AFFIRM and            Opinion       Filed March 12, 2013.




                                                                   In The
                                              Qtiiirt ni Aprat
                                    3fiItIi tlitrict of Lrxa at aLI&ui
                                                        No. 05-1 1-01 123-CV

                                            BANK OF TEXAS, N.A., Appellant

                                                                       V.

                                              WILLIAM RAV KIND, Appellee

                                 On Appeal from the 193rd judicial District Court
                                              Dallas County, Texas
                                         Trial Court Cause No. 11-6647

                                           MEMORANDUM OPINION
                                    Before Justices Lang-Miers, Myers, and Richter’
                                            Opinion by Justice Lang-Miers
          Appellant Bank of Texas. N.A. appeals the trial court’s order granting Appellee William

Ravkind’s motion for summary judgment. We issue this memorandum opinion pursuant to Texas

Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. We

affirm the trial court’s judgment.

                                                             BACKGROUND

          Bank of Texas sued Ravkind for negligent misrepresentation. It alleged that Ravkind

completed a form entitled “Verification of Deposit” stating that he was the depository of two


 The Honorable Martin E. Richter, Retired Justice, Court of Appeals, Fifth District of Texas at Dallas, sitting by assignment.
trust accounts belonging to his client Cindy Lantrip that contained assets totaling $1 .2 million:

that Ravkind was not the                 depository       of the accounts: that the inlorination on the Verification of

Deposit was false; that it relied on the Verification of Deposit in deciding to lend Lantrip almost

$2 million for improvements to property located on Colgate in University Park, Texas; that

Lantrip defaulted on the loan: that the Rank sold the property at foreclosure for $640,000; and

that Ravkind’s negligent misrepresentation proximately caused the Bank’s injuries.

             Ravkind tiled a combined no—evidence and traditional inot ion lor summary judgment.

The trial court granted Ravkind’s motion “on each ground allegedl.I” The Bank raises seven

issues on appeal challenging the court’s order, In its first issue on appeal, the Bank argues that

the trial court erred by granting Ravkind’s no-evidence motion for summary judgment on the

issue of justifiable reliance.

                                                           Standard of Review

             When a party files both a no-evidence and a traditional motion for summary judgment,

we consider the no-evidence motion first. ford Motor Co.                            i’.   Ridgwav. 135 S.W .3d 598, 6(X)

(Tex. 2004). The no-evidence motion must specifically state the elements for which there is no

evidence. TEx. R. Civ. P. 166a(i). The burden then shifts to the nonmovant to produce more than

a scintilla of summary judgment evidence that raises a genuine issue of material fact as to each

essential element identified in the motion. Id. & cmt (1997); Sw. Elec. Power Co. v. Grant. 73

S.W.3d 211, 215 (Tex. 2002). More than a scintilla of evidence exists if the evidence would

allow reasonable and fair-minded people to reach the verdict under review. See City of Keller v.

Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d

167, 172 (Tex. 2003). Less than a scintilla of evidence exists when the evidence is so weak that it


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    Ravkind claimed that his signature on the Verification of Deposit was forged.
does no more than create   a mere   surmise or   suspicion of   a fact. h)rbes, 124 S.W3d at 172. We

must credit favorable evidence if reasonable jurors could and disregard contrary evidence unless

reasonable jurors could not. City of Keller, 168 S.W.3d at 827. To determine whether the

nonmovant met its burden, we review the summary judgment evidence in the light most

lavorable to the nonmovant and disregard all contrary evidence and inferences. Sudan v. Sudan,

199 S,W.3d 291, 292 (Tex. 2006) (per ctlriam) (quoting City of Keller, 168 S.W.3d at 823).

                                          Applicable Law

       The Supreme Court of Texas adopted section 552 of the Restatement (Second) of Torts as

the law of Texas with regard to a professional’s liability to a nonclient for negligent

misrepresentation. McCamish. Martin. Brown & Loeffler v. FE. Appling Interesis, 991 S.W.2d

787, 794 (Tex, 1999). To prove negligent misrepresentation, a plaintiff must show that the

defendant, in the course of his business or a transaction in which he had an interest, supplied

false information for the guidance of others without exercising reasonable care or competence in

communicating the information, that the plaintiff justifiably relied on the information, and that

the misrepresentation proximately caused the plaintiff’s injury. Kastner v. Jenkens & Gikhrist,

P.C., 231 S.W.3d 571, 577 (Tex. App.—Dallas 2007, no pet.). Liability is premised on the

professional’s “independent duty to the nonclient based on the professional’s manifest awareness

of the nonclient’s reliance on the misrepresentation and the professional’s intention that the

nonclient so rely.” McCa,nish, 991 S.W.2d at 792.

                                            Discussion

       Initially we must determine the scope of our review. Ravkind’s combined motion for

summary judgment contained a heading, “No Evidence               —   Justifiable Reliance.” Under that

heading, Ravkind argued that there was no evidence he made a representation to the Bank, no




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evidence the Bank was within the limited group oh recipients to whom he would have liability,

no evidence he made any representation concerning the Colgate properly loan, and no evidence

the Bank justifiably relied on any alleged misrepresentation. The Bank acknowledges in its brief

on appeal that the argument in the noevidence part of Ravkind’s motion was not limited to the

justifiablerel i ance element of a ci aim for negligent misrepresentation: “the actual argument

presented within the text of the motion appears to he (1) there is no evidence of a representation

by Ravkind: and (2) Bank of Texas was not within the class of recipients for which the law

imposes liabilities• therefore there could not have been reasonable and/or justifiable reliance.”

But the Bank contends that Ravkind challenged only the element of justifiable reliance and, as a

result, this Court is limited to an analysis of that element.

         We construe the Bank to argue that because the motion’s heading contained only the

element of justifiable reliance that we are limited to an analysis of the evidence on that element.

But appellate courts are to construe pleadmgs based on their content, not the labels assigned to

them. See Garza v. C7Z Mortg. Co., LLC. 285 S.W.3d 919, 925 (Tex. App.—l)allas 2009, no

pet.): Rush v. Barrios, 56 S.W.3d 88,93 (Tex. App.—Houston [1st Dist.j 2001, pet. denied). We

construe Ravkind’ s noevidence motion to challenge the element of representation as well as

justifiable reliance, and will analyze the issue accordingly.
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         In his motion. Ravkind argued that the Verification of Deposit was addressed to a

specific party, Troy Jones at Bright Mortgage. 1-Ic argued that the Bank had no evidence it was

the intended recipient or was within a limited group of intended recipients of the Verification of

Deposit. Relying on McCamish, Ravkind argued that “liability arises when a professional




 Ravkind also moved for traditional summary judgment on these same grounds.
transfers information to a known party For a known purpose.” See MeCamisli. 991 S .W.2d at

794.

       The Bank responded with evidence that it actually relied on the Verification of Deposit

signed by Ravkind and that the Verification of Deposit “was instrumental” in its decision to

make the loan to Lantrip. It offered evidence that it received the Verification of Deposit from a

mortgage broker at Metropolitan Mortgage     and   that it was “industry practice” for residential

construction loans to be “packaged and presented by a mortgage company.” The Bank also

presented evidence that it was not concerned about the Verification of Deposit being addressed

to a different mortgage company because a borrower “will submit a loan to multiple lenders

simultaneously.”

       Although the Supreme Court of Texas agreed that professionals could face liability for

negligent misrepresentation to a nonclient, the court limited the professional’s liability to

situations in which the professional transfers the information “to a known party For a known

purpose.” Id. Several years later, the court reaffirmed that decision and expounded on it. It

explained that a “known party” is limited to situations “in which the professional who provides

the information is ‘aware of the nonclient and intends that the nonclient rely on the

information.” Grant Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 920 (Tex.

2010) (quoting McCatnish, 991 S.W.2d at 794). It cited with approval courts which have held

that the professional must have actual knowledge of the party to whom the information is

provided and the purpose for which the information is provided. Id. at 920 n.h (quoting Ervin v.

Mann Frankfrrt Stein & Lipp CPAs, LLP, 234 S.W.3d 172, 177 (Tex. App.—San Antonio 2007,

no pet.) and Abrams Ctr. Nat’l Bank v. Farmer, Fuqua & Huff P.c., 225 S.W.3d 171, 177 (Tex.

App.—El Paso 2005, no pet.)).




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           The l3ank did not present any evidence that Ravkind had actual knowledge that the

Verification of Deposit was being provided to the Bank, and it did not present any evidence that

Ravkind had actual knowledge that the Verification of Deposit was being supplied for the

Colgate properly loan. In tact, there is no summary judgment evidence                                      connecting       Ravkind to

the Bank or the Colgate property loan. The Verification of Deposit was addressed to Bright

Mortgage, a different mortgage company from the one that supplied it to the Bank (Metropolitan

Mortgage). And the Verification of Deposit did not state any purpose for which the form was

being completed other than for a “mortgage loan.”

           Despite this, the Bank argues that Ravkind intended the form to “reach a lender to Lantrip

and intended to verify assets for underwriting a loan to Lantrip. Ravkind, an experienced white

collar crimmal defense attorney, knew and recognized the purpose of the Verification of

Deposit.” The Bank argues that “Ravkind, by making the misrepresentations, invited a lender to

Lantrip to rely on his verification. Bank of Texas was that lender.” However, to hold Ravkind

liable to any lender who may have come into possession of the Verification of Deposit addressed

to Bright Mortgage “would ‘eviscerate the Restatement rule in favor of a de facto foreseeability

approach—an approach [wel have refused to embrace” and would render meaningless the

restriction upon liability to those within a limited group of intended recipients. Grant Thornton,

314 S.W.3d at 921 (quoting Scottish Heritable Trust, PLC v. Peat Marwick Main & Co., 81 F.3d

606, 613 (5th Cir. 1996)).

          We conclude that the Bank did not present any summary judgment evidence raising a fact

issue that Ravkind made a representation to the Bank regarding the loan on the Colgate property



  The form states. To Depository; I/We have applied for a mortgage loan and stated in my/our financial statement that the balance on deposit
with you is shown as above. You are authorized to verify this information and to supply to the Lender identified ahove. The lender was
identified as Bright Mortgage.




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as is required to   suppoil a   claim for negligent misrepresentation. Consequently. the trial court did

not err by granting Ravkind’s noevidence motion for summary judgment.

                                                Conclusion

        We resolve issue one against appellant. Because of our disposition of issue one, we do

not need to reach the remaining issues. We affirm the trial court’s judgment.




                                                         ‘EL1ZA,3ET[1 LANGM1ERS
                                                          J USTJtE


111 123FY05




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                                     (LLuTrt ni \ptiril
                         .‘FiIL1! JiLrirt ut                 iL Ji1Ii
                                          JUDGMENT

BANK OF TEXAS, N.A.. Appellant                       On Appeal from the 193rd Judicial District
                                                     Court, Dallas County. Texas
No. 054 IMI 12T-CV           V.                      Trial Court Cause No. I I6647,
                                                     Opinion delivered by Justice LangMiers,
WILLIAM RAVKIND, Appellee                            Justices Myers and Richter participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
       It is ORDERED that appellee William Ravkind recover his costs of this appeal from
appellant Bank of Texas, N.A.


                        th
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Judgment entered this        day of March, 2013.




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