                           NUMBER 13-13-00039-CV

                             COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG


ALICE DONAHUE,                                                         Appellant,

                                            v.

FIRST AMERICAN
TITLE COMPANY,                                                         Appellee.


              On appeal from the County Court at Law No. 3
                      of Cameron County, Texas.


                           MEMORANDUM OPINION

  Before Chief Justice Valdez and Justices Benavides and Longoria
           Memorandum Opinion by Chief Justice Valdez
      Appellant, Alice Donahue, appeals from the trial court’s summary judgment in

favor of appellee, First American Title Company. By one issue, Donahue contends that

a fact issue remains regarding her claim that appellee owed a duty to pay her a

commission. We affirm.
                                         I. BACKGROUND

       Donahue served as a real estate agent for the sale of a condominium by

Sapphire, VP, LP to Macualay and Celia Ojeaga. Donahue’s commission in the sale

was $36,000. The contract for the sale between Sapphire and the Ojeagas states that

Donahue is not a party to the sales contract. Before closing on the condominium in this

case, Sapphire determined that it had paid Donahue a one percent commission for the

sale of condominiums which were never sold.              Pursuant to the contract Donahue had

with Sapphire, she was not entitled to the commission unless the buyer completed the

purchase.       Sapphire instructed appellee, its escrow agent for the sale, not to give

Donahue the $36,000 commission and to instead return the money to Sapphire and

give Donahue a “credit” for payment to Sapphire. Appellee complied with Sapphire’s

instructions.

       Donahue filed suit against appellee for breach of fiduciary duty, statutory breach

pursuant to a sections 2651.157 and 2702.053 of the Texas Insurance Code, and

tortious interference with a contract. See TEX. INS. CODE ANN. §§ 2651.157 (explaining

that a title insurance agent’s license may be revoked if it fails to furnish an audit report

in a timely fashion or if the agent “furnishes an audit report that reveals any irregularity,

including a shortage, or any practice not in keeping with sound, honest business

practices”), 2702.053 (West 2009).1 Donahue sought return of the $36,000 plus interest


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           Section 2702.053 states:

       § 2702.053. Content of Closing and Settlement Statement

        (a) Each closing and settlement statement provided to a party to a transaction described by
Section 2702.052(a) must state the name of any person receiving any amount from that party.

        (b) Notwithstanding Subsection (a), the title insurance company or title insurance agent is
required to include in the closing and settlement statement only those items of disbursement that are

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and court costs. Donahue also sought punitive damages in the amount of $324,000.

Appellee filed a traditional motion for summary judgment or in the alternative, a plea in

abatement.       Donahue did not file a response to appellee’s motion for summary

judgment or plea in abatement. The trial court granted summary judgment to appellee

and ordered a take-nothing judgment for Donahue. This appeal followed.

                          II. APPLICABLE LAW AND STANDARD OF REVIEW

        In a traditional motion for summary judgment, the movant has the burden of

showing that no genuine issue of material fact exists and that it is entitled to judgment

as a matter of law. TEX. R. CIV. P. 166a; Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d

546, 548 (Tex. 1985). If the movant’s motion and summary judgment proof facially

establish a right to judgment as a matter of law, the burden shifts to the non-movant to

raise a material fact issue sufficient to defeat summary judgment. Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex.

App.—Austin 2000, no pet.); HBO, A Div. of Time Warner Entm’t Co., L.P. v. Harrison,

983 S.W.2d 31, 35 (Tex. App.—Houston [14th Dist.] 1998, no pet.). In deciding whether



actually disbursed by the company or agent.

       (c) If an attorney, other than a full-time employee of the title insurance company or title insurance
agent, examines a title or provides any closing or settlement services, the closing and settlement
statement must include:

                (1) the amount of the fee for the services, shown as included in the premium; and

        (2) the name of the attorney or, if applicable, the name of the firm to which the fee was paid.

       (d) The closing and settlement statement must conspicuously and clearly itemize the charges
imposed on the party in connection with the closing and settlement.

        (e) If a charge for title insurance is made to the party, the closing and settlement statement must
state whether the title insurance premium included in the charge covers the mortgagee's interest in the
real property, the borrower's interest, or both.

        TEX. INS. CODE ANN. § 2702.053 (West 2009).


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a disputed material fact issue precludes summary judgment, we resolve every

reasonable inference in favor of the non-movant and take all evidence favorable to it as

true. See Nixon, 690 S.W.2d at 548–49; Karl v. Oaks Minor Emergency Clinic, 826

S.W.2d 791, 794 (Tex. App.—Houston [14th Dist.] 1992, writ denied).

       A defendant seeking a traditional motion for summary judgment must either

disprove at least one element of each of the plaintiff’s causes of action or plead and

conclusively establish each essential element of any affirmative defense. Cathey v.

Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam); Sanchez v. Matagorda County,

124 S.W.3d 350, 352 (Tex. App.—Corpus Christi 2003, no pet.).              We review the

granting of a traditional motion for summary judgment de novo to determine whether a

party’s right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12

S.W.3d 172, 175 (Tex. App.—Dallas 2000, pet. denied). When, as in this case, the trial

court does not state the grounds upon which summary judgment was granted, we must

affirm the judgment if any of the grounds advanced in the motion for summary judgment

are meritorious. Branton, 100 S.W.3d at 647 (citing Carr v. Brasher, 776 S.W.2d 567,

569 (Tex. 1989)).

                                      III. DISCUSSION

       Appellee stated it was entitled to summary judgment based on the following: (1)

“As a matter of law, the Plaintiff was NOT a party to the Condominium Purchase

Contract in question. The contract language itself is clear. As a matter of law, the

Plaintiff’s allegations based on contract and fiduciary duty fail as a matter of law”; and

(2) “In addition, the summary judgment evidence reflects that Plaintiff received full credit

from Sapphire VP, LP for the $36,000 she was to receive for commissions from the



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transaction (See Exhibit ‘B’). Therefore, as a matter of law, Plaintiff cannot prove any

loss or damage as a result of this transaction. Plaintiff’s claims for damage resulting

from this Defendant’s closing of this transaction fail as a matter of law.”

        First, appellee claimed that because Donahue was not a party to the

“Condominium Purchase Contract in question,” her allegations based on contract and

fiduciary duty fail as a matter of law. “An escrow agent owes a fiduciary duty to both

parties, seller and buyer, to the underlying contract.”               Watkins v. Williamson, 869

S.W.2d 383, 387 (Tex. App.—Dallas 1993, no writ). The three elements of this fiduciary

duty are a duty of loyalty, a duty to make full disclosure, and a duty to exercise a high

degree of care to conserve the money and pay it only to those persons entitled to

receive it. Id. In this case, the summary judgment evidence conclusively showed that

Donahue was not a party to the sales contract between Sapphire and the Ojeagas.

Thus, appellee only owed a fiduciary duty to Sapphire and the buyers in this case. 2

Because Donahue was not a party to the sales contract, appellee did not owe Donahue

a fiduciary duty.      Therefore, the trial court properly granted summary judgment to

appellee on Donahue’s breach of fiduciary claim.

        Donahue also claimed that appellee breached its duty pursuant to sections

2651.157 and 2702.053 of the Texas Insurance Code. On appeal, Donahue explains

that pursuant to those sections, appellee had a duty to the “escrow parties.” Donahue

states that appellee did not allegedly get the consent “of all escrow parties before

undertaking” an action she claims was “contrary” to the sales contract between


        2
         We note that the fiduciary duty to Sapphire included a duty to pay the money at closing only to
those persons entitled to receive it, and Sapphire told appellee that Donahue was not entitled to receive
the commission.


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Sapphire and the Ojeagas. However, as stated above, Donahue was not a party to the

sales contract. Therefore, we conclude that because there is no evidence under these

facts that appellee owed Donahue a duty, the summary judgment was also properly

granted as to section 2651.157 and section 2702.053 claims.

       Moreover, it is well established that when a trial court grants summary judgment,

but its order does not provide the trial court’s reasoning, the appellant must negate each

independent ground asserted in support of the summary judgment. Humane Society v.

The Dallas Morning News L.P., 180 S.W.3d 921, 923 (Tex. App.—Dallas 2005, no pet.)

(citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995)); see also Hough v.

Brownsville Winter Haven Prop. Owners Ass’n, No. 13-06-0686-CV, 2007 Tex. App.

LEXIS 7200, at *8 (Tex. App.—Corpus Christi Aug. 31, 2007, pet. denied) (mem. op).

And, if the appellant fails to challenge one of the grounds for summary judgment, the

judgment may be affirmed on that ground alone. Humane Society, 180 S.W.3d at 923;

see also Hough, 2007 Tex. App. LEXIS 7200, at *8. Here, the trial court did not state

the reason for granting summary judgment in favor of appellee. Therefore, in order to

succeed on appeal, Donahue is required to challenge all possible grounds stated in

appellee’s motion for summary judgment.         However, on appeal, Donahue has not

challenged appellee’s summary judgment claim that she is unable to prove any loss or

damage because the summary judgment evidence proves that she received a credit for

$36,000. Accordingly, we affirm the trial court’s summary judgment on that ground.

See Holloway v. Skinner, 898 S.W.2d 793, 795–96 (Tex. 1995) (explaining that in order

to prevail on a claim of tortious interference with a contract, the plaintiff has the burden

to prove that she incurred actual damages). We overrule Donahue’s sole issue.



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                                  IV. CONCLUSION

      We affirm the trial court’s summary judgment.

                                                      ____________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice


Delivered and filed the
1st day of August, 2013.




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