COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00010-CV
MARGARET L. REY APPELLANT
V.
DAVID H. LEMING, PAIGE APPELLEES ANDERS LEWIECKI, AND THE COLANERI FIRM, P.C.
----------
FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
I. INTRODUCTION
This is a summary judgment appeal. The trial court granted two summary
judgments, one for Appellee David H. Leming on all claims asserted against him
by Appellant Margaret L. Rey and one for Appellees Paige Anders Lewiecki and
1 See Tex. R. App. P. 47.4. the Colaneri Firm, P.C on all claims asserted against them by Rey. For the
reasons set forth below, we will affirm the trial court’s summary judgments.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Rey’s Prior Lawsuit
Rey filed a personal injury suit against Leming as a result of a car accident
between Rey and Leming. The case proceeded to a jury trial. Leming was
represented by attorney Lewiecki, who was employed by the Colaneri Firm. In
response to the damages question in the trial court’s charge, the jury found that
$2,000 would compensate Rey for medical expenses that she incurred in the
past as a result of the occurrence in question. The jury found no other damages.
On April 18, 2006, Rey filed a motion for judgment notwithstanding the verdict,
alleging that she was entitled to judgment in the amount of $34,265, plus
prejudgment interest and costs. The trial court signed a September 1, 2006
judgment awarding Rey $2,000 in damages for medical care that she had
sustained in the past. The judgment did not contain an award of costs or
prejudgment interest.
On September 20, 2006, Rey filed a motion for new trial, again alleging
that she was entitled to $34,265 in damages and requesting the trial court to
―GRANT this Motion For New Trial and return this case to the trial docket so that
the Court can then rule on Plaintiff’s Motion for Judgment N.O.V.‖ Rey attached
a copy of the trial court’s judgment to her motion for new trial but did not assert
any objections to the trial court’s judgment. Nor did Rey file a motion to modify
2 the trial court’s judgment. Rey’s motion for new trial was overruled by operation
of law, and the trial court’s plenary power over its judgment subsequently
expired.
B. Rey’s Current Lawsuit
Rey then filed the present suit against Leming, against Leming’s lawyer in
the prior suit––Lewiecki, and against the Colaneri Firm––as Lewiecki’s employer.
Rey alleged that, in the prior suit, Lewiecki and the Colaneri Firm had submitted
a judgment to the trial court that did not award Rey costs or prejudgment interest
and had fraudulently induced the trial court to sign it by including a false
certificate of conference with the proposed judgment. The certificate of
conference submitted by Lewiecki and the Colaneri Firm stated that a conference
was not held with Rey’s counsel Frank Hernandez concerning the judgment
because, although Lewiecki had attempted to contact Hernandez numerous
times concerning an agreed judgment, Hernandez had failed to provide a
proposed judgment, had failed to respond to correspondence Lewiecki had sent
to him, and had failed to call her to discuss the proposed judgment after she had
sent it to him. Rey’s petition in the current lawsuit alleges that ―Lewiecki has
committed a deliberate fraud on the Court in that she swore in a Certificate of
Conference to the Court on or about April 18, 2006, that Plaintiff’s attorney had
failed and/or refused to agree to the form and content of a proposed Judgment.‖
Rey pleaded no causes of action other than the alleged fraud by Lewiecki and
the Colaneri Firm.
3 Lewiecki and the Colaneri Firm filed a traditional motion for summary
judgment. Leming filed a no-evidence motion for summary judgment. After a
hearing, the trial court granted Lewiecki and the Colaneri Firm’s motion for
summary judgment without stating the grounds on which it was granted. The trial
court later granted Leming’s motion for summary judgment and entered a final
judgment in the case. Rey perfected this appeal raising two issues, claiming that
the trial court abused its discretion by granting the summary judgments.
III. STANDARD OF REVIEW
A. Traditional Summary Judgment
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P.
166a(b), (c).
4 When a trial court’s order granting summary judgment does not specify the
ground or grounds relied on for its ruling, summary judgment will be affirmed on
appeal if any of the theories presented to the trial court and preserved for
appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473
(Tex. 1995).
B. No-Evidence Summary Judgment
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the
elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the
nonmovant produces summary judgment evidence that raises a genuine issue of
material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d
425, 426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168
5 S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not.
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-11-00010-CV
MARGARET L. REY APPELLANT
V.
DAVID H. LEMING, PAIGE APPELLEES ANDERS LEWIECKI, AND THE COLANERI FIRM, P.C.
----------
FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION1 ----------
I. INTRODUCTION
This is a summary judgment appeal. The trial court granted two summary
judgments, one for Appellee David H. Leming on all claims asserted against him
by Appellant Margaret L. Rey and one for Appellees Paige Anders Lewiecki and
1 See Tex. R. App. P. 47.4. the Colaneri Firm, P.C on all claims asserted against them by Rey. For the
reasons set forth below, we will affirm the trial court’s summary judgments.
II. FACTUAL AND PROCEDURAL BACKGROUND
A. Rey’s Prior Lawsuit
Rey filed a personal injury suit against Leming as a result of a car accident
between Rey and Leming. The case proceeded to a jury trial. Leming was
represented by attorney Lewiecki, who was employed by the Colaneri Firm. In
response to the damages question in the trial court’s charge, the jury found that
$2,000 would compensate Rey for medical expenses that she incurred in the
past as a result of the occurrence in question. The jury found no other damages.
On April 18, 2006, Rey filed a motion for judgment notwithstanding the verdict,
alleging that she was entitled to judgment in the amount of $34,265, plus
prejudgment interest and costs. The trial court signed a September 1, 2006
judgment awarding Rey $2,000 in damages for medical care that she had
sustained in the past. The judgment did not contain an award of costs or
prejudgment interest.
On September 20, 2006, Rey filed a motion for new trial, again alleging
that she was entitled to $34,265 in damages and requesting the trial court to
―GRANT this Motion For New Trial and return this case to the trial docket so that
the Court can then rule on Plaintiff’s Motion for Judgment N.O.V.‖ Rey attached
a copy of the trial court’s judgment to her motion for new trial but did not assert
any objections to the trial court’s judgment. Nor did Rey file a motion to modify
2 the trial court’s judgment. Rey’s motion for new trial was overruled by operation
of law, and the trial court’s plenary power over its judgment subsequently
expired.
B. Rey’s Current Lawsuit
Rey then filed the present suit against Leming, against Leming’s lawyer in
the prior suit––Lewiecki, and against the Colaneri Firm––as Lewiecki’s employer.
Rey alleged that, in the prior suit, Lewiecki and the Colaneri Firm had submitted
a judgment to the trial court that did not award Rey costs or prejudgment interest
and had fraudulently induced the trial court to sign it by including a false
certificate of conference with the proposed judgment. The certificate of
conference submitted by Lewiecki and the Colaneri Firm stated that a conference
was not held with Rey’s counsel Frank Hernandez concerning the judgment
because, although Lewiecki had attempted to contact Hernandez numerous
times concerning an agreed judgment, Hernandez had failed to provide a
proposed judgment, had failed to respond to correspondence Lewiecki had sent
to him, and had failed to call her to discuss the proposed judgment after she had
sent it to him. Rey’s petition in the current lawsuit alleges that ―Lewiecki has
committed a deliberate fraud on the Court in that she swore in a Certificate of
Conference to the Court on or about April 18, 2006, that Plaintiff’s attorney had
failed and/or refused to agree to the form and content of a proposed Judgment.‖
Rey pleaded no causes of action other than the alleged fraud by Lewiecki and
the Colaneri Firm.
3 Lewiecki and the Colaneri Firm filed a traditional motion for summary
judgment. Leming filed a no-evidence motion for summary judgment. After a
hearing, the trial court granted Lewiecki and the Colaneri Firm’s motion for
summary judgment without stating the grounds on which it was granted. The trial
court later granted Leming’s motion for summary judgment and entered a final
judgment in the case. Rey perfected this appeal raising two issues, claiming that
the trial court abused its discretion by granting the summary judgments.
III. STANDARD OF REVIEW
A. Traditional Summary Judgment
We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,
315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the
light most favorable to the nonmovant, crediting evidence favorable to the
nonmovant if reasonable jurors could, and disregarding evidence contrary to the
nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,
Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively
negates at least one essential element of a cause of action is entitled to
summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d
494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P.
166a(b), (c).
4 When a trial court’s order granting summary judgment does not specify the
ground or grounds relied on for its ruling, summary judgment will be affirmed on
appeal if any of the theories presented to the trial court and preserved for
appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128
S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473
(Tex. 1995).
B. No-Evidence Summary Judgment
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the
elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the
nonmovant produces summary judgment evidence that raises a genuine issue of
material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d
425, 426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168
5 S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the
nonmovant brings forward more than a scintilla of probative evidence that raises
a genuine issue of material fact, then a no-evidence summary judgment is not
proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004).
IV. APPLICATION OF THE LAW TO THE PRESENT FACTS
A. Summary Judgment for Lewiecki and the Colaneri Firm
As set forth above, Rey pleaded that, ―Lewiecki has committed a deliberate
fraud on the Court in that she swore in a Certificate of Conference to the Court
on or about April 18, 2006, that Plaintiff’s attorney had failed and/or refused to
agree to the form and content of a proposed Judgment.‖ Also as set forth above,
the certificate of conference submitted by Lewiecki and the Colaneri Firm stated
that a conference was not held with Rey’s counsel Frank Hernandez concerning
the judgment because, although Lewiecki had attempted to contact Hernandez
numerous times concerning an agreed judgment, Hernandez had failed to
provide a proposed judgment, had failed to respond to correspondence Lewiecki
had sent to him, and had failed to call her to discuss the proposed judgment after
she had sent it to him.
6 Lewiecki and the Colaneri Firm moved for a traditional summary judgment
on several grounds, including the grounds that they had conclusively negated the
first element of actionable fraud––the failure to disclose a material fact––and that
they had conclusively negated the first element of fraud––a material
misrepresentation. Lewiecki and the Colaneri Firm attached the following
summary judgment evidence to their motion:
Exhibit B: Affidavit of Janet Colaneri and a March 21, 2006 letter from Janet Colaneri to Rey’s counsel, Hernandez, ―Re: I am inquiring as to the status of the Judgment.‖
Exhibit C: Affidavit of Paige Lewiecki and an April 11, 2006 letter from Paige Lewiecki to Rey’s counsel, Hernandez, ―Re: Forwarding proposed judgment.‖
Exhibit G: Affidavit of Paige Lewiecki and a September 1, 2006 letter to the trial court, ―Re: Forwarding proposed judgment.‖
Exhibit J: Affidavit of Paige Lewiecki and a September 5, 2006 letter from Paige Lewiecki to Rey’s counsel, Hernandez, ―Re: Forwarding signed judgment.‖
Rey’s controverting summary judgment evidence consisted of Hernandez’s
affidavit, swearing that he did not have a phone conversation with Paige
Lewiecki, and Lewiecki’s deposition, setting out the details of her
correspondence with Hernandez, Hernandez’s failure to draft a proposed
judgment, and Hernandez’s failure to respond with corrections or suggestions to
her proposed judgment.
To constitute fraud, a statement must be false. Wal-Mart Stores, Inc. v.
Sturges, 52 S.W.3d 711, 727 (Tex. 2001). Viewing all of the summary judgment
7 evidence in the light most favorable to Rey as the nonmovant, the summary
judgment evidence conclusively establishes that Lewiecki did not make any false
statement in the certificate of conference she included with the proposed
judgment. Because the summary judgment evidence conclusively negates the
first element of Rey’s fraud claim––the failure to disclose a material fact or the
making of a material misrepresentation, the trial court did not err by granting
summary judgment for Lewiecki and the Colaneri Firm. See Randall’s Food
Markets, Inc. v. Johnson, 943 S.W.2d 640, 644 (Tex. 1995) (holding defendant’s
summary judgment evidence conclusively negated extreme-and-outrageous-
conduct element of plaintiff’s intentional infliction of emotional distress claim).
Because we affirm the trial court’s summary judgment for Lewiecki and the
Colaneri Firm on this ground, we need not address Rey’s challenges to any other
grounds for summary judgment raised in Lewiecki and the Colaneri Firm’s motion
for summary judgment. Knott, 128 S.W.3d at 216, 222. We overrule Rey’s
issues complaining that the trial court abused its discretion by granting summary
judgment for Lewiecki and the Colaneri Firm.
B. Summary Judgment for Leming
On appeal, Rey does not raise or brief any complaints concerning the
summary judgment granted for Leming. Accordingly, any error in this ruling by
the trial court has been waived through inadequate briefing. See Tex. R. App. P.
38.1(h), (i); Town of Flower Mound v. Teague, 111 S.W.3d 742, 766 (Tex. App.—
Fort Worth 2003, pet. denied). We affirm the trial court’s no-evidence summary
8 judgment granted for Leming.
V. CONCLUSION
Having addressed both of Rey’s issues claiming that the trial court abused
its discretion by granting summary judgment for Lewiecki and the Colaneri Firm,
and having determined that Rey waived through inadequate briefing any
complaint concerning the summary judgment granted for Leming, we affirm the
trial court’s summary judgments.
SUE WALKER JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.
DELIVERED: October 27, 2011