had prevented its consideration by the committee. These assertions, and

–21– InteliTrac’s supporting evidence, do not show that White made partial disclosures

leaving a false impression. Instead, these would fall under traditional fraud, i.e. a

defendant making false statements.

In support of the fourth circumstance giving rise to a duty to disclose, where

a defendant who voluntarily discloses some information has a duty to disclose the

whole truth, InteliTrac listed the following instances: White’s statements that UMB

had previewed the loan to committee members and approval would be a “rubber

stamp,” when that was not the case; the loan package was finalized, when it was not

because it was missing the audited net present value of the contracts, which was

critical; InteliTrac was advised that White was removed from the loan process but

was not told it was due to his incompetence and poor performance that had been

occurring since the beginning of 2015; and no one informed InteliTrac that Dustin

Rall’s recent loan application had been denied because he was associated with the

previous Medicine Store loan. However, once again, InteliTrac failed to direct the

trial court to any evidence supporting these specific instances in its argument section

regarding its “omission-based claims.”

Because InteliTrac failed to direct the trial court to evidence of circumstances

giving rise to a duty to disclose, InteliTrac failed to meet its summary judgment

burden as to its claim for fraud by omission. Therefore, the trial court did not err in

granting appellees’ motion on this claim.

–22– 3. Promissory Estoppel

“Promissory estoppel may be utilized to enforce a promise when a plaintiff

justifiably and reasonably relies on the promise to his detriment, it was foreseeable

that the plaintiff would rely on the promise, and injustice can only be avoided by

enforcement of the promise.” Esty, 298 S.W.3d at 305; see also English v. Fischer,

660 S.W.2d 521, 524 (Tex. 1983) (setting out elements of promissory estoppel as a

promise, foreseeability of reliance thereon by the promisor, and substantial reliance

by the promisee to his detriment). To be actionable, the promise must be sufficiently

definite and “more than speculation of future events, a statement of hope, an

expression of opinion, an expectation, or an assumption.” Esty, 298 S.W.3d at 305.

Similar to its argument with respect to InteliTrac’s negligent

misrepresentation claim, UMB argued that InteliTrac had no evidence of a definite

promise of an existing event and no evidence that it reasonably and justifiably relied

on such promise. InteliTrac failed to reference any evidence in response. After

setting out the elements of promissory estoppel, InteliTrac simply stated: “Plaintiff

has ample evidence to establish these elements of this claim, the evidence also

proves the existence of a definite promise of an existing event or Plaintiff’s

reasonable and justifiable reliance on same. As such, Plaintiff’s claim for

promissory estoppel does not fail on the merits.”

InteliTrac’s conclusory statement that the elements of its promissory estoppel

claim were supported by evidence is insufficient to meet its summary judgment

–23– burden and does not create a fact question on the challenged elements. See Landero,

2023 WL 4571925, at *2–3. Therefore, the trial court did not err in granting UMB’s

motion for summary judgment as to InteliTrac’s cause of action for promissory

estoppel.

4. Conspiracy

The elements of a conspiracy claim are (1) two or more persons (2) have a

meeting of the minds on (3) an object or course of action to be accomplished, (4)

and there is one or more unlawful overt act taken in pursuance of the object or course

of action, (5) which proximately causes damages to the plaintiff. Parker, 514

S.W.3d at 222. “An actionable civil conspiracy requires specific intent to agree to

accomplish something unlawful or to accomplish something lawful by unlawful

means.” Id. Conspiracy is a derivative tort that depends on the commission of an

underlying tort or illegal act to survive. Agar Corp., Inc. v. Electro Circuits Int’l,

LLC, 580 S.W.3d 136, 140–42 (Tex. 2019) (relying in part on Tilton v. Marshall,

925 S.W.2d 672, 681 (Tex. 1996)).

In their motion for summary judgment, appellees argued InteliTrac had no

evidence appellees possessed specific intent to use unlawful means or to accomplish

an unlawful purpose, no evidence of a meeting of the minds, and no evidence of an

unlawful overt act. Appellees also argued that InteliTrac’s conspiracy claim failed

because it is a derivative tort that cannot survive without an underlying tort.

–24– In its summary judgment response, InteliTrac argued, “There is also evidence

of action in concert sufficient for a conspiracy. There is clearly a ‘conspiracy of

silence’ after the loan was declined. No one knows anything.” To support its

argument that it produced evidence showing appellees possessed specific intent to

use unlawful means or to accomplish an unlawful purpose and had a meeting of the

minds, InteliTrac cited to Gunderson’s affidavit as a whole. InteliTrac did not direct

the trial court to specific paragraphs within Gunderson’s affidavit or further argue

how Gunderson’s affidavit raised a fact question as to each element challenged.

InteliTrac cited to no other evidence in this section of its response. While Gunderson

testified about the various alleged promises and representations by UMB and its

employees (most of which was excluded by the trial court on appellees’ objection),

we have not identified any testimony that shows a meeting of the minds between

UMB employees to use unlawful means to accomplish an object or course of action.

Moreover, because we have determined that InteliTrac failed to raise a

genuine issue of material fact to support each challenged element of InteliTrac’s

other causes of action and, thus, the trial court did not abuse its discretion in granting

summary judgment on those causes of action, there is no underlying tort remaining

to support InteliTrac’s conspiracy claim. See id. at 141 (“[A] civil conspiracy claim

is connected to the underlying tort and survives or fails alongside it.”); Grant

Thornton, 314 S.W.3d at 930–31 (concluding that, because fraud claim based on the

same alleged misrepresentations failed, plaintiff’s conspiracy claim failed as well).

–25– Therefore, the trial court did not err in granting summary judgment in favor of

appellees on InteliTrac’s conspiracy claim.

C. Summary

Having concluded the trial court did not err in granting summary judgment in

favor of appellees on InteliTrac’s claims for breach of fiduciary duty, constructive

fraud, negligent misrepresentation, promissory estoppel, fraud, and conspiracy,

which are the only causes of action at issue in this appeal, we overrule InteliTrac’s

first issue.

Attorney’s Fees under the DTPA

InteliTrac argues in its second issue that UMB failed to timely seek attorney’s

fees under the DTPA because it did not plead for the recovery of such fees until after

InteliTrac voluntarily dismissed the DTPA claim at the summary judgment hearing,

after the trial court granted summary judgment, and after the deadline in the court’s

scheduling order. In its third issue, InteliTrac asserts that the evidence was legally

insufficient to support the jury’s award of $430,000 in attorney’s fees. UMB

responds that it had no obligation to plead a specific entitlement to attorney’s fees

under the DTPA because the award is mandated by the statute, but even if it did,

InteliTrac cannot show it did so untimely or that InteliTrac was surprised. Further,

UMB asserts that it presented expert testimony regarding the legal work performed,

which overlapped in defending against the various causes of action InteliTrac

asserted against it, and thus the evidence was legally sufficient to support the award.

–26– A. Timeliness

The trial court’s third amended scheduling order, signed on October 24, 2018,

provided that amended pleadings asserting new causes of action or raising new

defenses shall be filed by November 1, 2018. The order further provided, “Amended

pleadings responsive to timely filed pleadings under this schedule may be filed after

the deadline for amended pleadings if filed within 10 days after the pleading to which

they respond.” InteliTrac first filed suit against appellees on January 3, 2017. UMB

answered with a general denial and pleaded several defenses, as well as special

exceptions. On November 1, 2018, at 4:53 p.m., InteliTrac amended its petition to

include a cause of action under the DTPA. On November 1, 2018, at 5:02 p.m.,

UMB filed an amended answer and original counterclaim for declaratory judgment

and sought attorney’s fees under section 37.009 of the Texas Civil Practice and

Remedies Code. UMB did not specifically plead for recovery of attorney’s fees

under the DTPA until it filed its first amended counterclaim on September 3, 2019,

in which it alleged that InteliTrac’s claims under the DTPA, filed on November 1,

2018, were “groundless, brought in bad faith and/or for the purpose of harassment.”

In its amended counterclaim, UMB also nonsuited its declaratory judgment action

and made clear it was seeking to recover fees only under the DTPA. UMB did not

seek leave of court to file its amended counterclaim after the deadlines set out in the

court’s scheduling order. The parties dispute whether such action was fatal to

UMB’s claim for attorney’s fees under the DTPA.

–27– “Absent a mandatory statute, a trial court’s jurisdiction to render a judgment

for attorney’s fees must be invoked by pleadings, and a judgment not supported by

pleadings requesting an award of attorney’s fees is a nullity.” Alan Reuber

Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 884 (Tex. App.—Dallas

2009, no pet.). As relevant here, the DTPA provides, “On a finding by the court that

an action under this section was groundless in fact or law or brought in bad faith, or

brought for the purpose of harassment, the court shall award to the defendant

reasonable and necessary attorneys’ fees and court costs.” TEX. BUS. & COM. CODE

ANN. § 17.50(c) (emphasis added). The phrase “the court shall award” is mandatory.

See Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998) (“Statutes providing that a

party ‘may recover’, ‘shall be awarded’, or ‘is entitled to’ attorney fees are not

discretionary.”). Thus, because an award of attorney’s fees under the DTPA is

mandatory if the trial court makes certain findings, we agree that UMB was not

required to plead for attorney’s fees under the DTPA in its counterclaim. See Martin

v. Lou Poliquin Enters., Inc., 696 S.W.2d 180, 185 (Tex. App.—Houston [14th

Dist.] 1985, writ ref’d n.r.e.) (op. on reh’g) (“DTPA § 17.50(c) provides a mandatory

award of attorney’s fees to a defendant if the court finds the suit groundless, brought

in bad faith, or brought for the purpose of harassment.”); see also Dunn v. Parker,

No. 06-19-00036-CV, 2019 WL 4559096, at *1, 5 (Tex. App.—Texarkana Sept. 20,

2019, no pet.) (mem. op.) (concluding it was not necessary for appellees to plead for

attorney’s fees in their petition because an award of attorney’s fees to the prevailing

–28– party under the Texas Theft Liability Act is mandatory); Robinson v. Brannon, 313

S.W.3d 860, 868–69 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (concluding

it was not necessary for appellee to plead for attorney’s fees because an award for

attorney’s fees is mandatory under the Texas Education Code when the employee is

found to be immune from liability; therefore, appellee properly requested the fees

after the trial court found him immune).

Even if UMB was required to plead for attorney’s fees, it did so in its first

amended counterclaim. We conclude that UMB’s pleading was timely. Rule 63

provides in relevant part:

Parties may amend their pleadings, [or] respond to pleadings on file of other parties . . . provided, that any pleadings, responses or pleas offered for filing . . . after such time as may be ordered by the judge . . . shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.

TEX. R. CIV. P. 63. Although UMB did not initially seek leave of court to file its

amended counterclaim, it did seek leave on October 4, 2019. The trial court did not

expressly grant UMB’s motion for leave; however, the trial court denied InteliTrac’s

motion to strike on November 18, 2019, the same day it granted UMB’s motion for

fees. As the supreme court has explained, “‘A liberal interpretation has been given

to Rule 63,’ such that ‘leave of court [to file a late pleading] is presumed’ when it is

‘considered by the trial court’ and the opposing party ‘has not shown surprise or

prejudice.’” Mosaic Baybrook One, L.P. v. Cessor, 668 S.W.3d 611, 625 (Tex.

–29– 2023) (alteration in original) (quoting Goswami v. Metro. Sav. & Loan Ass’n, 751

S.W.2d 487, 490 (Tex. 1988)).

On this record, we cannot conclude that InteliTrac showed it was surprised or

prejudiced by UMB’s September 3, 2019 amended counterclaim for attorney’s fees.

The record shows that UMB initially made a general prayer for attorney’s fees in its

original answer. It subsequently amended its general request for fees to a recovery

of fees in relation to its counterclaim for declaratory judgment. After InteliTrac

added its DPTA claim, UMB made known to InteliTrac that it was seeking attorney’s

fees under the DTPA. Specifically, on March 12, 2019, in UMB’s Third

Supplemental Responses to InteliTrac’s Request for Disclosure, UMB responded,

“Pursuant to Tex. Bus. & Com. Code § 17.50(c), Defendants seek an award of their

attorneys fees and expenses incurred in connection with this action given that

Plaintiffs’ claims are groundless, brought in bad faith, and/or instituted for the

purposes of harassment.” Furthermore, after the summary judgment hearing, the

parties entered into the following Rule 11 agreement:

1. Based on Plaintiff’s stipulation of dismissal of its breach of contract claim and the Court’s subsequent Order granting summary judgment in Defendants’ favor on Plaintiffs breach of contract claim, the Bank Defendants have agreed to nonsuit their Declaratory Judgment counterclaim and not pursue attorneys’ fees for that claim.

2. Defendants intend to only pursue a claim for attorneys’ fees under Tex. Bus. & Com. Code § 17.50(c).

3. If the Court determines that Defendants are entitled to attorneys’ fees under Tex. Bus. & Com. Code § 17.50 (c), Plaintiff intends to conduct discovery regarding Defendants’ request for attorneys’ fees.

–30– Defendants reserve the right to object to, or otherwise contest, such discovery efforts.

4. In consideration of the foregoing, the Parties will notify the Court that there is currently no need for a jury-trial setting, but instead a hearing to determine whether Defendants are entitled to attorney fees under Tex. Bus. & Com. Code § 17.50 (c), and then, if such a determination is made, a subsequent hearing will be held on the amount of attorney fees and costs to be awarded.

Accordingly, InteliTrac was aware of UMB’s claim for attorney’s fees under the

DTPA as early as March 2019 and specifically knew UMB was continuing to pursue

its fees when InteliTrac’s signed the July 2019 Rule 11 agreement. Because

InteliTrac did not show it was surprised or prejudiced by UMB’s amended filing,

leave of court is presumed and, therefore, UMB’s amended claim for attorney’s fees

was not untimely.

Furthermore, to the extent InteliTrac argues that UMB could not recover fees

because it did not file its pleading until after InteliTrac nonsuited the DTPA claim

and/or after the trial court granted summary judgment and thus the DTPA claim was

no longer pending, we reject such argument. See Cameo Constr. Co. v. Campbell,

642 S.W.2d 10, 12 (Tex. App.—El Paso 1982, no writ) (“The fact that [plaintiffs]

by amended pleading eliminated all claims against [defendant] under the Deceptive

Trade Practice Act did not totally relieve them of all liability to him if the original

pleadings which asserted such a claim ‘was groundless and brought in bad faith, or

brought for the purpose of harassment.’” (quoting TEX. BUS. & COM. CODE §

17.50(c))). We conclude the trial court did not abuse its discretion in denying

–31– InteliTrac’s motion to strike UMB’s amended counterclaim. InteliTrac’s second

issue is overruled.

B. Sufficiency of Award

InteliTrac argues in its third issue that the evidence was insufficient to support

an award of attorney’s fees in the amount of $430,000 because only six of the

approximately 470 time entries on the billing invoices described work specifically

defending against the DTPA. InteliTrac contends that the amount is “manifestly

unreasonable and unnecessary to defend against one claim that was only an active

claim during seven months of the litigation.” InteliTrac further asserts that the

segregation percentage of 78%, recommended by UMB’s expert, was “grossly

inflated.”

To recover attorney’s fees, a party must present evidence of the particular

services performed, when they were performed and who performed them, the

reasonable amount of time required to perform such services, and the reasonable

hourly rate for each person who performed the services. Rohrmoos Venture v. UTSW

DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019). “The party seeking

attorneys’ fees bears the burden of proof and must supply enough facts to support

the reasonableness of the amount awarded.” Yowell v. Granite Operating Co., 620

S.W.3d 335, 354 (Tex. 2020).

“[I]f any attorney’s fees relate solely to a claim for which such fees are

unrecoverable, a claimant must segregate recoverable from unrecoverable fees.”

–32– Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313 (Tex. 2006). Whether

attorney’s fees were properly segregated is a mixed question of law and fact. Id. at

312–13. The ultimate question of whether a party is excused from segregating fees,

i.e. whether the causes of action are so intertwined that they cannot be separated, is

a question of law that we review de novo; however, the amount of fees necessary to

prosecute such claims often turns on “judgment and credibility questions about who

had to do what and what it was worth.” Id. at 311–13. “The determination of

reasonable and necessary attorneys fees is an issue generally left to the trier of fact.”

Kinsel v. Lindsey, 526 S.W.3d 411, 427 (Tex. 2017).

Aaron Tobin, UMB’s expert witness, testified that he reviewed invoices,

pleadings, and discovery to determine the amount of reasonable and necessary fees.

He did not review legal work that was performed prior to InteliTrac adding its DTPA

claim in its amended petition. Tobin testified that the factual allegations changed

very little between InteliTrac’s original petition and its amended petition He

explained that, in this case, like many complex business cases, the same set of facts

can support more than one cause of action. Relying on the Arthur Anderson factors,

Tobin also explained that the DTPA is one of the most serious claims you can handle

as a defense lawyer because a prevailing plaintiff can be awarded treble damages.

See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997)

(one factor to be considered is the time and labor required, the novelty and difficulty

of the questions involved, and the skill required to perform the legal service

–33– properly). The case was also very important because the plaintiff was seeking $50

million in damages. See id. (another factor that should be considered is the amount

involved and the results obtained). Tobin also opined that getting an order granting

summary judgment was the “best possible outcome you could hope for to get all of

these claims dismissed” in motion practice instead of at trial; it was “a superior

result” for a defendant. See id.

As to the segregation of fees, Tobin explained to the jury that there are

different ways one can recover under the DTPA. One is under a laundry list of

activities, most of which “involve some sort of fraudulent or deceptive means or

misrepresentation or giving false statements . . . so similar words that are used and

standards of proof that are used in the other claims . . . such as fraud and breach of

fiduciary duty.” Tobin opined that the same amount of work would have been done

if InteliTrac had not amended its petition to add the DTPA claim but also a large

portion, if not close to all the work done, would still have been needed if InteliTrac

alleged only a DTPA claim.

The legal services Tobin reviewed included preparing and responding to

discovery, such as requests for information and depositions; work related to expert

discovery for damages experts and liability experts; reviewing tens of thousands of

documents that were exchanged in discovery; and motion practice, specifically

UMB’s motion for summary judgment. If work was done for another claim and the

work had nothing to do with the facts that underlined the DTPA cause of action, he

–34– excluded it from his calculation. However, he explained, if it was so intertwined

that he could not separate the work, it was counted.

Tobin calculated that the total amount of attorney’s fees charged between

InteliTrac’s filing of the DTPA claim and the summary judgment hearing was

$814,030.17. In addition to excluding tasks he determined were unrelated to the

DTPA claim, Tobin subtracted 22% of each fee charged, leaving 78% of each DTPA

related fee as the amount he determined to be reasonable and necessary. The 22%

represented work done on the breach of contract and promissory estoppel claim and

was derived by assigning 11% to each of the nine causes of action alleged; thus, two

causes of action equaled 22% of the work done. Based on these calculations, Tobin

opined that a reasonable and necessary fee for the work done from filing until

summary judgment was $422,144.44, which was almost a 50% reduction from the

fees charged during that timeframe. In addition, Tobin opined that the amount of

reasonable fees and expenses charged from after the trial court granted summary

judgment through trial, which related to the recovery of attorney’s fees, prosecuting

that claim, discovery and motion practice, pretrial proceedings, and the trial itself,

was $234,341.78. The total amount that Tobin opined was reasonable and necessary

for the DTPA claim was $656,486.22. He explained that this amount was roughly

40% of the $1,615,176 in total fees and expenses charged in the case.

On cross-examination, InteliTrac’s counsel questioned Tobin about how

UMB’s counsel block billed multiple tasks per day instead of billing by individual

–35– task and pointed out that there were ten to fifteen billers on the case. Tobin reiterated

that “if there was an entry that had nothing to do with the DTPA and the time . . .

spent would not also apply to helping defend against the DTPA case, then those

entries [we]re not included in the opinion.” InteliTrac’s counsel also questioned

Tobin regarding the work done related to the DTPA claim in UMB’s motion for

summary judgment. Tobin agreed that the summary judgment argument was limited

to whether InteliTrac was a consumer and whether the transaction was over

$500,000, which by way of example did not overlap with the argument presented

regarding InteliTrac’s claim for breach of fiduciary duty, as that argument was

limited to whether a fiduciary relationship existed at all. Tobin also went on to

explain that, although specific arguments may not have been made in UMB’s

summary judgment motion that were related to other claims, there had to be factual

discovery done to determine whether the transaction was of the type of transaction

that is excluded from the DTPA.

On re-direct, Tobin testified that UMB’s lead attorney rate was $550 per hour

and that amount was reasonable considering the attorney was a sophisticated

business trial lawyer. Tobin also testified that the other attorneys’ rates were

reasonable. As to his segregation analysis, Tobin maintained that the same set of

facts was applicable to everything, so in terms of discovery and depositions UMB

was seeking facts related to the other claims as well. He opined that, generally,

recoverable fees would rarely be documented by an entry only noting the DTPA.

–36– InteliTrac’s attorney, Clay Townsend, testified on behalf of InteliTrac,

although he was not designated as an expert witness and, thus, was not permitted to

opine to a specific amount of attorney’s fees that would be reasonable and necessary.

Townsend testified that by the time the DTPA claim had been filed, most of the facts

had been developed; thus, it was not the factual elements that required a lot of work

to produce the motion for summary judgment, it was the legal research and

arguments. He explained that his firm breaks down the claims they are researching

by claim and element; they do not block bill as UMB’s attorneys did. He emphasized

that out of 470 entries, UMB’s attorneys’ invoices contained only one reference to

the DTPA, and it was in the middle of a block bill for March 12, 2019. In his opinion,

because only the DTPA fee could be recovered, the amount awarded in attorney’s

fees should be limited to one-ninth, not seven-ninths as Tobin testified.

Our first task in determining whether the attorney’s fees award was supported

by legally sufficient evidence is to determine whether UMB’s expert properly

segregated the fees. In its amended petition, InteliTrac alleged that UMB committed

violations of the DTPA by its:

. . . unconscionable course of conduct for nearly one year in dealing with [InteliTrac]’s loan, in falsely inducing [InteliTrac] to not seek alternative sources of financing, by concealing that there were strong personal feelings of animus against associates of [InteliTrac] which had nothing to do with underwriting the loan, and in failing to disclose that there were pre-requisites and conditions to approving the loan which were concealed from, or never communicated to, [InteliTrac].

–37– Thus, InteliTrac’s DTPA claim generally alleged that UMB committed violations of

the DTPA by making material false representations, committing fraud, or

committing fraud by nondisclosure. As detailed above in our review of the trial

court’s summary judgment ruling, these are the same allegations contained within

InteliTrac’s claims for negligent misrepresentation and fraud, and subsumed within

its conspiracy claim. In addition, although not addressed in the summary judgment

arguments, InteliTrac’s claims for breach of fiduciary duty and breach of good faith

and fair dealing alleged that UMB failed to disclose known facts concerning its

Financial Chairman and CEO Mariner Kemper’s motives (to not do business with

Gunderson because of his association with the Medicine Store loan) and that UMB

never intended to fund the loan. Likewise, InteliTrac’s claim for constructive fraud

alleged UMB failed to disclose the personal animus Kemper held against InteliTrac

associates, grossly mishandled the loan application and presentation, concealed

critical information needed for loan approval, and induced InteliTrac to not seek

alternative financing. InteliTrac’s negligence claim broadly alleged that UMB’s

conduct constituted negligence. Therefore, we agree with UMB that the same

underlying facts applied to all claims alleged by InteliTrac, including the DTPA

claim.5

5 We do not consider InteliTrac’s claims for breach of contract or promissory estoppel here because UMB’s expert already removed the percentage of time worked on these claims from its overall amount requested. –38– However, the fact that the claims are “all ‘dependent upon the same set of

facts or circumstances,’ . . . does not mean they all required the same research,

discovery, proof, or legal expertise.” Chapa, 212 S.W.3d at 313 (quoting Stewart

Title Guar. Co. v. Sterling, 822 S.W.2d 1, 11 (Tex. 1991)). The Supreme Court has

explained:

. . . . To the extent Sterling suggested that a common set of underlying facts necessarily made all claims arising therefrom “inseparable” and all legal fees recoverable, it went too far.

But Sterling was certainly correct that many if not most legal fees in such cases cannot and need not be precisely allocated to one claim or the other. Many of the services involved in preparing a contract or DTPA claim for trial must still be incurred if tort claims are appended to it; adding the latter claims does not render the former services unrecoverable. Requests for standard disclosures, proof of background facts, depositions of the primary actors, discovery motions and hearings, voir dire of the jury, and a host of other services may be necessary whether a claim is filed alone or with others. To the extent such services would have been incurred on a recoverable claim alone, they are not disallowed simply because they do double service.

. . . . Intertwined facts do not make tort fees recoverable; it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated.

Id. at 313–14.

From our review of Tobin’s testimony and the invoices presented to the jury,

we characterize the discrete legal services performed as follows: discovery related

tasks, preparing for a jury focus group and mock trial, and summary judgment related

tasks. Because the underlying facts apply to each of InteliTrac’s claims and because

many of the claims have similar, if not identical elements, we agree that counsels’

–39– discovery related tasks and preparation for the jury focus group and mock trial would

have been necessary even if the DTPA claim had been the sole cause of action

alleged. This is so due to the role of discovery and mock trial—to discover and

document the underlying facts at issue and to prepare and practice the case

presentation before ultimately trying the case to a jury.

The same cannot always be said of preparing a motion for summary judgment,

however, because it is the succinct legal arguments advanced in the motion that

generally make up the bulk of the service provided. As illustrated in this case, a

party may choose to attack individual elements of the various causes of action in

order to show it is entitled to summary judgment. Thus, although compiling the

factual background section could be considered work advancing both recoverable

and unrecoverable claims, the work performed in drafting specific arguments to

attack certain elements of each individual claim would likely not advance both the

recoverable claims and the nonrecoverable claims.

Here, the bulk of UMB’s argument as to why it was entitled to summary

judgment on InteliTrac’s DTPA claim was limited to whether InteliTrac was a

consumer under the DTPA and whether the DTPA could apply to the transaction

when it was for an amount over $500,000. These specific DTPA related arguments

made up approximately two pages of UMB’s forty-three-page motion. Its reply to

InteliTrac’s response regarding the DTPA claim spanned only one-and-one-half

pages. Although UMB included argument and legal authority related to the DTPA

–40– in its global assertions that the statute of frauds barred InteliTrac’s claims and that

InteliTrac could not prove causation, none of its other arguments (such as no

fiduciary relationship, no recovery of economic damages in a negligence claim, no

existing fact was misrepresented, no justifiable reliance, no intent to deceive or not

perform, no duty to disclose, and no meeting of the minds) advance UMB’s defense

of the DTPA claim.

UMB’s attorneys were not required to keep separate time records when they

drafted the different sections of the motion for summary judgment or their reply to

InteliTrac’s response; “an opinion would have sufficed stating” the percentage of

drafting time spent on the arguments related to the DTPA claim. Id. at 314. UMB

attempted to do this by deducting 22% from the amount charged for each of the

discrete legal services for which it was seeking recovery (11% for the breach of

contract claim and 11% for the promissory estoppel claim). But the arguments

advanced in UMB’s motion for summary judgment to defeat InteliTrac’s DTPA

claim were not so intertwined that they could not be segregated from its arguments

relating to all the other claims. Instead, UMB’s arguments to defeat the DTPA were

unique to the DTPA and applied to no other claims, just as UMB’s arguments to

defeat specific elements of the other claims were unique to those claims and did not

apply to the DTPA claim. See, e.g., Kinsel, 526 S.W.3d at 427–28 (upholding court

of appeals determination that claims were distinct and fees must be segregated even

where the facts basically related to each cause of action because the facts necessary

–41– to prove each claim did not overlap where some claims addressed the status of the

decedent’s mental abilities and others depended on a showing that defendants made

false statements upon which plaintiffs relied).

Thus, more time and fees should have been subtracted from UMB’s attorneys’

work done on the motion for summary judgment and the reply motion. Also,

because InteliTrac nonsuited the DTPA claim at the summary judgment hearing, no

legal services performed at the hearing could have advanced UMB’s defense of the

DTPA claim. Therefore, it too should have been excluded from Tobin’s calculation.

Generally, we would end our inquiry with the conclusion that the party

seeking fees did not properly segregate them and remand the issue of attorney’s fees

to the trial court for reconsideration. See id. at 428; Chapa, 212 S.W.3d at 314

(“Unsegregated attorney’s fees for the entire case are some evidence of what the

segregated amount should be.”); Allan v. Nersesova, 307 S.W.3d 564, 573 (Tex.

App.—Dallas 2010, no pet.) (op. nunc pro tunc) (“The remedy for unsegregated

attorney’s fees is a new trial on the issue, not rendition of a take-nothing judgment

on the claim for attorney’s fees.”). However, the jury in this case did not award the

full amount of fees requested by UMB. Instead, the jury further subtracted

$226,486.21 from the $656,486.21 opined by Tobin. Our review of the evidence

shows that approximately $75,000 of that amount was for summary judgment related

tasks. Thus, even if UMB had not included any of its summary judgment work in

–42– its requested amount, the jury still reduced its requested fee amount by another

$153,339.14.

Because the jury found that UMB was entitled to attorney’s fees for less than

the amount Tobin opined was reasonable and necessary and less than the amount

accounting for the work that should have been further segregated from the summary

judgment related tasks, we cannot conclude that the jury’s finding of $430,000 was

for legal services performed that were not properly segregated.

As to InteliTrac’s general claim that the fees awarded were unreasonable and

unnecessary to defend against the DTPA claim, which was only active for seven

months, we must defer to the jury’s determination. See Kinsel, 526 S.W.3d at 427

(“The determination of reasonable and necessary attorneys fees is an issue generally

left to the trier of fact.”); Chapa, 212 S.W.3d at 313 (the amount of necessary fees

often turns on “judgment and credibility questions about who had to do what and

what it was worth”). At trial, InteliTrac presented no evidence of what specific

amount constituted a reasonable and necessary award. Although InteliTrac’s

counsel testified that one-ninth of the fees charged would be appropriate, we have

determined that many of the services performed did not require such segregation.

InteliTrac did not further challenge Tobin’s testimony as to the reasonable rates of

the attorneys or the amount of hours generally billed for the services. It was within

the jury’s province to weigh Tobin’s testimony and determine that $430,000 was a

reasonable and necessary amount of attorney’s fees for defending against the DTPA

–43– claim. Such award was supported by Tobin’s testimony and the detailed invoices

presented. Therefore, the jury’s finding, and the trial court’s award, of attorney’s

fees is supported by legally sufficient evidence. InteliTrac’s third issue is overruled.

Conclusion

Having overruled each of InteliTrac’s three issues on appeal, we affirm the

judgment of the trial court.

/Robert D. Burns, III/ ROBERT D. BURNS, III 220635F.P05 CHIEF JUSTICE

–44– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

INTELITRAC, INC., Appellant On Appeal from the 95th District Court, Dallas County, Texas No. 05-22-00635-CV V. Trial Court Cause No. DC-17-00035. Opinion delivered by Chief Justice UMB FINANCIAL Burns. Justices Carlyle and Kennedy CORPORATION, UMB BANK, participating. N.A., ZACH FEE, NICK ARTHACHINDA, AND KEVIN VON ATZIGEN, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees UMB FINANCIAL CORPORATION, UMB BANK, N.A., ZACH FEE, NICK ARTHACHINDA, and KEVIN VON ATZIGEN recover their costs of this appeal from appellant INTELITRAC, INC.

Judgment entered this 19th day of March 2024.

–45–