












 
 
 
 
 
 
                                COURT OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
                                        NO.
2-03-276-CV
 
NORTHSIDE MARKETPLACE                                                APPELLANTS
W.D. >97, LTD. AND 
DAVID CHRISTOPHER, INC., 
FIDELITY AND GUARANTY 
INSURANCE UNDERWRITERS, 
INC., AND UNITED STATES 
FIDELITY AND GUARANTY 
COMPANY                                                                                          
 
                                                   V.
 
DAVID CHRISTOPHER, INC.,                                                  APPELLEES
FIDELITY AND GUARANTY 
INSURANCE UNDERWRITERS, 
INC., AND UNITED STATES 
FIDELITY AND GUARANTY 
COMPANY AND 
NORTHSIDE MARKETPLACE 
W.D.>97, LTD. AND BURK COLLINS                                                        
 
                                              ------------
 
            FROM THE 236TH
DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                MEMORANDUM OPINION[1]
 




                                              ------------
Appellant Northside Marketplace W.D. >97, Ltd.
(ANorthside@)
appealed from an adverse trial judgment in this contract dispute but filed no
brief.  Cross-Appellants David
Christopher, Inc. (ADCI@),
Fidelity and Guaranty Insurance Underwriters, Inc., and United States Fidelity
and Guaranty Company (all collectively ACross-Appellants@) also
filed a notice of appeal, complaining of the part of the trial court=s
judgment in favor of Cross-Appellees Northside and Burk Collins.  Because Northside did not file an appellant=s brief,
we dismiss its appeal for want of prosecution. 
Because we hold that the trial court correctly granted Collins=s
no-evidence motion for summary judgment and that the complaint about the
removal of the lien is moot, we affirm the trial court=s
judgment.
Northside=s
Appeal




Northside=s brief
was originally due on March 5, 2004.  On
March 25, 2004, we notified Northside that its brief had not been filed as
required by rule 38.6(a).[2]  We stated that we could dismiss Northside=s appeal
for want of prosecution unless it or any party desiring to continue this appeal
filed with the court within ten days a response showing grounds for continuing
the appeal.[3]  Northside filed a stipulated motion to extend
time to file a brief pending arbitration on April 2, 2004.  On May 5, 2004, we granted the motion and
abated the case until June 4, 2004, pending arbitration.  On October 7, 2004, we reinstated the case,
giving Northside until November 8, 2004 to file its brief. On January 6, 2005,
this court was informed that Northside would not file a brief.  Accordingly, because Northside did not file
an appellant=s brief, we dismiss Northside=s appeal
for want of prosecution.[4]
Cross-Appellants= Appeal
I. 
Background Facts
DCI contracted with River Oaks W.D. >97 Ltd.
(River Oaks) to build a Winn-Dixie.  DCI
acted as general contractor regarding the construction of the store.  River Oaks assigned the contract to Northside
pursuant to an Assignment and Assumption of Construction Contract.  Fidelity and Guaranty




Insurance Underwriters, Inc. and United States Fidelity and Guaranty
Company provided the performance bond for the project.  DCI and Northside later entered into a formal
agreement in which Northside agreed to reimburse DCI for construction delays
and released DCI from liability related to settlement of the fill materials,
slab, floor or foundation of the construction site.  Collins is a shareholder, principal, and
agent of Northside.
Cross-Appellants claim that they are owed
$381,553.16 for work pursuant to the contract and change orders, $120,000
pursuant to the Formal Agreement, and $41,156.30 for raising the slab.  They further claim that Collins is liable for
these damages because he fraudulently induced DCI to perform.
II.  Legal
Analysis
Cross-Appellants= first
issue is contingent on our remanding the case pursuant to Northside=s
appeal.  Because we have dismissed
Northside=s appeal for want of
prosecution, we do not reach this issue.[5]
A.  Summary
Judgment Striking Fraud Claims 
In their second issue, Cross-Appellants contend
that the trial court erred in granting Collins=s
no-evidence and traditional motions for summary judgment and striking causes of
action asserted by DCI based on Collins=s
alleged fraudulent inducement.







When a party moves for summary judgment under
both rules 166a(c) and 166a(i), we first review the trial court=s
judgment under the standards of rule 166a(i).[6]  If the appellants failed to produce more than
a scintilla of evidence under that burden, then there is no need to analyze
whether appellee=s summary judgment proof
satisfied the less stringent rule 166a(c) burden.[7]        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.[8]  The motion must specifically state the
elements for which there is no evidence.[9]  The trial court must grant the motion unless
the nonmovant produces summary judgment evidence that raises a genuine issue of
material fact.[10]  We review the evidence in the light most
favorable to the party against whom the no-evidence summary judgment was
rendered.[11]  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.[12]
As the Texas Supreme Court held in Formosa
Plastics,[13]
A fraud cause of action requires Aa material misrepresentation, which was false,
and which was either known to be false when made or was asserted without
knowledge of its truth, which was intended to be acted upon, which was relied
upon, and which caused injury.@  A promise
of future performance constitutes an actionable misrepresentation if the
promise was made with no intention of performing at the time it was made.  However, the mere failure to perform a
contract is not evidence of fraud.[14]
 
Cross-Appellants= record
citations are, as Collins points out, woefully deficient.  In arguing this issue in their amended brief,
Cross-Appellants refer in a conclusory and general fashion to an affidavit
spanning seventy-nine pages, their lawyer=s
affidavit, and nine deposition excerpts. 
Cross-Appellants make no attempt in their amended brief to show how any
of the evidence, generally or specifically, supports any element of fraudulent
inducement or raises an issue of fact concerning fraudulent inducement.




In their reply brief, rather than providing the
specific record citations absent from their amended brief, Cross-Appellants
attempt to justify the absence of the specific record citations and insist that
their briefing is adequate.  They list
several alleged facts in two separate paragraphs to try to show evidence of
fraudulent inducement.  But the only
record citation appears at the end of each paragraph, indicating that the
evidence can be found in the record on pages 606-800.




It is not our duty to comb through one hundred
and ninety-five pages to determine whether evidence exists to defeat Collins=s
motions for summary judgment; it is the duty of Cross-Appellants.  An appellate brief must contain a clear and
concise argument for the contentions made, with appropriate citations to
authorities and to the record.[15]  A point is sufficient if it directs the
appellate court to the error about which complaint is made.[16]  An appellate court is not required to search
the appellate record, with no guidance from the briefing party, to determine if
the record supports the party=s
argument.[17]  Thus, an inadequately briefed point may be
forfeited on appeal.[18]
But Cross-Appellants also refer us to the
statement of facts in their amended brief and their response to the no-evidence
summary judgment.  While we have no duty
to do so, in the interest of justice, we have combed through Cross-Appellants=
response to the no-evidence motion for summary judgment, their amended brief,
and their reply brief to cull specific assertions about Collins supported by
record citations and have correlated for ourselves summary judgment record citations
with appellate record citations.  After
this exercise, we note that the statements that follow are the specific pieces
of alleged evidence for which Cross-Appellants provide somewhat adequate
citations in their appellate briefs, albeit in a roundabout way:
$                  
Collins is a shareholder, principal, and agent of Northside and River
Oaks. 
 
$                  
Collins owns a third of River Oaks.
 
$                  
Collins requested separate contracts for the Winn-Dixie store and the
related shopping center.
 




$                  
Collins represented that the owner of the shopping center was unable
to get financing but asked DCI to submit another contract for the Winn-Dixie
construction, changing the name of the owner from River Oaks W.D. >97, Ltd. to Northside
Marketplace W.D., Ltd.
 
$                  
Collins negotiated and executed a formal agreement on behalf of
Northside.
 
$                  
At the time this formal agreement was signed, Collins did not intend
to honor it.
 
$                  
Collins knew that the condition of the soil at the site was very poor
and unlikely to support a slab such as the slab constructed at the site due to
the type of fill materials that were dumped at the site, the lack of controlled
compaction, and the long-term integrity of the slabs and foundations.
 
$                  
Collins asked for a bond from Joe Adams and Sons due to problems with
the pad.
 
$                  
Collins knew that the way to correct this condition was through deep
dynamic compaction or from a compaction process known as grouting. 
 
$                  
Collins orally directed DCI to perform change orders based on
representations that the approval of no other person or entity was necessary.
 
$                  
DCI performed numerous change orders pursuant to oral and written
requests by Collins.
 
$                  
Collins agreed to the work described on Northside Invoice #WD-17 and
supporting invoices addressed to DCI from other subcontractors and accepted the
benefits of such labor and materials, but refused to pay DCI the balance due of
$41,156.30.
 
$                  
DCI relied upon the formal agreement and the representations contained
therein.  But for the formal agreement
and said representations, DCI would not have continued with the project given
the condition of the soil and the pad.




In his no-evidence motion, Collins argues that
there is no evidence that he made a material misrepresentation, no evidence
that an alleged misrepresentation was 
intended to induce performance by DCI, no evidence of his individual
liability, and no evidence that he made any misrepresentation willfully or with
conscious indifference.




Again, in the context of this case, the type of
misrepresentation that we are addressing, according to Cross-Appellants= briefs,
is a promise of future performance, which is an actionable misrepresentation
only if the promise was made with no intention of performing it at the time it
was made.[19]  Cross-Appellants do not attempt to tie any
particular pieces of evidence to particular elements.  Our own review shows that the only piece of
evidence cited that refers to Collins=s intent
is the statement alleging that Collins did not intend to honor the formal
agreement at the time that he signed it. 
When we trace the evidence to its source, the affidavit of Jeff Knutson,
Executive Vice-President of DCI, however, we find that the only basis for the
evidence is the statement by Knutson that he Anow
believe[s] Collins and Northside never intended to honor this agreement.@  Conclusory opinions and testimony about an
issue have no probative value and do not raise a fact issue.[20]  Because Cross-Appellants failed to bring
forth more than a scintilla of evidence to raise a fact issue on their claims
based on Collins=s alleged fraudulent inducement,
the trial court correctly granted Collins=s
no-evidence motion for summary judgment. 
We overrule Cross-Appellants= second
issue.
B.  Removal
of Materialmen=s Lien
In their third issue, Cross-Appellants contend
that the trial court erred in granting the defendants= amended
motion for partial summary judgment on 
their counterclaim seeking a declaratory judgment invalidating DCI=s
materialmen=s lien.  Collins, who notes that he is responding to
the argument in an abundance of caution, even though he is not the owner of the
subject real property, argues that the issue is moot because the property
against which the lien attached was foreclosed on on May 4, 2004 and is no
longer owned by Cross-Appellee Northside. 
He implicitly requests that we take judicial notice of a certified copy
of the trustee=s deed included in his brief as
an appendix.  In their reply brief,
Cross-Appellants do not address Collins=s
implicit request or the issue of mootness.







To be the proper subject of judicial notice, a
fact must be Acapable of accurate and ready
determination by resort to sources whose accuracy cannot reasonably be
questioned.@[21]  Judicial notice is mandatory if Arequested
by a party and [the court is] supplied with the necessary information.@[22]  A court of appeals has the power to take
judicial notice for the first time on appeal.[23]  We take judicial notice of the trustee=s deed,
which shows that foreclosure has occurred and that the property is now owned by
Mitchell Mortgage Company, L.L.C. 
Foreclosure of a deed of trust against real property extinguishes all
junior liens and encumbrances against that property.[24]  However, the inception of the materialmen=s lien
relates back to when the first work on the site started.[25]  It appears from the record that work began in
1998.  The foreclosed deed of trust lien
is dated April 2000.  Consequently,
because the materialmen=s lien was not a junior lien but
was, by statute, superior to the deed of trust, we decline to hold that this
issue is moot based on the foreclosure.
However, the record yields another basis for
holding this issue moot.  Pursuant to the
jury verdict, the trial court rendered final judgment in favor of DCI and
against Northside for actual damages of $542,714.48 plus prejudgment and
postjudgment interest and trial and appellate attorney=s
fees.  This judgment includes the
$381,553.16 identified as unpaid in the materialmen=s lien
affidavit and the notice of claim.




Cross-Appellants claim that the trial court
should have denied Cross-Appellees= motion
for partial summary judgment and ask that we reverse the judgment and remand
the case for further proceedings, but they do not explain how further
proceedings could benefit them. 
Cross-Appellants already have a judgment against Northside.  We have already upheld the summary judgment
dismissing with prejudice DCI=s claims
against Collins.  No other defendants are
involved in the appeal.  The only
possibility of an unresolved issue between Cross-Appellees and Cross-Appellants
would be a potential award of attorney=s fees
and costs, but the motions and pleadings in the appellate record do not show
that either side requested an award of attorney=s fees
and costs regarding this issue, that is, Cross-Appellees=
counterclaim seeking a declaratory judgment invalidating the lien.[26]  As a result, we hold that no live controversy
exists between the parties regarding the trial court=s
partial summary judgment invalidating and removing the materialmen=s lien.[27]  Consequently, we dismiss Cross-Appellant=s third
issue as moot.
Conclusion
After dismissing Northside=s
appeal, overruling Cross-Appellants= second
issue, dismissing their third issue, and not reaching their first issue, we
affirm the trial court=s judgment.
 
LEE
ANN DAUPHINOT
JUSTICE
PANEL B:   DAUPHINOT, WALKER, and MCCOY, JJ.
WALKER, J. concurs without opinion.
DELIVERED:  November 23, 2005




[1]See Tex. R. App. P. 47.4.


[2]See TEX. R. APP. P. 38.6(a).


[3]See TEX. R. APP. P.
38.8(a)(1).


[4]See TEX. R. APP. P.
38.8(a)(1), 42.3(b).


[5]See Tex. R. App. P. 47.1.


[6]Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).


[7]Id.


[8]Tex. R. Civ. P. 166a(i).


[9]Id.;
Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 207
(Tex. 2002).


[10]See Tex. R. Civ. P. 166a(i) & cmt.; Sw.
Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).


[11]King Ranch,
Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541
U.S. 1030 (2004); Johnson, 73 S.W.3d at 197; Morgan v. Anthony,
27 S.W.3d 928, 929 (Tex. 2000).


[12]Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.CSan
Antonio 1998, pet. denied).


[13]Formosa Plastics Corp. USA v. Presidio Eng=rs
and Contractors, Inc., 960
S.W.2d 41 (Tex. 1998).


[14]Id. at 47-48
(citations omitted).


[15]Tex. R. App. P. 38.1(h).


[16]Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 54 (Tex. 1998).


[17]Hall v. Stephenson, 919 S.W.2d 454, 466-67 (Tex. App.CFort Worth 1996, writ denied); Happy Harbor
Methodist Home, Inc. v. Cowins, 903 S.W.2d 884, 886 (Tex. App.CHouston
[1st Dist.] 1995, no writ).


[18]Hall, 919
S.W.2d at 467; see also Fredonia State Bank v. Am. Gen. Life Ins. Co.,
881 S.W.2d 279, 284 (Tex. 1994) (discussing Along-standing rule@ that point may be waived due to inadequate briefing).


[19]See Formosa Plastics, 960 S.W.2d at 47.


[20]In re Am. Home Prods. Corp., 985 S.W.2d 68, 74 (Tex. 1998) (orig. proceeding)
(op. on reh=g).


[21]Tex. R. Evid. 201(b)(2).


[22]Tex. R. Evid. 201(d).


[23]Office of Pub. Util. Counsel v. Pub. Util. Com'n of
Tex., 878 S.W.2d 598, 600 (Tex.
1994).


[24]See Exch. Sav. & Loan Ass=n
v. Monocrete Pty. Ltd., 629 S.W.2d
34, 36, 38 (Tex. 1982); Irving Lumber Co. v. Alltex Mortgage Co., 468
S.W.2d 341, 344 (Tex. 1971).


[25]See Tex. Prop. Code Ann. ''
53.021(a), 53.123, 53.124 (Vernon 1995 & Supp. 2005).


[26]See id. ' 53.156.


[27]See F.D.I.C.
v. Nueces County, 886 S.W.2d 766, 767 (Tex. 1994).


