                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-19-00192-CV

BILLY NEWMAN, RHONDA C. NEWMAN
AND JASMINE MARIE BILLINGS,
                                                             Appellants
v.

THANGAVEL P. SIVAM, MAHESWARI SIVAM
AND SENTHIL SIVAN,
                                   Appellees



                           From the 414th District Court
                             McLennan County, Texas
                            Trial Court No. 2018-1898-5


                           MEMORANDUM OPINION


       In two issues, appellants, Billy Newman, Rhonda C. Newman, and Jasmine Marie

Billings (collectively “the Newmans”), complain that the trial court erred by: (1) granting

summary judgment in favor of appellee, Thangavel P. Sivam; and (2) dismissing the
Newmans’ claims. Because we overrule both of the Newmans’ issues, we affirm the

judgment of the trial court.1

                                           I.      BACKGROUND

        This dispute centers on a lease agreement for a commercial building that was

intended to be used as a daycare facility for children, including physically-disabled

children.    According to their original petition, the Newmans leased a commercial

building located in Hewitt, Texas, from Thangavel. Apparently, the daycare facility was

never opened because the Newmans claimed that the building was not suitable and that

Thangavel would not make necessary repairs for occupation. As such, the Newmans

sued Thangavel for fraud and conspiracy to commit fraud.

        Thangavel filed an original answer denying all of the allegations contained in the

Newmans’ original petition and asserting an affirmative defense and a counterclaim

against the Newmans for $23,000 in past-due and future rent. The Newmans filed an

answer generally denying the allegations contained in Thangavel’s counterclaim and

subsequently amended their original petition to add Maheswari Sivam and Senthil Sivam




        1 In his motion for summary judgment, Thangavel contended that Jasmine Marie Billings was not
a party to the underlying lease agreement and, thus, is not a proper party in this matter. However, there
is nothing in the record severing Jasmine from this matter. The trial court awarded judgment in favor of
Thangavel and against Billy Newman, Rhonda C. Newman, and Jasmine as to the Newmans’ claims.
Furthermore, Billy, Rhonda, and Jasmine are jointly represented by counsel who filed a notice of appeal
specifically noting that Billy, Rhonda, and Jasmine appeal from the trial court’s judgment. Therefore, we
have no choice but to keep Jasmine in this suit, despite the fact that she does not appear to be a signatory
of the underlying lease.

Newman, et al. v. Sivam, et al.                                                                      Page 2
as parties and to request a jury trial.2 Thangavel, Maheswari, and Senthil jointly filed a

first amended answer and counterclaim for past-due and future rent.

        Thereafter, the Newmans answered the Sivams’ joint counterclaim and filed a

traditional motion for summary judgment as to the Sivams’ counterclaim for past-due

and future rent. In their traditional motion for summary judgment, the Newmans argued

that the Sivams’ counterclaim for past-due and future rent should be dismissed under the

theory of res judicata because the claim has been adjudicated in a related eviction action.

        Thangavel responded by filing a traditional motion for summary judgment on his

own behalf, asserting that he is entitled to past-due and future rent and reasonable and

necessary attorney’s fees as a matter of law and that the Newmans should recover

nothing by their fraud and conspiracy-to-commit-fraud claims. Thangavel, Maheswari,

and Senthil then filed a joint response to the Newmans’ traditional motion for summary

judgment pertaining to the Sivams’ counterclaim for past-due and future rent. The

Newmans did not respond to Thangavel’s motion for summary judgment. However,

Billy Newman executed and filed a pro se affidavit addressing the Sivams’ counterclaim

for past-due and future rent.

        The trial court granted summary judgment in favor of the Newmans as to the

counterclaim for past-due and future rent based on the theory of res judicata. However,




        2
          Thangavel Sivam will hereinafter be referred to as “Thangavel”; Maheswari Sivam will
hereinafter be referred to as “Maheswari”; and Senthil Sivam will hereinafter be referred to as “Senthil.”

Newman, et al. v. Sivam, et al.                                                                    Page 3
in its order, the trial court only referenced Thangavel and ordered that Thangavel take

nothing by his counterclaim. The trial court also granted summary judgment in favor of

Thangavel as to the Newmans’ fraud and conspiracy-to-commit-fraud claims and

ordered the dismissal of the Newmans’ claims. The Newmans filed a motion for new

trial, which was denied by the trial court. This appeal followed.

                                    II.    JURISDICTION

        In their notice of appeal, the Newmans listed Thangavel, Maheswari, and Senthil

as appellees. As mentioned above, Maheswari and Senthil were named as parties to this

suit in the Newmans’ first amended petition. In response, Thangavel, Maheswari, and

Senthil jointly filed a first amended answer and counterclaim for past-due and future

rent. The Newmans answered and filed a traditional motion for summary judgment as

to the Sivams’ joint counterclaim. Thangavel later filed a traditional motion for summary

judgment on his own behalf addressing the Sivams’ counterclaim, as well as the

Newmans’ claims. Thangavel, Maheswari, and Senthil then filed a joint response to

appellants’ traditional motion for summary judgment.        The trial court granted the

Newmans’ traditional motion for summary judgment as to the Sivams’ counterclaim.

However, in this order, the trial court only referenced Thangavel. Next, the trial court

granted summary judgment in favor of Thangavel himself with regard to appellants’

claims for fraud and conspiracy-to-commit-fraud claims. The trial court’s orders do not




Newman, et al. v. Sivam, et al.                                                    Page 4
appear to resolve any claims as to Maheswari and Senthil. In its order granting summary

judgment in favor of Thangavel, the trial court noted the following:

        IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court
        that Defendant [Thangavel] have, and hereby is granted a Summary
        Judgment dismissing Plaintiffs’ [the Newmans’] claims against the
        Defendant. As the Court has previously entered its Order dismissing Defendant’s
        Counter Claim, there are no further pending issues in the case.

(Emphasis added).

        The Texas Supreme Court has stated that an order is final for purposes of appeal

if it “actually disposes of every pending claim and party” or if “it clearly and

unequivocally states that it finally disposes of all claims and parties.” Lehmann v. Har-

Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). “[T]here must be some other clear indication

that the trial court intended the order to completely dispose of the entire case.” Id. The

emphasized statement in the trial court’s order granting summary judgment in favor of

Thangavel, though erroneous, is a clear indication that the trial court intended for the

order to completely dispose of all parties and claims in this case. See id. Accordingly, we

conclude that the judgment is final—erroneous, but final—for appellate purposes, and

this Court has jurisdiction to decide the issues presented on appeal. See id. at 200, 205.

                                  III.   SUMMARY JUDGMENT

        In two issues, argued together in the brief, the Newmans argue that the trial court

erred by: (1) granting summary judgment in favor of Thangavel as to the fraud and

conspiracy-to-commit-fraud claims, which Thangavel characterizes as the premises


Newman, et al. v. Sivam, et al.                                                           Page 5
claims; and (2) dismissing the premises claims without adequate support in the record.

We likewise will address the arguments together.

A.      Applicable Law

        We review a grant of a motion for summary judgment de novo. KCM Fin., LLC v.

Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015); Williams v. Parker, 472 S.W.3d 467, 469 (Tex.

App.—Waco 2015, no pet.). In a traditional motion for summary judgment, as was filed

by appellees, a movant must state the specific grounds; and a defendant who conclusively

negates at least one essential element of a cause of action or conclusively establishes all

the elements of an affirmative defense is entitled to judgment as a matter of law. See TEX.

R. CIV. P. 166a(c); see also KCM Fin., LLC, 457 S.W.3d at 79. We cannot “read between the

lines,” infer, or glean from the pleadings or the proof any grounds for granting the

summary judgment other than those grounds expressly set forth before the trial court in

the motion for summary judgment. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d

337, 343 (Tex. 1993); see Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998) (“Defendants’

motions for summary judgment argued only that plaintiffs failed to state a cognizable

claim, the trial court’s judgment can be upheld, if at all, only on that ground.”). Once a

defendant establishes its right to summary judgment as a matter of law, the burden shifts

to the plaintiff to present evidence raising a genuine issue of material fact, thereby

precluding summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). We take as true all evidence favorable to the nonmovants, and indulge


Newman, et al. v. Sivam, et al.                                                      Page 6
every reasonable inference in their favor. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 549 (Tex. 1985).

B.      Discussion

        As mentioned above, the Newmans sued Thangavel for fraud and conspiracy to

commit fraud on the basis that Thangavel represented that the premises was in a

functional condition for use as a daycare facility when Thangavel purportedly knew that

such a representation was false.

        The elements of a fraud claim are: (1) that a material misrepresentation was made;

(2) the representation was false; (3) when the representation was made, the speaker knew

it was false or made it recklessly without any knowledge of the truth and as a positive

assertion; (4) the speaker made the representation with the intent that the other party

should act upon it; (5) the party acted in reliance on the representation; and (6) the party

thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001) (citing

Formosa Plastics Corp. v. Presidio Engr’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998)).

        An actionable civil conspiracy is a combination of two or more persons to
        accomplish an unlawful purpose or to accomplish a lawful purpose by
        unlawful means. The essential elements of a civil conspiracy are (1) two or
        more persons; (2) an object to be accomplished; (3) a meeting of the minds
        on the object or course of action; (4) one or more unlawful, overt acts; and
        (5) damages as a proximate result.

In re Lipsky, 411 S.W.3d 530, 549 (Tex. App.—Fort Worth 2013, orig. proceeding) (internal

citations & quotations omitted). A defendant’s liability for conspiracy depends on



Newman, et al. v. Sivam, et al.                                                          Page 7
participating in some underlying tort for which the plaintiff seeks to hold at least one of

the named defendants liable. Id. (internal citations omitted).

        In the instant case, the Newmans’ conspiracy claims are premised on a finding of

fraud; therefore, the crux of this dispute is the fraud claim. See id. Thangavel filed a

traditional motion for summary judgment as to the Newmans’ claims for fraud and

conspiracy to commit fraud.       Specifically, Thangavel asserted that the summary-

judgment evidence negated a finding that a false, material misrepresentation was made.

Among the evidence attached to Thangavel’s motion for summary judgment was the

underlying lease, which provided that:       “Tenant [appellants] acknowledges that it

inspected the Premises, including the grounds and all buildings and improvements, and

that they are, at the time of the execution of this Lease, in good order, good repair, safe,

clean and tenantable condition.” The lease papers show that the Newmans signed their

initials at the bottom of the page where this language was found. Additionally, the

Newmans agreed to the lease terms in their totality by signing on the signature page of

the lease agreement. Furthermore, Thangavel attached a Certificate of Occupancy from

the City of Hewitt, which confirmed that the premises passed inspection. All of this

evidence undermines any argument made by the Newmans that the premises were not

in a suitable condition for occupation.

        The Newmans did not respond to Thangavel’s motion for summary judgment as

to the fraud and conspiracy-to-commit-fraud claims. “[A] party who fails to expressly


Newman, et al. v. Sivam, et al.                                                       Page 8
present to the trial court any written response in opposition to a motion for summary

judgment waives the right to raise any arguments or issues post-judgment.” Unifund

CCR Partners v. Weaver, 262 S.W.3d 796, 797 (Tex. 2008). However, because a motion for

summary judgment must stand on its own merit, even without filing a response, the

Newmans may still argue on appeal that Thangavel’s summary-judgment proof was

insufficient as a matter of law. See Grace v. Titanium Electrode Prods., Inc., 227 S.W.3d 293,

297 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (stating that a nonmovant may

complain about the insufficiency of the movant’s summary-judgment evidence on appeal

even if the nonmovant did not file a response to the motion); Rizkallah v. Conner, 952

S.W.2d 580, 582-83 (Tex. App.—Houston [1st Dist.] 1997, no writ) (same).

        Based on our review of the summary-judgment evidence, and based on the fact

that the Newmans did not file a response to Thangavel’s motion for summary judgment

raising an issue of material fact, we cannot say that the trial court erred in concluding that

Thangavel established as a matter of law that he did not make a false, material

misrepresentation regarding the condition of the premises that the Newmans reasonably

relied upon to their detriment. As such, we conclude that the trial court did not err in

granting summary judgment in favor of Thangavel as to the Newmans’s fraud and

conspiracy-to-commit-fraud claims otherwise known as the premises claims.                 We

overrule the Newmans’ first and second issues.




Newman, et al. v. Sivam, et al.                                                         Page 9
                                     IV.    CONCLUSION

         Having overruled both of the Newmans’ issues, we affirm the judgment of the trial

court.




                                                 JOHN E. NEILL
                                                 Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed January 8, 2020
[CV06]

*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not be
handed down.)




Newman, et al. v. Sivam, et al.                                                    Page 10
