Shafer v. Frost National Bank, No. 14-06-00673-CV (Tex. App. 5/22/2008)
| Decision Date | 22 May 2008 |
| Docket Number | No. 14-06-00673-CV.,14-06-00673-CV. |
| Parties | SUSANA RAQUEL SHAFER AND CYNTHIA VICTORIA LENTINO, MARTA A. LENTINO INDIVIDUALLY, MARTA A. LENTINO AS ASSIGNEE OF FABIOLA VANESA LENTINO, MICHELLE MARIE LENTINO, NATALIA LENTINO, AND THE EDUARDO P. LENTINO CHILDREN'S TRUST AND MARTA A. LENTINO AS AGENT OF MARIA RAQUEL LENTINO, Appellants, v. FROST NATIONAL BANK F/K/A CULLEN CENTER BANK AND TRUST, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 281st District Court, Harris County, Texas, Trial Court Cause No. 99-09390.
Affirmed in Part, Reversed and Remanded in Part.
Panel consists of Justices FOWLER, FROST, and SEYMORE.
Appellants Susana Raquel Shafer, Cynthia Victoria Lentino, Marta A. Lentino Individually, Marta A. Lentino as assignee of Fabiola Vanesa Lentino, Michelle Marie Lentino, Natalia Lentino, and the Eduardo P. Lentino Children's Trust, and Marta A. Lentino as agent of Maria Raquel Lentino, (collectively, "the Lentinos") appeal from a take-nothing summary judgment in favor of appellee Frost National Bank f/k/a/ Cullen Center Bank and Trust ("Frost Bank").1 We affirm the judgment in favor of Frost Bank on all claims, and as against all parties, with the exception of Marta Lentino, individually, on her claim of fraudulent representation of the facts related to the merger between Cullen Center Bank and Trust ("Cullen Bank") and Frost Bank. As to Marta Lentino's claim (in Marta's individual capacity) of fraudulent representation of the facts related to the merger between Cullen Bank and Frost Bank, we reverse the trial court's judgment, sever that claim, and remand only that claim to the trial court for further proceedings.
This case has its genesis in the 1980s when Eduardo Lentino and Jorge Lentino obtained a series of loans from Frost Bank's predecessor, Cullen Bank. These loans and Eduardo's and Jorge's subsequent defaults have generated multiple lawsuits and appeals.
The 1991 lawsuit.
In 1991, Cullen Bank sued Eduardo, Jorge, and Marta based on Cullen Bank's post-judgment discovery of allegedly fraudulent transfers during the time the parties were executing compromise settlement agreements. The 1991 lawsuit generated two appeals to this court.2
The present lawsuit.
In 1999, multiple plaintiffs, including Marta, Cynthia Lentino, and Susana Shafer, initiated the case now under review. This case already has generated one appeal.3
The bill of review.
On February 20, 2004, while the present case was pending in the trial court after dismissal of the appeal, Marta and Eduardo, individually and as assignee of Jorge's claims, filed a petition for an equitable bill of review seeking to set aside the post-answer default judgment rendered in the 1991 case. The 2004 bill-of-review proceeding also has generated an appeal.4 The appellate opinions generated by the 2004 bill-of-review proceeding and the 1991 lawsuit contain detailed renditions of the history underlying the present lawsuit, and therefore we do not repeat the factual history here. See 2007 WL 2198827, at *1; 2002 WL 220421, at *1-5; 919 S.W.2d at 744-45. The procedural history of the present case is summarized in the previous appeal in this case.5 We now detail the contents of the pleadings for purposes of the instant appeal.
In their original petition in the present case, the Lentinos alleged wrongful seizure of property to satisfy the judgment in the 1991 lawsuit. Frost Bank answered with a general denial and asserted the plaintiffs' lack of entitlement to sue in the capacity in which they sued, defect of parties, limitations, claim preclusion, and issue preclusion. Frost Bank subsequently filed an "original counter-claim," alleging the Lentinos' pleadings were groundless and requesting attorneys' fees and costs as sanctions. The Lentinos then amended and supplemented their petition,6 alleging, inter alia, Frost Bank's purported lack of standing and insufficient evidence to show Frost Bank acquired the claims against the Lentinos. On May 24, 2001, the Lentinos moved to non-suit all their claims, and the only disputed issue at that point was Frost Bank's counterclaim for attorneys' fees and costs.
The Lentinos, however, filed on May 28, 2001, a "counter-counterclaim," in which they alleged the following "specific counter-counterclaims": violations of discovery rules, Frost Bank's "abuse and resistence to discovery," and infliction of undue hardship, malice and bad intent in shifting another party's liability for attorneys' fees to the Lentinos. In other parts of the same pleading, the Lentinos alleged (1) lack of proof of a consummated merger between Cullen Bank and Frost Bank and Frost Bank's resultant lack of standing and (2) Frost Bank's alleged fraud and misrepresentation of the date it learned of Eduardo's and Jorge's transfers of assets into two living trusts.
On June 1, 2001, the trial court granted the Lentinos' motion for non-suit of their claims. Ten days later, on June 11, 2001, the Lentinos filed a "first supplemental" to their counter-counterclaim.7 They alleged common law fraud and misrepresentation, referring to when Frost Bank allegedly knew of Eduardo's and Jorge's transfers.
On August 17, 2001, the court heard Frost Bank's motion for sanctions. The trial court found (1) Marta, in her capacity as trustee of the children's living trust, brought the action for an improper purpose and (2) the pleadings were filed on a groundless basis. The court then awarded Frost Bank attorneys' fees and $14,000 in sanctions.
Several months later, on January 18, 2002, Marta filed a "second supplemental" to her counter-counterclaim. She alleged common law fraud and misrepresentation based on Frost Bank's having portrayed itself as successor by merger to Cullen Bank and as the holder in due course of the notes. On the same date, Marta, individually, and as assignee of the claims of the Eduardo P. Lentino Children's Trust, Fabiola Vanesa Lentino and Michelle Marie Lentino, filed a "third supplemental" to her counter-counterclaim.8 She alleged conspiracy based on a Rule 11 agreement between Frost Bank and the other Lentinos.9
On January 28, 2002, Marta filed a "first amended claim and petition in re-intervention in her individual capacity." She alleged the following "affirmative causes of action" against Frost Bank: (1) common law fraud for obtaining a $5 million judgment on a non-existent debt; (2) malicious fraud for suing on a 1984 note when the suit was barred by limitations; (3) common law fraud for misrepresenting its standing as a successor by merger to Cullen Bank; (4) civil conspiracy to depict Marta as a "groundless pleader"; (5) malice and ill intent in obtaining an amendment of judgment in federal district court; and (6) civil conspiracy with the attorney for the E.P. Lentino Children's trust.10
On February 8, 2002, Marta, individually and as assignee of the Trust, Fabiola, Michelle, and Natalie, filed her "first supplemental to her amended claim and petition in reintervention in her individual capacity." Marta alleged the following "affirmative causes of action": (1) common law fraud, individually and as assignee, based on Frost Bank's (a) representation of its standing as successor by merger to Cullen Bank and (b) concealment and inconsistencies in its books; (2) negligence and contributory negligence by raising litigation costs and litigation fees; (3) civil conspiracy by precluding appeal; (4) malice in precluding appeal; and (5) estoppel by fraud and illegality based upon Frost Bank's allegedly not carrying the claims against the Lentinos on its books.11
On February 14, 2002, this court affirmed the trial court's post-answer default judgment in favor of Frost Bank in the 1991 case. On the same date, Frost Bank moved to non-suit its original counterclaim. A few days later, on February 18, 2002, the trial court granted Frost Bank's non-suit and entered an order striking the intervenor's claims.12 Marta appealed, and, on November 4, 2003, this court dismissed the appeal for want of jurisdiction because there was no order disposing of Marta's counter-counterclaims. See 159 S.W.3d at 652, 655.
Marta then filed four motions for summary judgment. She captioned the first as a combined no-evidence and "conventional" motion. She captioned the other three as no-evidence motions. She also filed a "second supplemental to her amended claim," in which she, individually and as assignee, (1) alleged fraudulent transfer of stock in violation of the Texas Uniform Fraudulent Transfer Act,13 (2) pleaded the discovery rule and estoppel to any limitations defense, and (3) alleged Frost Bank was not the holder in due course of Cullen Bank's claims.
The trial court denied Marta's summary-judgment motions. On November 22, 2005, Frost Bank filed a first amended motion for summary judgment. Marta filed objections, special exceptions, and a response to Frost Bank's motion.
After hearing argument, the trial court granted Frost Bank's motion for summary judgment, denied Marta's objections and special objections, and rendered final judgment disposing of all claims of all parties. Susana Shafer, Cynthia Lentino, and Marta Lentino, individually and as assignee and agent, have appealed from this judgment.
Three groups of appellants are before this court. They are (1) Marta, individually, pro se; (2) Marta as "assignee" of Fabiola, Michelle, Natalia, and the Trust, and as "agent" of Maria; and (3) Susana and Cynthia, each pro se.
As parties, Marta, Susana, and Cynthia may each appear in their own persons, and each may prosecute or defend her own rights. See TEX. R. CIV. P. 7. ("Any party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney of the court."). Because they are not attorneys, however, they may not represent others. See In re Moody, ...
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