                                                                                 ACCEPTED
                                                                             12-15-00256-CV
                                                                TWELFTH COURT OF APPEALS
                                                                              TYLER, TEXAS
                                                                       11/30/2015 1:55:50 PM
                                                                                   Pam Estes
                                                                                      CLERK

                    CAUSE NO. 12-15-00256-CV

                                                            FILED IN
                                                     12th COURT OF APPEALS
               IN THE COURT OF APPEALS FOR        THE TYLER, TEXAS
                    12TH DISTRICT OF TEXAS           11/30/2015 1:55:50 PM
                         TYLER, TEXAS                       PAM ESTES
                                                              Clerk


                          SANGER BANK,
                            Appellant,

                                  v.

                 DAVID CHRISTOPHER FRANKENS
                   AND KATHRYN FRANKENS,
                           Appellees.


              Appealed from County 217th District Court
                      Angelina County, Texas
            The Honorable Robert K. Inselmann, Presiding


                      APPELLANT’S BRIEF


                ORAL ARGUMENT REQUESTED

Ryan Thomas Webster                    and
Texas Bar No. 24066272                 Robert Alderman
ryan@wtwlawfirm.com                    Texas Bar No. 00979900
R. William Wood                        balderman@aldermancainlaw.com
Texas Bar No. 21906000                 Robert Cain
bill@wtwlawfirm.com                    Texas Bar No. 03907200
WOOD, THACKER & WEATHERLY, P.C.        rcain@aldermancainlaw.com
400 West Oak Street, Suite 310         Alderman Cain & Neill, PLLC
Denton, Texas 76201                    P.O. Box 153237
Tel. (940) 565-6565                    Lufkin, TX 75915-3237
Fax: (940) 566-6673                    Tel. (936) 633-4209
Attorneys for Appellants               Fax: (936) 632-3316
                                       Attorneys for Appellant
             IDENTITY OF PARTIES AND COUNSEL

Appellant:               Sanger Bank

Counsel for Appellant:   Ryan Thomas Webster
                         Texas Bar No. 24066272
                         Email: ryan@wtwlawfirm.com
                         R. William Wood
                         Texas Bar No. 21906000
                         Email: bill@wtwlawfirm.com
                         WOOD, THACKER & WEATHERLY, P.C.
                         400 West Oak Street, Suite 310
                         Denton, Texas 76201
                         Tel. (940) 565-6565
                         Fax: (940) 566-6673
                         and
                         Robert Alderman
                         Texas Bar No. 00979900
                         balderman@aldermancainlaw.com
                         Robert Cain
                         Texas Bar No. 03907200
                         rcain@aldermancainlaw.com
                         Alderman Cain & Neill, PLLC
                         P.O. Box 153237
                         Lufkin, TX 75915-3237
                         Tel. (936) 633-4209
                         Fax: (936) 632-3316

Appellees:               David Christopher Frankens
                         Kathryn Frankens

Counsel For Appellees:   Krystal E. Rylie
                         Texas Bar No. 24065977
                         Email: kriley@skeltonslusher.com
                         SKELTON SLUSHER BARNHILL
                          WATKINS WELLS, PLLC
                         1616 South Chestnut
                         Lufkin, TX 75901
                         Tel. (936) 6532-2300
                         Fax: (936) 632-6545


APPELLANT’S BRIEF                                           i
                                    TABLE OF CONTENTS



Identity of Parties and Counsel .................................................................... i

Table of Contents ........................................................................................ ii

Index of Authorities ................................................................................... iv

Statement of the Case .................................................................................. 1

Issues Presented .......................................................................................... 1

Statement of Facts ....................................................................................... 2

Summary of the Argument .......................................................................... 6

Argument .................................................................................................... 8

        A.       The trial court abused its discretion by granting Plaintiffs’
                 temporary injunction because Plaintiffs failed to prove
                 that they have a probable right to the relief sought .................. 8

                 1. The Frankens did not prove that they have a
                    probable right to the relief sought under any
                    of their claims against Sanger Bank.................................... 9

                 2. The Frankens did not establish a probable right
                    to relief on their breach of contract claim against
                    Sanger Bank ....................................................................... 10

                 3. The Frankens’ negligent misrepresentation claim
                    fails under the economic loss rule and they did not
                    establish a probable right to relief ................................... 13

                 4. Because the Frankens’ loan is not a good or service,
                    they are not “consumers” with standing to pursue
                    a claim against the Defendants under the Texas
                    Deceptive Trade Practices Act. Additionally, they
                    failed to show that Sanger Bank’s omission was the
                    producing cause of their alleged injuries ......................... 17

                                           _                                                            __
APPELLANT’S BRIEF                                                                                       ii
                 5. The Frankens did not establish a probable right
                    to relief for civil conspiracy .............................................. 18

        B.       The Order Granting Temporary Injunction should
                 be dissolved and the order declared void because
                 it does not contain a valid trial setting ................................. 18
Prayer ........................................................................................................ 20

Certificate of Service.................................................................................. 21

Certificate of Compliance .......................................................................... 22




                                            _                                                              __
APPELLANT’S BRIEF                                                                                          iii
Cases:

1.    Brown v. Bank of Galveston Nat. Ass’n
          930 S.W.2d 140
          (Tex. App. Houston [14th Dist.] 1996
          Aff’d. 963 S.W. 2d 511 (Tex. 1998) .......................................... 17

2.    Butnaru v. Ford Motor Company
           84 S.W.3d 198 (Tex. 2001) ....................................................... 8

3.    City of Amarillo v. Premium Standard Farms, Inc.
            No. 07-06-0467-CV, 2007 WL2163399, at *1
            (Tex. App.—Amarillo, 2007)............................................... 9, 10

4.    Cook v. Tom Brown Ministries
           385 S.W.3d 592
           (Tex. App.—El Paso 2012, pet. denied) .................................... 8

5.    Doe v. Boys Clubs of Greater Dallas, Inc.
           907 S.W.2d 472 (Tex. 1995).................................................... 17

6.    Emex Holdings, LLC v. Naim
          No. 13-09-591-CV, 2010 WL 2163139 at *2
          Tex. App. – Corpus Christi 2010, no pet.) ........................ 19, 20

7.    EOG Res. Inc. v. Gutierrez
          75 S.W.3d 50
          (Tex. App.—San Antonio 2002, no pet.)................................. 19

8.    Excel Corp. v. Apodaca
            81 S.W.3d 817 (Tex. 2002) ..................................................... 16

9.    Grant Thornton, LLP v. Prospect High Income Fund
           314 S.W.3d 913 (Tex. 2010) .................................................... 15

10.   InterFirst Bank San Felipe, N.A. v. Paz Const. Co.
            715 S.W.2d 640 (Tex. 1986) .................................................... 19




                                   _                                                    __
APPELLANT’S BRIEF                                                                       iv
11.    Maddox v. Vantage Energy, LLC
           361 S.W.3d 752
           (Tex. App.—Fort Worth 2012, pet. denied) ............................ 15

12.    Massey v. Armco Steel Co.
           652 S.W.2d 932 (Tex. 1983) ................................................... 18

13.    Mead v. Johnson Grp., Inc.
           615 S.W.2d 685 (Tex. 1981) ..................................................... 11

14.    Missouri Pac. R. Co. v. Am. Statesman
            552 S.W.2d 99 (Tex. 1977) ...................................................... 16

15.    Riverside Nat. Bank v. Lewis
            603 S.W.2d 169 (Tex. 1980) ................................................... 17

16.    Sterling Chemicals, Inc. vs. Texaco, Inc.
             259 S.W.3d 793 (Tex. App. Houston [1st Dist.] 2007) ............ 13

17.    Velvet Snout, LLC v. Sharp
            441 S.W.3d 448 (Tex. App.—El Paso 2014, no pet.) ............... 10

18.    Walker v. Packer
           827 S.W.2d 833 (Tex. 1992) ..................................................... 8

19.    Willis v. Marshall
             401 S.W.3d 689 (Tex. App.—El Paso 2013, no. pet) ............... 14


Rules

Texas Rule of Civil Procedure 683 ...................................................... 19, 20




                                     _                                                   __
APPELLANT’S BRIEF                                                                        v
                         STATEMENT OF THE CASE

         David Frankens and Kathryn Frankens sued Sanger Bank for breach of

contract, negligent misrepresentation, DTPA violations, civil conspiracy, and

wrongful foreclosure. (C.R. at 27-39 & 107). The Frankens seek monetary

relief and to enjoin Sanger Bank from foreclosing on the subject property.

(Id.) The Honorable Robert K. Inselmann, Jr. granted an ex parte temporary

restraining order. (C.R. at 36 & 40) On October 5, 2015, he granted the

Frankens’ application for temporary injunction. (C.R. at 107) The Order

Granting Temporary Injunction is the subject of this accelerated appeal. This

case is still pending in the trial court.

                                Issues Presented

   I.      To obtain a temporary injunction the applicant must plead and prove
           that it has a probable right to the relief requested. Did the trial court
           abuse its discretion by granting Plaintiffs’ application for temporary
           injunction when Plaintiffs failed to show a probable right to relief
           against the enjoined party?

   II.     Every order granting a temporary injunction must include a final
           trial setting; otherwise, it is subject to being declared void and
           dissolved. If the stated trial setting is delayed, the order must be
           renewed. In this case, the Order Granting Temporary Injunction set
           the final trial for October 15, 2015. The case was not tried, and the
           order was not renewed. Should that order be declared void and
           dissolved?


                                _                                          __
APPELLANT’S BRIEF                                                          1
                          STATEMENT OF FACTS

      On August 15, 2015, the Appellees, David and Kathryn Frankens (the

Frankens), obtained an ex parte temporary restraining order to enjoin the

September 1, 2015 foreclosure sale of the subject property. (C.R. at 36 & 40)

On October 5, 2015, the trial court granted the Frankens’ application for

temporary injunction and further enjoined the foreclosure sale. (C.R. at 107).

That order is the subject of this appeal.

      This lawsuit arose from a $252,000 residential home loan that Sanger

Bank made to the Frankens on December 19, 2014. (C.R. at 16; R.R. at 75, l. 17

- 19) The loan proceeds were for the purchase of land and construction of a

house. (R.R. at 33 & 38) The land and house are security for the loan. Sanger

Bank released $60,000 of the loan proceeds directly to the title company to

pay for the land. (R.R. at 79, l. 15 -11) Sanger Bank disbursed $58,876.53 of

the construction loan proceeds incrementally upon completion of certain

phases of the house pursuant to an agreed-upon draw formula. (R.R. at 83, l.

11 – 16; at P-2 & D-1) Sanger Bank has disbursed only $118,876.53 of the

$252,000 made available to the Frankens. (R.R. at 83, l. 11 – 16)

      Mrs. Frankens signed the requisite loan documents and other related

documents as Mr. Frankens’ attorney-in-fact. (R.R. at 22 & 24; at P-1) One of

those documents was a Lender’s Disbursement Statement Authorization
                              _                                        __
APPELLANT’S BRIEF                                                      2
(Authorization). (R.R. at P-2) The Authorization allowed the borrower to

select how Sanger Bank would make distributions (e.g. deposit the funds in

the borrower’s account or disburse the funds to the contractor). Mrs.

Frankens checked a box that instructed Sanger Bank to deposit all

construction disbursements into a Construction Loan Account maintained by

Mr. Frankens at Sanger Bank. (R.R.at P-2) The relevant language in the

Authorization reads as follows:

     I/We, the above referenced Borrowers, hereby direct Lender
     [Sanger Bank] to disburse construction advances on the above
     referenced loan as follows:

     1) All disbursements are to be made by deposit from Lender into
     an account maintained at Lender’s office created by Borrower for
     the disbursement of construction advances with signing privileges
     according to the account agreement. Use of the Construction Loan
     Account is restricted to the above-referenced transaction and as
     set out in the Construction Loan Agreement and shall not be used
     for any other purpose.
        …
     If Lender disburses pursuant to option 1or 2 above, Lender shall
     obtain from Contractor the signed periodic statement (draw
     request) that covers the funds for which the Contractor is
     requesting payment and provide to the Borrower a statement of
     funds disbursed (disbursement statement) by the Lender since
     the last statement was provided to the Borrower. The
     disbursement statement and copy of the draw request will be
     provided to the Borrower on the same day that Lender disburses
     to Contractor. Lender will provide said disbursement statement
     and draw request to Borrower. Lender, at Lender’s option, may
     provide the disbursement statement to Borrower by either 1) hand
     delivery to Borrower before disbursement, 2) depositing the
     disbursement statement in the United States mail, postage
                             _                                          __
APPELLANT’S BRIEF                                                       3
      prepaid on the same day of disbursement, or 3) faxed or emailed
      to Borrower. Borrower agrees that any of these delivery methods
      are acceptable to Borrower and will constitute constructive notice
      at the time Lender places said documents in the mail….

      Lender may, at Lender’s election, at any time choose to pay
      subcontractors, contractors and/or materialmen directly in lieu of
      the method selected above.…
      (R.R. at P-2)

      Instead of opening a Construction Loan Account, Mr. Frankens orally

instructed Sanger Bank to deposit the disbursements into Benrich Investment

Group, LLC’s (Benrich) bank account. (C.R. at 113; R.R. at 75, l.1-14)

      On or about December 19, 2014, the Frankens hired contractor Benson

Construction to build their house. (R.R. at P-1) Mr. Frankens is the son of

Bradina Benson, an owner of Benson Construction, Benrich, and the other

entity defendants in this lawsuit (excluding Sanger Bank). (R.R. 21, l.1-10)

Between January 2014 and early April 2015, Sanger Bank made eight

construction loan disbursements into Benrich’s account. (C.R. at 113; R.R.at

75, l. 1-14 at 91, l. 5 – 10; at D-1)

      In April 2015, the Frankens and Benson Construction had a falling out.

(R.R.at 44, l. 6-9) Before the house was completed, Mr. Frankens fired

Benson Construction and told the Bensons not to come back to the subject

property. (R.R. at 51, l. 24- 52, l. 5) Benson Construction had poured the

foundation and built at least seventy percent of the frame. (R.R. at 61, l. 3-8)
                                 _                                       __
APPELLANT’S BRIEF                                                        4
The Frankens have not hired a new contractor to take over construction and

failed to protect the partially constructed house from the elements. (R.R. at

46-48) They now contend that the house will need to be rebuilt due to the

resulting damage. (R.R. at 54, l. 25 – 56, l. 4) Sanger Bank became concerned

about its collateral and elected to exercise its right to foreclose on the subject

property. (R.R. at 83, l. 24 - 84, l. 2) The Frankens then filed this lawsuit.

(C.R. at 14, 31 &35)

      At the time of the injunction hearing, the Frankens’ claims in the

lawsuit against Sanger Bank included breach of contract, negligent

misrepresentation, DTPA violations, civil conspiracy, and wrongful

foreclosure of the subject property (this claim was not repleaded in the live

petition). (C.R. at 27-39 & 107)




                               _                                          __
APPELLANT’S BRIEF                                                         5
                    SUMMARY OF THE ARGUMENT

     The Frankens failed to prove that they have a probable right to relief on

any of their claims against Sanger Bank (breach of contract, negligent

misrepresentation, DTPA violations, and conspiracy). The trial court,

therefore, abused its discretion by grating the Frankens’ temporary

injunction.

      With regard to each of their claims, the Frankens failed to prove that

Sanger Bank’s act or omission caused their alleged damages. The evidence

also shows that the Frankens did not perform their obligations under the

applicable contract. Their negligent misrepresentation claim fails under the

economic loss rule and because a promise to perform some future act (send

disbursement notices) is not actionable as negligent misrepresentation. The

Frankens also failed to prove that Sanger Bank made a false statement or

failed to exercise reasonable care. The Frankens could not have justifiably

relied on Sanger Bank to send notices because the Frankens had not

performed the condition precedent that triggers Sanger Bank’s obligation.

The Frankens offered no evidence of their status as “consumers” with

standing to pursue DTPA claims. And, other than proving the existence of

more than one defendant, they provided no evidence of a conspiracy.
                             _                                           __
APPELLANT’S BRIEF                                                        6
        Additionally, the order granting temporary injunction does not contain

a valid trial setting and, therefore, should be declared void. An order granting

temporary injunction must contain a trial setting. If the trial is delayed, the

order must be renewed. An order that does not comply with this rule is

subject to being declared void. The Order Granting Temporary Injunction

contains a trial setting on October 15, 2015. That date passed without a trial

and the order, the order was not renewed, and should, therefore, be declared

void.




                               _                                         __
APPELLANT’S BRIEF                                                        7
                                   ARGUMENT

   A. The trial court abused its discretion by granting Plaintiff’s
      temporary injunction because Plaintiffs failed to prove that
      they have a probable right to the relief sought.

      A temporary injunction is an extraordinary remedy and does not issue

as a matter of right. Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Whether to grant or deny a temporary injunction is within the trial court’s

sound discretion. Id. A trial court has no discretion in determining what the

law is or in applying the law to the facts. Id. A trial court abuses its discretion

by granting injunctive relief when the facts do not definitively indicate that

the enjoined party is in violation of the law. See Cook v. Tom Brown

Ministries, 385 S.W.3d 592, 600 (Tex. App. – El Paso 2012, pet. denied).

Consequently, a court abuses its discretion if there is a clear failure to analyze

or apply the law correctly. Id.

      To obtain a temporary injunction, the applicant must plead and prove

three specific elements: (1) a cause of action against the defendant; (2) a

probable right to the relief sought; and (3) a probable, imminent, and

irreparable injury in the interim. Butnaru v. Ford Motor Company, 84

S.W.3d 198, 204 (Tex. 2001).




                               _                                          __
APPELLANT’S BRIEF                                                         8
   1. The Frankens did not prove that they have a probable right to
      the relief sought under any of their claims against Sanger
      Bank.

      With regard to Sanger Bank, the only wrongdoing the Frankens have

alleged is that it did not provide the Frankens notice of the distributions in

accordance with the Authorization. (R.R.at 32, l.15-34, l. 11) This alleged

wrongdoing is the basis for each of the claims against Sanger Bank. The

Frankens pleaded that $19,000 in fraudulent draws were requested and paid.

(C.R. at 31) They also put on evidence about how the rain and their failure to

hire a contractor to replace Benson Construction damaged the partially

constructed home. (R.R. at 46-48) They did not, however, provide evidence

that Sanger Bank caused these damages.

      Establishing a probable right of recovery mandates the presentation of

some evidence satisfying the elements of the cause of action. For instance,

because our common law recognizes a cause of action for breach of contract,

that does not ipso facto mean that anyone who merely asserts that his

opponent breached the agreement is entitled to relief, preliminary or

otherwise. City of Amarillo v. Premium Standard Farms, Inc., No. 07-06-

0467-CV, 2007 WL 2163399, at *1 (Tex. App. – Amarillo, 2007). Some

evidence of each element of a claim must be presented to the trial court before


                              _                                          __
APPELLANT’S BRIEF                                                        9
it can legitimately say that there indeed exists any probability that the

complainant may recover upon the allegation. Id.

   2. The Frankens did not establish a probable right to relief on
      their breach of contract claim against Sanger Bank.

      The elements of a breach of contract claim are: (1) the existence of a

valid contract; (2) performance by the plaintiff; (3) breach of the contract by

the defendant; and (4) damages to the plaintiff resulting from that breach.

Velvet Snout, LLC v. Sharp, 441 S.W.3d 448, 451 (Tex. App. – El Paso 2014,

no pet.).

      The Frankens made the court aware of only two contracts at the

temporary injunction hearing – the Residential Construction Contract and

the Authorization. (R.R. at 30, l. 20 - 32, l. 13; at P-1; at P-2)

      Sanger Bank is not a party to the Residential Construction Contract.

(R.R. at P-1). That contract is between Benson Construction and the

Frankens. (Id.) Plaintiffs pleaded that Benson Construction assigned Sanger

Bank its rights to any lien created by the Residential Construction Contract.

(C.R. at 111-12) That assignment, however, did not purport to impose any

obligations on Sanger Bank. (R.R. at P-1, 6) Additionally, the contract

language does not impose any obligations on Sanger Bank. (R.R. at P-1)



                                _                                           __
APPELLANT’S BRIEF                                                           10
Sanger Bank could not have breached the Residential Construction Contract

because it is not a party and has no obligations under that agreement.

       Next, the Frankens complain that Sanger Bank breached the

Authorization by failing to send Mr. Frankens disbursement statements on

the same day it made disbursements to Benson Construction. (R.R. at 32, l.15

- 34, l. 11)

       The undisputed evidence shows that the Frankens first failed to perform

their obligation under the Authorization by failing to open a Construction

Loan Account with Sanger Bank. (R.R. at 74, l. 22 – 25; at P-1). Opening that

account was a prerequisite to Sanger Bank becoming obligated to send notice

pursuant to the Authorization. (R.R. at P-1) As a result, the Authorization did

not impose any obligations on Sanger Bank. (R.R. at P-1) The Frankens,

therefore, failed to establish a probable right to relief for breach of the

Authorization.

       The Frankens also failed to show that Sanger Bank caused any damages

by allegedly breaching the Authorization. To recover damages in a breach of

contract action, the Frankens must show that the damages sought were the

natural, probable, and foreseeable consequence of Sanger Bank's conduct.

Mead v. Johnson Grp., Inc., 615 S.W.2d 685, 687–88 (Tex.1981). The


                               _                                              __
APPELLANT’S BRIEF                                                             11
Frankens failed to show that their alleged damages resulted from Sanger

Bank’s failure to comply with obligations contained in the Authorization.

      The Frankens contend that had Sanger Bank sent them detailed draw

request, they would have been able to stay on budget and know where the

loan money went. (R.R. at 43, l. 15 – 21) Regarding the Frankens’ knowledge

of the costs and distributions from Sanger Bank, the evidence shows that the

Frankens knew about the disbursements made, the costs of construction, and

that they did not complain to Sanger Bank about the disbursement amounts.

(R.R., 86, l. 11-22) Sanger Bank sent Mr. Frankens monthly statements for

payment of the interest owed on the loan disbursements. (R.R. at 84, l. 11 -

16) These statements showed the amount of draws made and the interest

accrued on those draws. (R.R. at 85, l. 19 – 86, l. 5; at D-2) The Frankens

received these statements, as evidenced by the fact that they made the

requested payment each month. (R.R. at 85, l. 18 - 22). Additionally, Mr.

Frankens actively participated in building the house. (R.R. at 29) The

Frankens also negotiated checks written on Benrich’s bank account to pay for

labor and materials used in building the house. (R.R. at 39, l.13 - 40 l. 21; at

86, l. 6 - 15) The Bensons gave the Frankens blank, signed checks. The

Frankens would then fill out those checks and give them to the appropriate

vendor or subcontractor. (R.R. at 102, l. 6 - 12) Throughout the relevant time
                              _                                           __
APPELLANT’S BRIEF                                                         12
period (December – April), the Frankens were provided with the distribution

amounts and had knowledge of the basis for those distributions because they

actually delivered payment for much of the work and materials that lead to

those distributions. (C.R. at 81, l. 18 – 22; R.R. at 39, l.13 - 40 l. 21; at 86, l. 6 -

15)

      The Frankens did not offer any evidence that they performed their

contractual obligations, that Sanger Bank breached its contractual

obligations, or that Sanger Bank caused their alleged damages. Accordingly,

because the Frankens failed to show a probable right of recovery, the trial

court abused its discretion by grating the temporary injunction based on this

claim.

   3. The Frankens’ negligent misrepresentation claim fails under
      the economic loss rule and they did not establish a probable
      right to relief.

      Under the economic loss rule, the Frankens may not bring a claim for

negligent misrepresentation because they have not suffered an injury that is

distinct, separate, and independent from the economic losses they seek to

recover under their breach of contract claim. Sterling Chemicals, Inc. v.

Texaco Inc., 259 S.W.3d 793, 797 (Tex. App. Houston [1st] 2007).




                                _                                              __
APPELLANT’S BRIEF                                                              13
      The elements of a negligent misrepresentation cause of action are:

(1) defendant's representation to a plaintiff in the course of defendant's

business or in a transaction in which the defendant had an interest;

(2) defendant's providing false information for the guidance of others;

(3) defendant's failure to exercise reasonable care or competence in obtaining

or communicating information; (4) plaintiff's justifiable reliance on

defendant's representation; and (5) defendant's negligent misrepresentation

proximately causing the plaintiff's injury. Willis v. Marshall, 401 S.W.3d 689,

698 (Tex. App.-El Paso 2013, no pet.).

      The representation by Sanger Bank that the Frankens complain about is

contained in the Authorization. (R.R. at 32, l. 15 – 33, l. 5) It states that

Sanger Bank will send notice of disbursements on the same day they are

made. However, such notice is only required if the Frankens had opened a

Construction Loan Account. (R.R. at P-2)

      The Frankens did not establish that the representation in the

Authorization was false or made without exercising reasonable care. Sanger

Bank’s obligation to send notice was conditioned upon Mr. Frankens first

opening an account, which he did not do. (R.R. at 74, l. 22-25; at P-2)

Whether the representation was false and made with reasonable care cannot


                               _                                           __
APPELLANT’S BRIEF                                                          14
be determined because Sanger Bank’s obligation to send notice per the

Authorization never arose.

      Additionally, a promise to do or to refrain from doing an act in the

future is not actionable as a negligent misrepresentation because it does not

concern an existing fact. Maddox v. Vantage Energy, LLC, 361 S.W.3d 752,

760-61 (Tex. App. – Fort Worth 2012, pet. denied.). The alleged

misrepresentation is not actionable because it is a promise to do an act/send

notices in the future.

      The Frankens could not have justifiably relied on the Authorization.

Justifiable reliance requires reasonable reliance by the Frankens. Grant

Thornton LLP v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex.

2010). Reliance on the Authorization in this case is not reasonable. The

Frankens knowingly did not perform their obligation to open an account - a

prerequisite to Sanger Bank’s performance. (R.R. at 74, l 22-25; at P-2)

Instead, Mr. Frankens instructed Sanger Bank to deposit the disbursements

into Benrich’s account. (C.R. at 113; R.R. at 75, l. 1-14) The Frankens could not

reasonably rely on Sanger Bank to comply with the Authorization when the

Frankens knowingly failed to perform the conditions precedent.

      Finally, the representations complained of were not the proximate

cause of the alleged injuries. Proximate cause consists of two elements:
                              _                                         __
APPELLANT’S BRIEF                                                       15
(1) cause in fact, and (2) foreseeability. Missouri Pac. R. Co. v. Am.

Statesman, 552 S.W.2d 99, 103 (Tex. 1977). Cause in fact requires that the

negligent act or omission was a substantial factor in bringing about the injury

and without which no harm would have occurred. Id. A finding of cause in

fact cannot be supported by mere conjecture, guess, or speculation, but may

be based on either direct or circumstantial evidence. Excel Corp. v. Apodaca,

81 S.W.3d 817, 820 (Tex. 2002) The Frankens did not put on evidence which

shows that but for the statements in the Authorization, they would not have

suffered their alleged damages. Additionally, Sanger Bank was obligated to

disburse the amounts it disbursed pursuant to the agreed upon formula and

confirmation of work by independent inspectors. (R.R.at 89, l. 9 - 95; at D-4)

In other words, if notice were sent on the date of each disbursement, the same

disbursement still would likely have been made. The element of foreseeability

requires a showing that a person of ordinary intelligence should have

anticipated the danger to others by his negligent act. Am. Statesman, 552

S.W.2d, at 103. The Frankens did not put on evidence of how it is foreseeable

that the statements in the Authorization would cause injury to the Frankens.

      The Frankens failed to show a probable right of recovery for negligent

misrepresentation.


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APPELLANT’S BRIEF                                                        16
  4. Because the Frankens’ loan is not a good or service, they are
     not “consumers” with standing to pursue a claim against the
     Defendants under the Texas Deceptive Trade Practices Act.
     Additionally, they failed to show that Sanger Bank’s omission
     was the producing cause of their alleged injuries.

     A loan applicant who borrows money from a bank is not a consumer

because the act of borrowing money is not a good or service, and one must be

a consumer to have standing to sue under the DTPA. See Riverside Nat. Bank

v. Lewis, 603 S.W.2d 169, 174 (Tex. 1980); Brown v. Bank of Galveston, Nat.

Ass'n, 930 S.W.2d 140, 144 (Tex. App. Houston [14th]1996), aff'd, 963 S.W.2d

511 (Tex. 1998). The Frankens did not show that they were consumers with

standing under the DTPA.

     For DTPA claims, the Frankens must show that Sanger Banks’ actions

or omissions were the producing cause of their alleged damages. Doe v. Boys

Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995). A producing

cause is a substantial factor which brings about the injury and without which

the injury would not have occurred. Id. This requires some evidence that

Sanger Bank's act or omission was the cause in fact of the Frankens’ injury.

The Frankens must also show an “unbroken causal connection” between the

misrepresentation and their injuries. Id.



                             _                                         __
APPELLANT’S BRIEF                                                      17
      Plaintiffs offered no evidence of their consumer status under the DTPA.

As set forth in the foregoing section, the Frankens did not show that Sanger

Bank’s failure to send notices on the day distributions were made was the

cause in fact of their alleged injuries. There was also no evidence of an

unbroken causal connection between the representation and injuries.

      The Frankens failed to plead and prove that they have a probable right

to relief against Sanger Bank for allegedly violating the DTPA.

   5. The Frankens did not establish a probable right to relief for
      civil conspiracy.
      The essential elements are: (1) two or more persons; (2) an object to be

accomplished; (3) a meeting of minds on the object or course of action; (4)

one or more unlawful, overt acts; and (5) damages as the proximate result.

Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983). Beyond

showing that the Defendants are two or more people, the Frankens did not

prove a conspiracy involving Sanger Bank. The Frankens failed to prove that

they have a probable right to relief against Sanger Bank for conspiracy.

   B. The Order Granting Temporary Injunction should be
      dissolved and the order declared void because the it does not
      contain a valid trial setting.

      Rule 683 requires that every order granting a temporary injunction

shall include an order setting the cause for trial on the merits with respect to

                              _                                          __
APPELLANT’S BRIEF                                                        18
the ultimate relief sought. Tex. R. Civ. P. 683. Requiring a trial date on an

injunction order also places the onus upon the party requesting injunctive

relief to renew the injunction if the trial is delayed beyond the trial date set

forth in the order. Emex Holdings, LLC v. Naim, No. 13-09-591-CV, 2010

WL 2163139, at *2 (Tex. App. - Corpus Christi 2010, no pet.). Reference to an

existing docket control order is not a substitute for stating a trial date in the

order itself. Id. The reason for requiring that an injunction order include a

trial date is to protect the parties from being subject to a temporary

injunction made permanent by a court's failure to set the matter for a final

determination on the merits. EOG Res., Inc. v. Gutierrez, 75 S.W.3d 50, 53

(Tex. App. - San Antonio 2002, no pet.).

      The requirements of Rule 683 are mandatory and must be strictly

followed. InterFirst Bank San Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640,

641 (Tex. 1986). When a temporary injunction order does not adhere to the

requirements of Rule 683 the injunction order is subject to being declared

void and dissolved. Id.

      In this case, the Order Granting Temporary Injunction ordered that

trial on the merits be set for October 15, 2015 at 11:00 am. (R.R. at 108) The

case has not been tried, and the Frankens have not renewed the injunction.

(C.R.) The effect of an order with a trial date that has past is the same as an
                               _                                           __
APPELLANT’S BRIEF                                                          19
order that never contained a trial setting. In both cases, the injunction could

become permanent. The Order Granting Temporary Injunction does not

comply with Rule 683, and, therefore, should be declared void and dissolved.

See Naim, No. 13-09-591-CV, at 2.

                                   PRAYER

      Because the Frankens failed to show a probable right to the relief they

seek against Sanger Bank in this lawsuit and the Order Granting Temporary

Injunction does not set forth a valid trial date, Sanger Bank prays that this

Court reverse and render, or alternatively reverse and remand this matter to

the trial court.

                                     Respectfully submitted,

                                     WOOD, THACKER &
                                     WEATHERLY, P.C.
                                     400 West Oak Street, Suite 310
                                     Denton, Texas 76201
                                     (940) 565-6565
                                     (940) 566-6673 FAX


                                     /s/ Ryan Webster_________
                                     RYAN WEBSTER
                                     Email: ryan@wtwlawfirm.com
                                     Texas Bar No. 24066272
                                     R. WILLIAM WOOD
                                     Email: bill@wtwlawfirm.com
                                     Texas Bar No. 21906000

                                     and
                              _                                         __
APPELLANT’S BRIEF                                                       20
                                     Robert Alderman
                                     Texas Bar No. 00979900
                                     Email: balderman@aldermancainlaw.com
                                     Robert Cain
                                     Texas Bar No. 03907200
                                     Email: rcain@aldermancainlaw.com
                                     ALDERMAN, CAIN & NEIL, PLLC
                                     122 E. Lufkin Ave.
                                     Lufkin, Texas 75901-2805
                                     (936) 632-2259
                                     (936) 632-3316 FAX

                                     ATTORNEYS FOR APPELLANTS


                       CERTIFICATE OF SERVICE

      The undersigned hereby certifies that a true and correct copy of the
foregoing was served on the following attorneys of record, via electronic mail
to the e-mail address listed below, on this the 30th day of November, 2015, in
accordance with the Texas Rules of Appellate Procedure:

     Krystal E. Rylie
     SKELTON SLUSHER BARNHILL
      WATKINS WELLS, PLLC
     1616 South Chestnut
     Lufkin, TX 75901
     Email: kriley@skeltonslusher.com
     Attorneys for Appellees


                                         /s/Ryan Webster




                             _                                         __
APPELLANT’S BRIEF                                                      21
                    CERTIFICATE OF COMPLIANCE

      This brief complies with the typeface requirements of TEX. R. APP. P.
9.4(e) because it has been prepared in a proportionally spaced typeface
using Microsoft Word 14 point Georgia font (and 12 point for footnotes).

       This brief complies with the type-volume limitation of TEX. R. APP.
P. 9.4(i)(2)(D) because it contains 3,913 words, excluding the parts of the
brief exempted by TEX. R. APP. P. 9.4(i)(1).


                                   /s/ Ryan Webster___________




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APPELLANT’S BRIEF                                                      22
