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Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed May 22, 2008.

 

 

In The

 

Fourteenth Court of Appeals

____________

 

NO. 14-06-00673-CV

____________

 

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

 

 

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 99-09390

 

 

M E M O R A N D U M  O P I N I O N


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, Athe Lentinos@) appeal from a take-nothing summary judgment in favor of appellee Frost National Bank f/k/a/ Cullen Center Bank and Trust (AFrost 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 (ACullen 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.

I.  Factual and Procedural Background

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 *1B5; 919 S.W.2d at 744B45.  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 Aoriginal 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 Acounter-counterclaim,@ in which they alleged the following Aspecific counter-counterclaims@:  violations of discovery rules, Frost Bank=s Aabuse 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 Afirst 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 Asecond 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 Athird 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 Afirst amended claim and petition in re-intervention in her individual capacity.@  She alleged the following Aaffirmative 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 Agroundless 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 Afirst supplemental to her amended claim and petition in reintervention in her individual capacity.@  Marta alleged the following Aaffirmative 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 Aconventional@ motion.  She captioned the other three as no-evidence motions.  She also filed a Asecond 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 Aassignee@ of Fabiola, Michelle,  Natalia, and the Trust, and as Aagent@ of Maria; and (3) Susana and Cynthia, each pro se.

                                       II.  The Pro Se Appellants

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.  (AAny 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, 105 B.R. 368, 370 (S.D. Tex. 1989) (stating unlicensed non-attorneys are not permitted to represent anyone other than themselves).  Thus, Marta, who is not licensed to practice law, may not represent or defend the rights of Maria, Susana, or Cynthia.


Under the circumstances presented in this case, Marta also may not pursue the assigned claims of Fabiola, Michelle, Natalia, and the Trust, all of whom assigned their claims to Marta in exchange for the right to receive 85% of any recovery by Marta.  The assignment documents contain language indicating that Marta, a nonlawyer, will be representing the assignors herself in prosecuting the assigned claims.  Marta would be engaging in the unauthorized practice of law if she were allowed to pursue the assigned claims under these circumstances.  See Brown v. Unauthorized Practice of Law Comm=n, 742 S.W.2d 34, 42 (Tex. App.CDallas 1987, writ denied) (AEntering into contracts with persons to represent them in their personal injury and/or property damage matters on a contingent fee together with an attempted assignment of a portion of the person=s claim involves the practice of law.@); Gray v. Estell, No. 05-98-01785-CV, 2001 WL 279181, at *3 (Tex. App.CDallas Mar. 22, 2001, no pet.) (not designated for publication) (upholding trial court=s determination that assignment of action was used to aid appellant in unauthorized practice of law and concluding trial court therefore had power to disregard assignment and exclude appellee from participation in lawsuit); Iowa Supreme Court Comm=n on Unauthorized Practice of Law v. A-1 Assocs., Ltd., 623 N.W.2d 803, 808 (Iowa 2001) (holding assignment was not a bona fide assignment permitting assignee=s pro se representation when assignor retained interest in underlying debt).  A person may not engage in the unauthorized practice of law.  See Tex. Penal Code Ann. ' 38.123 (Vernon 2003).[14]  Accordingly, we consider Marta=s arguments only to the extent these arguments relate to her own claims or rights.  We do not consider any arguments made in Marta=s purported capacity as agent or assignee and pertaining solely to the rights or claims of persons other than Marta.  Cf. Jimison v. Mann, 957 S.W.2d 860, 861 (Tex. App.CAmarillo 1997, no writ) (per curiam) (striking documents filed by layperson having no authority to file them on behalf of another).


Susana and Cynthia, although appearing pro se, have adopted the brief and reply brief of Marta, Ain her capacity as Assignee@ of Fabiola=s, Michelle=s, and Natalia=s claims.[15]  AAny party may join in or adopt by reference all or any part of a brief, petition, response, motion, or other document filed in an appellate court by another party in the same case.@  Tex. R. App. P. 9.7.  As discussed above, however, we do not consider Marta=s arguments as they relate solely to the claims of  Fabiola, Michelle, and Natalia.  With these limitations in mind, we proceed to the merits of the appeal.

III.  Issues and Analysis

A.      Did the trial court err in granting Frost Bank=s summary-judgment motion?

 


In her first, second, third, fifth, sixth, ninth, and twelfth issues, Marta challenges the trial court=s grant of Frost Bank=s motion for summary judgment and the denial of her own motions for summary judgment.[16]  Although Marta raised numerous claims in multiple pleadings in the trial court, a liberal reading of her appellate argument in support of these seven issues indicates she is challenging the judgment against her based on the following fraudulent-representation claims:  (1) Frost Bank fraudulently established its standing in the 1991 suit by representing it had merged with Cullen Bank and had acquired Cullen Bank=s interest in the defaulted loans, and (2) Frost Bank fraudulently represented it first learned of Eduardo=s and Jorge=s transfers of assets to the living trusts in 1991.[17]  Frost Bank presented traditional summary-judgment arguments in response to these claims, asserting claim preclusion and issue preclusion barred both claims.[18]


In reviewing a traditional summary judgment, we consider whether the successful movant at the trial level carried its burden of showing there is no genuine issue of material fact and judgment should be granted as a matter of law.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). To be entitled to summary judgment, a defendant conclusively must negate at least one essential element of each of the plaintiff=s claims or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  If the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment.  M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court=s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence.  Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).  When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

In its summary-judgment motion, Frost Bank contended the doctrines of claim preclusion and issue preclusion barred Marta=s claims of Afraudulent establishment of standing@ and fraudulent representation of Frost Bank=s knowledge of when it first learned of Jorge=s and Eduardo=s transfers of assets to the trusts.  The general doctrine of res judicata encompasses two principal categories:  (1) claim preclusion (also known as res judicata);  and (2) issue preclusion (also known as collateral estoppel).  Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992).  Claim preclusion and issue preclusion are affirmative defenses, and the party asserting either such defense therefore has the burden of pleading and proving the elements of the asserted defense.  Welch v. Hrabar, 110 S.W.3d 601, 606 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).


A party asserting claim preclusion must establish the following elements:  (1) a prior final judgment on the merits by a court of competent jurisdiction;  (2) identity of parties or those in privity with them;  and (3) a second action based on the same claims that were raised or could have been raised in the first action.  Id.  A party asserting issue preclusion must establish (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action;  and (3) the parties were cast as adversaries in the first action.  Id.  Strict mutuality of parties is not required.  Id. at 607.  In short, claim preclusion prevents the relitigation of adjudicated claims or claims that could have been raised, and issue preclusion bars the relitigation of adjudicated essential facts.  Id.

Frost Bank submitted the following summary-judgment proof to support its defenses of claim preclusion and issue preclusion:  (1) the February 29, 2000 post-answer default judgment and final order of severance in the 1991 case, (2) the trial court=s order of severance, (3) the February 14, 2002 opinion of this court affirming the judgment, and (4) the supreme court order denying the petition for review.  In the February 29, 2000 judgment, the trial court assumed Frost Bank=s merger with Cullen Bank, but the document is silent on whether the issue was litigated in the trial court (e.g., AFrost National Bank, National Banking Association successor to Cullen Center Bank & Trust, has proved its damages . . . .@).  According to this court=s February 14, 2002 opinion, however, the pleadings in the trial court included Aa plea in abatement alleging Frost Bank=s lack of >standing,= to act as a successor to Cullen.@  2002 WL 220421, at *4.  On appeal, Marta initially argued the trial court Aerred in not ruling on [the] motion to abate, which alleged Frost Bank had not demonstrated its >standing= to sue.@  Id. at *8.  In her reply brief, however, Marta stated she was discussing Alack of capacity,@ and this court construed her argument to be addressed to Frost Bank=s capacity to sue, rather than its standing.  Id.

In support of her sixth issue, Marta argues in part, AWhen material facts have changed or facts were concealed[,] a judgment can not be res judicata as to a subsequent action the rationale being that no judgment can affect subsequent arising rights and duties of the parties.@  In her response to Frost Bank=s summary-judgment motion, Marta alleged Frost Bank was Anot addressing that the lack of opportunity to litigate in the initial action (by Marta only) is due among others [sic] to the concealment of material information by Frost.@


The merger/standing claim.  There is nothing in Frost Bank=s summary-judgment proof conclusively establishing the third element of claim preclusion, i.e., that Marta litigated a claim of fraudulent representation regarding merger (and thus standing) or that she could have raised such a claim in the 1991 lawsuit.[19]  As to issue preclusion, the summary-judgment record contains no proof conclusively establishing that the facts relevant to fraudulent representation of standing were fully and fairly litigated in the 1991 lawsuit.[20]  We therefore conclude the trial court erred in granting summary judgment against Marta on her claim of Frost Bank=s fraudulent representation of facts underlying the issue of the merger as it relates to standing.


Frost Bank=s discovery of the transfers.  The judgment in the 1991 lawsuit contains the trial court=s finding that Frost Bank/Cullen Bank Adid not discover nor in the reasonable exercise of diligence should have discovered the Lentinos= fraud, fraudulent transfers, and breach of contract [of Eduardo and Jorge Lentino] on or prior to May 3, 1987.@  Thus, the issue of when Frost Bank learned of the alleged fraudulent transfers was litigated in the 1991 lawsuit, and the court=s findings do not reflect any reliance on an alleged misrepresentation that Frost Bank did not learn of the transfers until 1991.[21]  Frost Bank conclusively established its defense of issue preclusion in relation to this issue.  We therefore conclude the trial court did not err in granting summary judgment against Marta on her claim of Frost Bank=s allegedly fraudulent representation of when it discovered the transfers.

In sum, we conclude Frost Bank did not conclusively establish its affirmative defenses of either claim preclusion or issue preclusion in relation to Marta=s claim that Frost Bank fraudulently represented the facts regarding the merger between Cullen Bank and Frost Bank.  The trial court therefore erred in granting summary judgment against Marta and for Frost Bank on that claim, and we sustain Marta=s sixth issue only as it relates to that claim.  We overrule Marta=s sixth issue as it relates to any other claim against Frost Bank.

We conclude that the summary-judgment proof did not conclusively establish any of the matters that Marta asserts were conclusively proved in her first and third issues.[22]  Accordingly, we overrule Marta=s first and third issues.


Because we hold Frost Bank did not conclusively establish its defenses of claim preclusion or issue preclusion on Marta=s claim that Frost Bank fraudulently represented the facts related to the merger between Cullen Bank and Frost Bank, we have sustained Marta=s sixth issue solely as it relates to that claim.  We therefore need not address Marta=s second and fifth issues, which involve only that claim.  Likewise, we need not address her ninth and twelfth issues as they relate to that claim.  We overrule Marta=s ninth and twelfth issues as they relate to Marta=s claim that Frost Bank fraudulently represented when it learned of Jorge=s and Eduardo=s transfers of assets to the trusts.

B.      Do material fact issues exist precluding summary judgment (issues nine and twelve)?

 

In her ninth and twelfth issues, Marta argues material fact issues exist regarding (1) whether Frost Bank had consummated its merger with Cullen Bank, (2) the extent of the Lentinos= damages, (3) whether transfer of Frost Bank=s stock to Cullen BLP, Inc. left Frost Bank with unreasonably small capital, and (4) what punitive damages are to be assessed for false statements asserted by Frost Bank that it did not learn of the transfer of assets to the E.L. and J. L. York Plaza Living Trusts until it took Eduardo Lentino=s deposition in 1991.  Marta then contends the trial court erred in granting summary judgment (issue nine) and denying her a jury trial (issue twelve).

Because we have reversed and remanded Marta=s claim of fraudulent representation of facts establishing merger, we do not address alleged fact issues one and two.  Because we have concluded Frost Bank conclusively established its defense of issue preclusion in relation to discovery of Eduardo=s and Jorge=s transfers of assets, we overrule Marta=s ninth and twelfth issues in relation to alleged fact issue four. 

We now address alleged fact issue three, which is based on Marta=s Asecond supplemental to her amended claim against Frost,@ filed in September 2005.  In that pleading, Marta alleged Frost Bank fraudulently transferred stock in 2000 to Cullen BLP in violation of the Texas Uniform Fraudulent Transfer Act.[23]  In its summary-judgment motion, Frost Bank invoked Marta=s representation that Frost Bank=s stock was reconveyed to Cullen/Frost Bankers, Inc., at the end of 2003.  The Uniform Fraudulent Transfer Act provides the following remedies:


(a) In an action for relief against a transfer or obligation under this chapter, a creditor, subject to the limitations in Section 24.009 of this code, may obtain:

(1) avoidance of the transfer or obligation to the extent necessary to satisfy the creditor=s claim;

(2) an attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the applicable Texas Rules of Civil Procedure and the Civil Practice and Remedies Code relating to ancillary proceedings;  or

(3) subject to applicable principles of equity and in accordance with applicable rules of civil procedure:

(A) an injunction against further disposition by the debtor or a transferee, or both, of the asset transferred or of other property;

(B) appointment of a receiver to take charge of the asset transferred or of other property of the transferee;  or

(C) any other relief the circumstances may require.

(b) If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred or its proceeds.

 

Tex. Bus. & Com. Code Ann. ' 24.008 (Vernon 2002).  If, as represented by Marta, the stock that was allegedly fraudulently transferred by Frost Bank in 2000, was reconveyed back to Frost Bank at the end of 2003, then, as a matter of law, there is no remedy available for the alleged fraudulent transfer.  See id

To the extent we address the purported material fact issues Marta lists in her ninth and twelfth issues, we overrule those issues.

C.      Did the trial court incorrectly rule on Marta=s special exceptions (issues four, seven, and eight)?

 


In issue four Marta contends A[t]he trial court erred in denying LENTINO=s timely objections and special exceptions to FROST=s first amended motion for summary judgment.@  Marta presents no argument in support of this issue.  Marta=s briefing on this point is deficient and thus she has waived this alleged error on appeal.  Tex. R. App. P. 38.1(h) (requiring appellant=s brief to contain clear and concise argument for contentions made, with appropriate citations to authorities and record); Sterling v. Alexander, 99 S.W.3d 793, 799 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).  We overrule Marta=s fourth issue.

In issue seven, Marta contends the trial court erred Ain granting summary judgment in the absence of special exceptions to Appellants= pleadings and disregarding FROST needed to conclusively establish the absence of any genuine question of material fact in order to be entitled to judgment as a matter of law.@  In issue eight, Marta contends the trial court erred Ain granting a no cause of action summary judgment without giving Appellants non movants adequate opportunity to amend to plead a viable cause of action.@ 

A party should not circumvent the protective features of the special exception procedure by urging a motion for summary judgment on the pleadings or by other means when a plaintiff=s pleadings fail to state a claim.  Centennial Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479, 482 (Tex. App.CHouston [14th Dist.] 1991, no writ).  When, however, a defendant argues  and presents summary-judgment proof establishing the plaintiff has no viable claim, summary judgment is not on the pleadings, and the law requires neither special exceptions nor a remand so the appellant may replead.  See Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795, 802 (Tex. App.CHouston [14th Dist.] 1998, no pet.).  Frost Bank directed its summary-judgment motion to each of the Lentinos= pleadings.  With regard to each claim, Frost Bank argued either the negation of one or more elements or the establishment of an affirmative defense.  Frost Bank attached summary-judgment proof in support of its arguments.  As in Huffine, summary judgment was not on the pleadings.  The trial court therefore correctly overruled Marta=s objections to Frost Bank=s summary-judgment motion and correctly denied her request to replead.  Accordingly, we overrule Marta=s seventh and eighth issues.


D.      Did the trial court abuse its discretion when it denied the Lentinos= motion for new trial (issue ten)?

 

In her tenth issue, Marta argues the trial court erred when it denied her motion for new trial after it had taken judicial notice of evidence not controverted by Frost Bank.  Her arguments in support of this issue all relate to her claim that Frost Bank fraudulently represented the facts necessary to establish the merger between Frost Bank and Cullen Bank.  Because we have reversed judgment on this claim and remanded it, we need not address Marta=s tenth issue.

E.      Did the trial court err by not issuing findings of fact and conclusions of law (issue eleven)?

In her eleventh issue, Marta contends the trial court erred by not issuing findings of fact and conclusions of law.  Her argument, however, focuses on the trial court=s not having made findings of fact.  Findings of fact are not proper in a summary-judgment context.  Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., 164 S.W.3d 438, 442 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  We find no merit in Marta=s argument and overrule Marta=s eleventh issue.

IV.  Conclusion

We sustain Marta=s sixth issue solely as it relates to her claim, in her individual capacity, of fraudulent representation of the facts related to the merger between Cullen Bank and Frost Bank.  We overrule Marta=s sixth issue as it relates to any other claim or party.  We overrule Marta=s first, third, fourth, seventh, eighth, and eleventh issues, and also overrule her ninth and twelfth issues to the extent we address them.  We do not address Marta=s second, fifth, and tenth issues.


Accordingly, we affirm the judgment in favor of Frost Bank on all claims, and as against all parties, with the exception of the claim of fraudulent representation of the facts related to the merger between Cullen Bank and Frost Bank asserted by Marta Lentino, individually.  We sever and remand only that claim to the trial court for further proceedings consistent with this opinion.

 

 

 

 

/s/      Kem Thompson Frost

Justice

 

 

 

 

Judgment rendered and Memorandum Opinion filed May 22, 2008.

Panel consists of Justices Fowler, Frost, and Seymore.



[1]  When necessary to refer to an individual party we use as much of that person=s or entity=s name as is necessary for identification.  In discussing the arguments, we refer to Marta because she argued the case below and is the author of the only substantive brief on appeal.  We refer to Frost Bank=s predecessor, Cullen Bank, when necessary in discussing the issues related to merger.

[2]  Lentino v. Cullen Center Bank and Trust, 919 S.W.2d 743, 745, 747 (Tex. App.CHouston [14th Dist.] 1996, writ denied) (reversing summary judgment in favor of bank in Harris County case number 91-188878 and remanding); Lentino v. Cullen Center Bank and Trust n/k/a Frost Nat=l Bank, No. 14-00-00692-CV, 2002 WL 220421 (Tex. App.CHouston [14th Dist.] Feb. 14, 2002, pet. denied) (not designated for publication) (affirming post-answer default judgment rendered February 29, 2000, in favor of bank on remand in Harris County case number 91-188878).

[3]  Lentino v. Frost Nat=l Bank, 159 S.W.3d 651 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (dismissing for want of jurisdiction due to lack of final trial court order disposing of all claims and all parties).

[4]  Lentino v. Frost Nat=l Bank f/k/a/Cullen Center Bank and Trust, No 14-05-01179-CV, 2007 WL 2198827 (Tex. App.CHouston [14th Dist.] Aug. 2, 2007, pet. denied) (mem. op.) (affirming summary judgment in favor of Frost Bank in Harris County Case number 04-08487).

[5]  See Lentino, 159 S.W.3d at 652B53.

[6]  At this point in the proceedings, Marta was appearing pro se, and the remaining plaintiffs were appearing through counsel.  Marta adopted the pleadings of the other Lentinos in which they amended and supplemented their original petition.

[7]  This pleading was signed by Marta and by counsel for the remaining Lentinos.

[8]  Marta=s children (Fabiola, Michelle, and Natalia) and the Eduardo P. Lentino Children=s Trust   assigned their claims to Marta in exchange for the right to receive 85% of any recovery by Marta.  The assignment documents contain language indicating that Marta will be representing the assignors herself in prosecuting the assigned claims. 

[9]  The Rule 11 agreement, executed on August 20, 2001, between Frost Bank=s counsel and counsel for all the Lentinos except Marta, provided Frost Bank would waive the award of sanctions against Marta and all parties agreed they would not appeal any aspect of the case.

[10]  This allegation appears to be based on the Rule 11 agreement between Frost Bank and the other Lentinos.

[11]  The third and fourth claims appear to be based on the Rule 11 agreement.

[12]  See Lentino, 159 S.W.3d at 652 (regarding Dov Avni Kaminetzky=s intervention).

[13]  See Tex. Bus. & Com. Code Ann. '' 24.001B.013 (Vernon 2002 & Supp. 2007).  Marta did not indicate for which claims she is assignee.

[14]  See also Tex. Gov=t Code Ann. ' 81.101(a) (Vernon 2005) (defining practice of law as preparation of pleading or other document incident to action or special proceeding or management of action or proceeding on behalf of client before judge in court as well as service rendered out of court, including giving of advice or rendering of any service requiring use of legal skill or knowledge); Crain v. Unauthorized Practice of Law Comm=n, 11 S.W.3d 328, 333 (Tex. App.CHouston [1st Dist.] 1999, pet. denied) (stating statutory definition is not exclusive).

[15]  Cynthia=s and Susana=s counsel withdrew on January 23, 2002.  Other than the notices of appeal, the only pleadings and motions filed after that date were filed by Marta.  Counsel=s last pleading on Cynthia=s and Susana=s behalf was the Lentinos= June 11, 2001 Afirst supplemental@ to their counter-counterclaim.  See note 7 supra.

[16]  Marta frames those issues as follows:

 

Issue 1: The evidence conclusively shows that FROST never acquired any claims against Lentino or by Lentino pursuant to its merger with Cullen thus lacked standing. Accordingly, the trial court erred in granting FROST=s motion for summary judgment, instead, the trial court should have granted LENTINO=s motion for summary judgment and render judgment FROST did not have standing and was liable to LENTINOS.

 

Issue 2: Alternatively, there is a Agenuine material issue of fact@ as to whether FROST had consummated its merger with CULLEN and was the holder of the causes of action against LENTINOS at the time it obtained the judgment. Accordingly, the trial court erred in granting FROST=s motion for summary judgment.

 

Issue 3: The evidence conclusively shows there is no proof of consummation of a complete merger under which the claims against LENTINOS could of [sic] pass [sic] automatically without recording and without notice to the affected parties[.] Accordingly, the trial court erred in granting FROST=s motion for summary judgment.

. . .

 

Issue 5: Did the trial court abuse its discretion in applying Texas law to the effect of the merger of CULLEN a state banking association into FROST a national banking association pursuant to 12 U.S.C. ' 215a?

 

Issue 6: The trial court erred in overlooking LENTINOS= time‑accrual of their different causes of action.

. . .

 

Issue 9: Did the trial court err in granting summary judgment when the record reflects the existence of several material fact issues?

 

. . .

 

Issue 12: Did the trial court err in not allowing Appellants= new claims to be tried by jury as timely requested and paid for?

[17]  Marta characterizes the misrepresentation in two distinct ways: (1) as a misrepresentation of when  Frost Bank learned of the Acreation and capitalization@ of the trusts and (2) as a misrepresentation of when Frost Bank learned of the Atransfer of assets@ to the trusts.  That Frost Bank may have known of the creation and capitalization of the trusts in 1986 is not inconsistent with its stating it did not know of Eduardo=s and Jorge=s fraudulent transfers of funds to those trusts until 1991.  See note 21, infra.

[18]  Although Marta asks this court to review the trial court=s denial of her motions for summary judgment, we cannot review these rulings because these motions sought a partial rather than a final judgment.  See CU Lloyd=s of Tex. v. Feldman, 977 S.W.2d 568, 569 (Tex. 1998) (stating the general rule that, before a court of appeals may review an order denying a cross-motion for summary judgment not covered by an interlocutory appeal statute, both parties must have sought final judgment in their cross-motions for summary judgment).

[19]  Frost Bank argues the mergers to which Marta refers occurred before 1999 and could have been litigated in the 1991 lawsuit (in which the plea of abatement was filed on February 14, 2000).  Frost Bank=s argument, however, misses the point that Marta refers to documents and statements about those mergers and Frost Bank=s summary-judgment proof did not address those documents and statements, which Marta contends Frost Bank concealed and which she contends establish, or raise a fact issue, that Frost Bank fraudulently represented the status of the merger.

[20]  It appears the issue of fraudulent representation in relation to merger/standing in the 1991 lawsuit was tried in the 2004 bill-of-review proceeding.  See Lentino, 2007 WL 2198827, at *2 (listing fraud, accident or wrongful act of opponent as one element bill of review complainant must prove and stating one issue on appeal of denial of bill of review was whether Frost Bank had standing to prove its claims).  We need not and do not address the preclusive effect of the trial court=s judgment in the 2004 bill-of-review proceeding because the trial court did not render its written judgment in that proceeding until six days after Frost Bank filed its motion for summary judgment in the present suit.  Although Frost Bank refers to the bill-of-review judgment in the present appeal, it was not part of Frost Bank=s summary-judgment proof.  Also not part of Frost Bank=s summary-judgment proof, but mentioned by reference in this court, is Marta=s statement that the second appeal in the 1991 lawsuit would resolve all issues then pending in the present case, including an issue of Frost Bank=s alleged lack of standing.

[21]  The summary-judgment proof on which Marta relies to establish a fraudulent representation indicates only that Cullen Bank knew of the existence and capitalization of certain trusts in 1986, not that it knew of fraudulent transfers to those trusts as early as 1986.  The point in time at which Cullen Bank knew or should have known of the allegedly fraudulent transfers appears to have been relevant to a limitations defense in the 1991 lawsuit.

[22]  As stated in note 18, supra, to the extent Marta asserts in these issues that the trial court erred by denying her motions for summary judgment, we cannot review these rulings because Marta did not seek a final summary judgment.

[23]  See Tex. Bus. & Com. Code Ann. '' 24.001B.013 (Vernon 2002 & Supp. 2007).