N(). 04-14-90085-€\/'

 

 

IN THE FOUR'I`H DISTRICT COURT OF APPEALS
SAN ANTONIO, TEXAS

 

ELIZABETH WEYEL
Appellant

V.

JAMES HOPSON
AND AMERICAN BANK OF TEXAS, N.A. f/k/a
STATE BANK & TRUST OF SEGUIN, TEXAS
Appellees

 

Appealed from the 25th District Court of
Guadalupe County, Texas

 

APPELLANT’S MO'I`ION FOR REHEARING

TO THE HONORABLES JUSTICES OF SAID COURT:

Appellant, ELIZABETH WEYEL, submits this motion for rehearing in response

to the opinion issued by the Court on February 4, 2015, and requests that the Court

consider the following

challenged on appeal.

As part of the opinion, the Court affirmed the granting of a no-evidence summary
judgment against Appellant in favor of AMERICAN BANK. This Court reasoned the

case should be affirmed because all grounds for the granting of the motion Were not

` burden to defeat all potential grounds for summary judgment on Appellant, Where the

dphyll+létf"“"@n

The Appellant believes the Court has improperly placed the

 

Court has clearly stated the findings upon which the summary judgment was granted
This is the only portion of the Court’s opinion of which Appellant complains.

ISSUE PRESENTED FOR REVIEW

Issue 1: The court of appeals erred in finding that there Was no appellate challenge
to the 110-evidence summary judgment in favor of AMERICAN BANK.

This lcouit could only reach this conclusion if it misinterpreted or ignored the
findings made by the Court in its January 3, 2014, letter to the parties announcing his
ruling. A copy was attached as EXhibit “B” to Appellant’s Brief.

Misinterpretation

According to the trial court, the granting of the No-Evidence Motion for Sumrnary
Judgrnent Was based on the absence of evidence of a duty owed by Al\/[ERICAN BANK
to WEYEL outside of the parties’ contract The opinion of this Court affirms the
_ judgment based on the unsubstantiated finding that Appellant did not challenge the
grounds of AMERICAN BANK’s No-Evidence Motion for Summary Judgment on this
appeal

To properly analyze the case, we start with AMERICAN BANK’s Nc-Evidence
Motion for Summary ludgment. In its Motion for No~Evidence Motion for Summary
Judgment, AMERICAN BANK alleged there was no evidence to show that AMERICAN
BANK was negligent WEYEL responded to the Motion for Surnmary Judgrnent with
facts supporting negligence of AMERICAN BANK.

Negligence at common law is the existence of a legal duty owed by one person to

another, the breach of that duty and damages proximately caused by the breach.

 

Fz`restone Steel Produc!s Co. v. Barajas, 927 S.W. 2d 608 (Tex. 1996). Duty is the first
element of negligence Which must be established before a party may prevail on a
negligence claim. Trzplex Communications Inc. v. Riley, 900 S.W.Zd Tex. 1995). If`
there is no duty there can be no breach, the second element of negligence Centeq Reality
v. Siegler, 899 S.W.Zd (TeX. 1995). Without a breach, there can be no proximate cause
of damage G'reater Houston Tmnsport v. Phillips, 801 S.W.Zd 523 (Texas 1990).

Appendix “B” attached to Appellant’s Brief is the findings of the court regarding
the Motions for Summary Judgrnents. These are in the record and serve to explain the
ruling of the trial court much as Findings of Fact and Conclusions of Law. These
findings Set out the basis for the trial court’s granting summary judgment The trial court
addresses each claim brought forth in the various Motions for Summary ludgment which
supports the ludgment. The trial court did not address what it found that would not
support its ruling, but what it found in the record that would support its ruling.

In item number 6, the trial court states the relationship between WEYEL and
AMERICAN BANK is contractual in nature and in item number 9 states there is no duty
owed by AMERICAN BANK to WBYEL outside the contractual relationship These
were the finding of the trial court which support the granting of Al\/[ERICAN BANK’s
no-evidence Motion for Summary Judgment. These issues were challenged in
Appellant’s Brief.

The Order makes sense in that the negligence of AMERICAN BANK was not
established because WEYEL had not shown by sufficient summary judgment that a duty

other than contractual exists. Such is the threshold in any negligence case.

 

Therefore, the only basis for the granting of the no-evidence motion for summary
judgment identified by the trial court was the absence of a duty to support negligence
This finding supports both the traditional and no-evidence motions. See; Centeq Realily
v. Siegler, 899 S.W.Zd (Tex. 1995). If the only duty owed was contractual there could be
no negligence The trial court’s findings did not address the lack of a breach of the duty
nor the proximate cause of damage lt did not have to because the threshold question had
been decided. See; Greater Houston Tmnsport v. Phillips, 801 S.W.Zd 523 (Texas
1990).

The trial court did not find that Al\/lERICAN BANK was not negligent just that
the only duty it owed was contractual The trial court did not find that AMERICAN
BANK did not commit negligence nor that the conduct did not cause damage Since the
trial court made findings, there is no need to challenge the basis of a summary which was
not found by the trial court

This is not a case where all issues need to be addressed to prevent the case from
being affirmed This is a case with specific findings by the trial court, For this Court to
imply different findings is improper. This Court, as is WEYEL, is limited to the review
of the trial court’s findings

Of those elements, the only one the trial court found was that there was no duty
beyond the contractual duties imposed by the contract There were no other findings to
support the granting of the no~evidence l\/lotion for Summary ludgment.

In her Brief, in Issue 3, WEYEL complained that the trial court erred in granting

summary judgment that AMERICAN BANK owed no duty to WEYEL. 'l`his argument

 

contains complaints as to the trial court’s rulings on summary judgment that was granted
on the basis of the no duty owed to WEYEL beyond contractual duties of the parties of
the traditional summary judgment as well as the basis for the no negligence argument of
the no-evidence summary judgment The arguments are interchangeable 'AMERICAN
BANK could not be liable for negligence because its duty was limited to the parties’
contract

WEYEL argued in her Brief that the duties owed extended beyond contractual and
were based in common law. WEYEL argued at trial court and before this Court that
duties existed because of the relationship between WEYEL and AMERICAN BANK.
AMERICAN BANK was a trustee for WEYEL’s self~directed IRA. As a trustee,
AMERICAN BANK owed a fiduciary duty to WEYEL. This duty was breached by the
failure to file the appropriate tax returns and the failure to discover the tax violation This
is not limited to the contract which the court found was the only basis of duty owed.
Ignore

Otherwise, to support granting of the No-Evidence Motion for Summary
Judgment, this Court has to ignore the trial court’s findings in the record. ln order to
affirm the No-Evidence Summary Judgrnent, this Court must ignore the record on appeal
'i`he failure of this Court to consider the entire record and the findings of the judge,
contained therein, is wrong

The findings identified in the lanuary 3, 2014, letter in the record form the basis
for the trial court’s decision. The letter so states. lt is the findings of the trial court that

Appellants objects to. In ignoring the January 3, 2104, letter from the trial court, this

 

Court imposes on this Appellant the burden to disprove any ground upon which summary
judgment can be granted There is no reason to guess or pontifi_cate on why the Court
may have ruled that way, when it was stated clearly and concisely by the trial court in the
January 3, 2014, letter. Why shouldn’t that be considered? lt certainly is better than
speculation But yet this Court is making Appellant speculate why the trial court granted
the summary judgment

The llanuary 3, 2014, letter sets out facts that were found which support
AMERICAN BANK’s Motions for Summary ludgment. Each point was challenged by
WEYEL on appeal Admittedly, what was not challenged were those facts or findings
not found by the court The trial court’s findings were sufficient to support a summary
judgment That is the basis of the appeal This Court implies the trial court may have
forgotten something in its findings

The Order granting summary judgment has the trial court findings supporting it.

This Court cannot summarily ignore them, and impose upon Appellant the responsibility
to challenge findings not made, when the findings made were sufficient to establish
summary judgment

Why would this Court ignore the findings of the trial court? They are part of the
record There is no dispute that they form the basis for the summary judgment entered
ls it possible the trial court was forgetful of why the motions were granted such that it
should be ignored? Why should Appellant be forced to disprove all reasons for the
possible granting of a Motion for Summary Judgment when the trial court clearly

identifies the grounds upon which it was granted? That procedure exists for cases where

 

the trial court fails to explain their rulings on the record This is not a case where we have

to guess why a trial court made a ruling. The trial court told the parties in its
pronouncement

Conclusion

Clearly, the affirming of the no-evidence l\/lotion for Summary ludgment in favor
of AMERICAN BANK was error. 'i`his Court misinterpreted the findings of the court
ln support of the no-evidence Motion for Summary ludgment, the court reached the
threshold question of duty and said none existed After the threshold question was
negative the trial court had no further responsibility to address issues based on the
threshold issue rl`his Court cannot assume the trial court granted summary judgment on
the other issues after granting summary judgment on the threshold issue

The other reasoning is that the Court ignored the findings of the trial court to
support its position Many summary judgment cases do not contain this information in
the record. Those cases without trial court findings which are not briefed in the appeals
should be affirmed if the party does not address all possibilities on appeal But here the
judge did not leave it to interpretation, he supplied his findings Do we want the court to
not make findings and be affirmed under technical circumstances? Be ignored when they
assist the appellate court with their reasoning?

()n a side note, the better practice would be for this Court to hear oral arguments
on matters such as this that would allow for explanation and lend itself to a thorough
legal discussion of the issues presented The job of the Court of Appeals should not be to

ignore the specific rulings of the trial court and impose judgment but to insure people

 

have open access to the court system uninhibited by hyper-technical and illogical

restraints

PRAYER

For the reasons stated in this motion, Appellant asks the Court to grant this motion
for rehearing, withdraw its opinion of February 4, 2015, reverse the trial court judgment

and remand for a new trial

Respectfully submitted,

LAW OFFICES OF JAAY D. NEAL, P.C.
322 `W. Woodlawn Avenue

San Antonio, TX 78212

Telephone: 210/735-2233

Facsimile: 210/735~8431

BY: /s/ Jaav D. Neal
JAAY D. NEAL
State Bar No. 1483 6700
Attorney for Appellant,
ELIZABETH WEYEL

CER'I`IFICATE OF SERVICE

 

I hereby certify and affirm that on this the 6th day of March, 2015 l sent a true and
correct copy of Appellant’s Motion for Rehearing to the following attorneys of record:

Ralph D. McBride David F. Johnson

Bracewell & Giuliana 777 l\/Iain Street, Suite l100
711 Louisiana Street, Suite 2900 Fort Worth, Texas 76102
Houston, TeXas 77002~2781 viafczcsimile: 817~420-820]

viafacsimz`le: 713-22]-12]2

/S/ Jaay D. Neal
IAAY D. NEAL

 

