Fisher v. Yates, 06-96-00098-CV

Citation953 S.W.2d 370
Decision Date18 July 1997
Docket NumberNo. 06-96-00098-CV,06-96-00098-CV
PartiesSam FISHER, Edith Fisher d/b/a Fisher's Truck World, Bill McNatt, Connie Matika, and Gale Fisher Huggins, Appellants, v. Jim YATES and FirstBank of Texarkana, Appellees.
CourtCourt of Appeals of Texas

Page 370

953 S.W.2d 370
Sam FISHER, Edith Fisher d/b/a Fisher's Truck World, Bill
McNatt, Connie Matika, and Gale Fisher Huggins, Appellants,
v.
Jim YATES and FirstBank of Texarkana, Appellees.
No. 06-96-00098-CV.
Court of Appeals of Texas,
Texarkana.
Submitted June 3, 1997.
Decided July 18, 1997.

Opinion OverrulingRehearing Oct. 10, 1997.

Page 373

Jack N. Price, Austin, for appellants.

Hermann Ivester, Ivester, Skinner, Camp, Little Rock, AR, William C. Gooding, Gooding & Dodson, Texarkana, for appellee First Bank.

Steven W. Caple, George L. McWilliams, Patton, Haltom, Roberts, Texarkana, for appellee Jim Yates.

Before CORNELIUS, C.J., and GRANT and ROSS, JJ.

OPINION

CORNELIUS, Chief Justice.

Sam Fisher, Edith Fisher, Bill McNatt, Connie Matika, and Gale Fisher Huggins, 1 appeal from an adverse summary judgment rendered in their suit against Jim Yates, FirstBank of Texarkana, Gene Wyatt, and Ron Walker, seeking damages for fraudulent representation, fraudulent concealment, statutory fraud, and conspiracy. Because we find that Edith Fisher's, Connie Matika's, and Gale Fisher Huggins's conspiracy claims were filed after the applicable two-year statute of limitations had expired, we affirm the summary judgment for Yates and FirstBank on these claims. We also affirm the summary

Page 374

judgment for Wyatt and Walker. We reverse the summary judgment for Yates and FirstBank on Fisher's and McNatt's fraud and conspiracy allegations. Those claims are severed and remanded to the district court for trial.

Sam Fisher owns and operates a used car/truck business in Texarkana, Texas. Edith Fisher is his wife. Connie Matika and Gale Fisher Huggins are his daughters. Fisher conducted most of his banking business with FirstBank. Over a period of years, Fisher purchased 1,734 shares of FirstBank stock. Bill McNatt is also in the used car/truck business and used FirstBank for most of his banking services. McNatt purchased 1,004 shares of FirstBank stock over the years.

Jim Yates purchased McNatt's 1,004 shares of FirstBank stock in November 1992 for $50.00 per share, and he purchased Fisher's 1,734 shares in June 1993 for $57.67 per share. In July 1994, FirstBank was acquired by First United. The Fisher group alleges that Yates was aware of the impending sale of FirstBank when he purchased McNatt's and Fisher's stock. In the sale of FirstBank to First United, Yates received $241.00 for each share he owned in FirstBank, realizing a net profit in excess of $515,000.00 on the stock he purchased from Fisher and McNatt.

Fisher and McNatt contend that Yates fraudulently induced them to sell their FirstBank stock. They allege that Yates told Fisher in late fall 1992 that Gene Wyatt, FirstBank's chairman, was considering "kicking Fisher out" of the bank, meaning that FirstBank was going to stop doing business with him. Yates also allegedly told Fisher that the bank had scheduled a board of directors meeting to discuss the issue. Fisher further contends that Yates told him that if he sold his FirstBank stock to him, he would use his influence as a director to ensure that FirstBank would continue doing business with Fisher. Fisher also alleges that Yates encouraged him to persuade McNatt to sell his FirstBank stock to Yates. Fisher told McNatt about Yates's statements.

On October 31, 1994, Fisher and McNatt filed suit against Yates, FirstBank, Wyatt, and Ron Walker 2 alleging that Yates engaged in fraudulent representations, fraudulent concealment, and statutory fraud 3 and that FirstBank, Wyatt, and Walker acted in "concert, combination, and conspiracy" with Yates in the acquisition of Fisher's and McNatt's FirstBank stock.

On June 28, 1995, Wyatt, Walker, and FirstBank filed a motion for summary judgment. The trial court granted summary judgment as to Wyatt and Walker, but denied it as to FirstBank. Yates and FirstBank subsequently filed separate summary judgment motions. The trial court granted these motions, ordering that the Fisher group take nothing.

We first consider whether we have jurisdiction of this appeal. We conclude that we do.

Texas appellate courts have jurisdiction only over final judgments. Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex.1985). There can be only one final judgment. TEX.R. CIV. P. 301. A judgment is final for purposes of appellate jurisdiction if it disposes of all issues and parties in a case and no further action is required to determine the controversy. Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 692 (Tex.1986); North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex.1966). If a summary judgment order appears to be final and disposes of all claims or parties, the judgment should be treated as final for purposes of appeal. Inglish v. Union State Bank, 945 S.W.2d 810, 810-11 (Tex.1997); Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex.1993).

There are two judgments in this case. The first one, dated September 7, 1995 and entitled "Judgment," was rendered in response to Wyatt, Walker, and FirstBank's summary judgment motion. The judgment dismisses with prejudice Fisher and McNatt's claims against Wyatt and Walker in their individual capacity and orders that

Page 375

"the plaintiffs recover nothing from Gene D. Wyatt or Ron Walker." The judgment denied FirstBank's request for summary judgment. No severance was ordered. The second judgment, rendered on October 22, 1996 and entitled "Final Summary Judgment," was issued in response to Yates's and FirstBank's summary judgment motions. The judgment dismisses the Fisher group's claims against Yates and FirstBank and orders that they take nothing against the defendants. The second order makes no reference to the first order.

The first order, granting summary judgment to Wyatt and Walker but denying it to FirstBank, was interlocutory. It became final, however, when the second judgment was entered disposing of the remaining defendants. See, e.g., H.B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex.1963); Ramones v. Bratteng, 768 S.W.2d 343, 344 (Tex.App.--Houston [1st Dist.] 1989, writ denied).

The second judgment makes no reference to the first order, but it is not necessary that all parties and issues be disposed of in a single document. Mafrige v. Ross, 866 S.W.2d at 591 n. 5. The language of the second judgment purports to be final and disposes of all remaining issues and parties in this action. As such, it operates as a final and appealable judgment.

The Fisher group's first point of error merely asserts that the trial court erred in granting the defendants' summary judgment motions. There is no citation of authority under the point and, for that reason, it could be considered waived. But the second point of error addresses the same issue and it is adequately briefed, so it will be duly considered.

The Fisher group contends in its second point that the trial court erred in granting summary judgment because the evidence raised issues of fraud, conspiracy, and injury, and the claims are not barred by the statute of limitations.

In reviewing a summary judgment, we must determine whether the moving party has met its burden of establishing that there is no genuine issue of material fact between the parties and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Lawrence v. Lawrence, 911 S.W.2d 443, 446 (Tex.App.--Texarkana 1995, writ denied).

A defendant moving for summary judgment must disprove at least one of the essential elements of each cause of action alleged by the plaintiff to be entitled to summary judgment. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). A defendant must only meet the plaintiff's case as pleaded. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex.1976).

Once the movant has established a right to summary judgment, the nonmovant must respond by presenting to the trial court summary judgment evidence raising a material fact issue, thereby precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Christensen v. Sherwood Ins. Servs., 758 S.W.2d 801, 804 (Tex.App.--Texarkana 1988, writ denied). Grounds supporting or opposing summary judgment must be raised in the motion or written response. Maintenance, Inc. v. ITT Hartford Group, Inc., 895 S.W.2d 816, 820 (Tex.App.--Texarkana 1995, writ denied).

Given the interaction among the parties and the Fisher group's causes of action, we will first address the merits of their assertions as they apply to Yates.

Yates initially asserts that the Fisher group's second point of error does not apply to him. He contends that the error relates exclusively to the viability of a civil conspiracy claim against Wyatt, Walker, and FirstBank. We disagree. The second point of error states, "The trial court erred in rendering judgment against the appellants because the summary judgment proof raised issues of fraud, conspiracy, and injury to the plaintiffs." The plain language of the error applies to all of the defendants.

Yates attached to his summary judgment motion affidavits in which he denies that he had any advance knowledge of the potential sale of FirstBank, denies that he pressured or otherwise coerced Fisher to sell his stock,

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and asserts that he paid Fisher and McNatt a fair price for their FirstBank stock.

The Fisher group filed a response to Yates's summary judgment motions, but the response did not attach, nor was it accompanied by, summary judgment evidence supporting the facts alleged in the response. A response to a summary judgment motion is a pleading and does not, standing alone, constitute competent summary judgment evidence. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d at 678; Hidalgo v. Surety Sav. & Loan Ass'n, 462 S.W.2d 540, 543 (Tex.1971); Washington v. City of Houston, 874 S.W.2d 791, 794 (Tex.App.--Texarkana 1994,...

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