Opinion filed March 14, 2014




                                     In The


          Eleventh Court of Appeals
                                  __________

                               No. 11-12-00055-CV
                                   __________


  DAVID BRITCHER AND JOYCE BRITCHER, Appellants
                       V.
 WELLS FARGO BANK, NATIONAL ASSOCIATION, Appellee

                On Appeal from the County Court at Law No. 2
                           Midland County, Texas
                     Trial Court Cause No. CC 14,463


                     MEMORANDUM OPINION
      David Britcher and Joyce Britcher appeal from the trial court’s take-nothing
summary judgment in favor of Wells Fargo Bank, National Association. We
affirm.
                                   Background
      The Britchers owned a business named Copies Galore. According to the
Britchers’ allegations, the Britchers entered into an agreement to sell the business
to Wendell and Lisa Smith. In order to complete the purchase, the Smiths sought
financing from Wells Fargo.
      On October 26, 2005, Stephanie Rotan, a business specialist at Wells Fargo,
sent a letter to the Britchers regarding the Smiths’ financing application. In the
letter, Rotan stated the following:
             This letter is to confirm to you that Wells Fargo Bank N.A. has
      approved a business acquisition loan to Lisa Smith. Total borrowings
      will exceed $42,000.00. We are working diligently to be able to fund
      the line of credit by Friday, October 28th. Funding of the business
      acquisition loan will take longer, we are hoping to satisfy the SBA
      requirements and have funds available in about nine days, and the
      longest may be two weeks.

In November, Wendell Smith informed the Britchers that Wells Fargo had denied
the Smiths’ request for a loan.
      The Britchers alleged in their petition that Rotan’s statement in her letter that
Lisa had been approved for a loan was false. Based on Rotan’s statement, the
Britchers alleged fraud and negligent misrepresentation claims against Wells
Fargo. The Britchers sought to recover damages that they alleged resulted from
their reliance on Rotan’s statement.
      Wells Fargo filed a combined traditional and no-evidence motion for
summary judgment based on the ground, among others, that it did not make a false
representation to the Britchers. The Britchers filed a response to the motion.
Following a hearing, the trial court entered an order in which it granted summary
judgment to Wells Fargo.
                                  Issues on Appeal
     The Britchers present three points of error for review. Specifically, the
Britchers contend (1) that the trial court erred when it granted summary judgment
in favor of Wells Fargo, (2) that the trial court erred when it granted summary


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judgment in favor of Wells Fargo on their negligent misrepresentation claim
because there were genuine issues of material fact on the claim and because Wells
Fargo was not entitled to judgment as a matter of law, and (3) that the trial court
erred when it granted summary judgment in favor of Wells Fargo on their fraud
claim because there were genuine issues of material fact on the claim and because
Wells Fargo was not entitled to judgment as a matter of law.
                                Standard of Review
      Wells Fargo asserted both traditional and no-evidence grounds for summary
judgment. See TEX. R. CIV. P. 166a(c), (i). Because the trial court did not specify
the grounds upon which it relied in granting the summary judgment, we will affirm
the summary judgment if any of the theories advanced are meritorious. Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989). We find the no-evidence grounds
dispositive. We review a no-evidence summary judgment under the same legal
sufficiency standard as a directed verdict. King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 750–51 (Tex. 2003). Accordingly, we examine the record in the light
most favorable to the nonmovant and disregard all contrary evidence and
inferences. Id.; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex.
2002). A no-evidence motion is properly granted if the nonmovant fails to bring
more than a scintilla of probative evidence to raise a genuine issue of material fact
as to a challenged element of the nonmovant’s claim on which the nonmovant
would have the burden of proof at trial. King Ranch, 118 S.W.3d at 751.
                                      Analysis
      The Britchers assert that the summary judgment evidence raised fact issues
on their fraud and negligent misrepresentation claims. To recover on a fraud
claim, a party must prove the following elements: (1) that a material representation
was made; (2) that it was false; (3) that, when the representation was made, the
speaker knew it was false or made it recklessly without any knowledge of the truth
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and as a positive assertion; (4) that the speaker made the representation with the
intent that it be acted upon by the other party; (5) that the party acted in reliance on
the representation; and (6) that the party thereby suffered injury. In re FirstMerit
Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001) (orig. proceeding); T.O. Stanley Boot
Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992). To recover on a
negligent misrepresentation claim, a plaintiff must prove the following elements:
(1) that a representation was made by the defendant in the course of business or in
a transaction in which it had a pecuniary interest; (2) that the defendant supplied
false information for the guidance of others in their business; (3) that the defendant
did not exercise reasonable care or competence in obtaining or communicating the
information; and (4) that the plaintiff suffered pecuniary loss by justifiably relying
on the representation. Fed. Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439,
442 (Tex. 1991).
      Rotan wrote the letter to the Britchers on October 26, 2005. Wells Fargo
asserts that Rotan’s statement in her letter that Lisa Smith had been approved for a
loan was true when Rotan made the statement.            Wells Fargo asserts that the
Britchers failed to present any summary judgment evidence that Rotan’s statement
was false when it was made and that, therefore, the trial court properly granted a
no-evidence summary judgment to it on the Britchers’ fraud and negligent
misrepresentation claims.
      The Britchers filed an affidavit of David Britcher in response to Wells
Fargo’s motion for summary judgment. In the affidavit, David stated that, on
October 11, 2005, Wendell Smith informed him that Wells Fargo had approved the
Smiths’ loan application. David also stated that he and Joyce received Rotan’s
October 26, 2005 letter. David also stated that, on November 8, 2005, Wendell
Smith informed him that Wells Fargo had denied the Smiths’ loan application.


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       The Britchers also presented Rotan’s deposition testimony as summary
judgment evidence. Rotan acknowledged in her testimony that she wrote the
October 26, 2005 letter to the Britchers. She testified that, as she stated in her
letter, Wells Fargo approved the loan to the Britchers and that “[i]t was already
approved” when she wrote the letter. Rotan also said that she did not know
whether the loan was disapproved after she wrote the letter.
       There was no summary judgment evidence that Lisa had not been approved
for a loan when Rotan wrote the letter. Nor was there summary judgment evidence
that explained why Lisa’s loan application was ultimately denied. The Britchers
did not present any summary judgment evidence that Rotan made a false statement
in her October 26, 2005 letter. In the absence of such evidence, the Britchers
failed to raise a genuine issue of material fact on a challenged element of their
fraud and negligent misrepresentation claims. Therefore, the trial court did not err
when it granted a no-evidence summary judgment to Wells Fargo. The Britchers’
points of error are overruled.
                                       This Court’s Ruling
       We affirm the judgment of the trial court.




                                                               JOHN M. BAILEY
March 14, 2014                                                 JUSTICE
Panel consists of: Wright, C.J.,
Bailey, J., and McCall. 1

Willson, J., not participating.



       1
        Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by
assignment.

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