                            NUMBER 13-08-00336-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ELIA CORNEJO LOPEZ AND LEONEL LOPEZ,                                      Appellants,

                                           v.

NORMA LINDA CASTELLANO,                                                    Appellee.


                   On appeal from the 138th District Court
                        of Cameron County, Texas.


                         MEMORANDUM OPINION

    Before Chief Justice Valdez and Justices Rodriguez and Garza
            Memorandum Opinion by Justice Rodriguez

      Appellants Elia Cornejo Lopez and Leonel Lopez appeal a summary judgment

granted in favor of appellee Norma Linda Castellano on the Lopezes' conversion and

common-law fraud claims. By six issues, the Lopezes contend that the trial court erred in
granting summary judgment because material fact issues remain. We affirm in part and

reverse and remand in part.

                            I. FACTUAL AND PROCEDURAL BACKGROUND 1

        South Texas ACP Management, LLC (South Texas ACP) was created in 2006 as

a limited liability company. Cesar Roel Perez is the sole manager of South Texas ACP,

and Castellano, Perez's mother-in-law, is a member—allegedly its sole member.

        The Lopezes assert in their petition that, in May 2007, they were beginning

negotiations with Perez and South Texas ACP to buy an interest in South Texas ACP.

According to the petition, they discussed the expansion of the Playground Fun Center a/k/a

Playground Action Park in Brownsville, Texas, which was to include the building of a

skating rink facility adjacent to the existing facility. As set out in their petition, as a sign of

good faith, Elia Lopez deposited $100,000 into a Wells Fargo Bank account; the funds

were to be held in escrow until the Lopezes completed a due diligence investigation of the

business.

        After the Lopezes discovered that Perez allegedly made misrepresentations

regarding the financial condition of South Texas ACP, the ownership of South Texas ACP's

assets, and the existence of liens against South Texas ACP's assets, they demanded the

return of their money. According to allegations in the petition, Perez and South Texas ACP

failed to return the money and failed to provide an accounting.2 On August 9, 2007, the



        1
         Castellano filed no appellee's brief to assist us in the resolution of this case. Accordingly, we decide
this appeal based on the brief filed by the Lopezes and the record before us.

        2
          Although it is not clear from the record, it appears as if $50,000 of the $100,000 was placed in the
registry of the trial court. The Lopezes have requested that the trial court release that m oney to them . The
location or use of the rem aining $50,000 is disputed.

                                                       2
Lopezes sued South Texas ACP, Perez, and Castellano for common-law fraud and

conversion. On December 10, 2007, the Lopezes filed a second amended petition which

added factual allegations regarding the fraud and conversion claims.

        On December 14, 2007, Castellano filed a hybrid no-evidence and traditional motion

for summary judgment.3 The Lopezes responded, filing their response on February 5,

2008, and their supplemental response on February 11, 2008.4 Both responses were filed

timely—more than seven days before the summary judgment hearing. See TEX . R. CIV.

P. 166a(c) ("Except on leave of court, the adverse party, not later than seven days prior to

the day of hearing may file and serve opposing affidavits or other written response.");

Haynes v. City of Beaumont, 35 S.W.3d 166, 172-73 (Tex. App.–Texarkana 2000, no pet.).

        On February 11, 2008, the Lopezes also filed a third amended petition. In this

petition, they added allegations of statutory fraud in a real estate transaction, see TEX . BUS.

& COM . CODE ANN . § 27.01 (Vernon 2009), negligence, and gross negligence.5

        On February 13, 2008, Castellano filed objections to the Lopezes' summary

judgment evidence, and in the alternative, a reply to the Lopezes' response and

supplemental response. Relevant to this appeal, Castellano specifically objected to Elia


        3
          As evidence, Castellano attached her affidavit and the affidavit of Perez to her m otion. She also
attached excerpts of the Lopezes' deposition testim ony and docum ents regarding South Texas ACP's
form ation, filing, and regulations.

        4
          The Lopezes attached the following evidence to their response: (1) Elia Lopez's affidavit; (2) a 2006
Deed of Trust, Security Agreem ent, and Financing Statem ent (Deed of Trust); (3) one of South Texas ACP's
interrogatory responses; (4) a copy of a check in the am ount of $100,000 m ade payable to Cesar Perez; (5)
a docum ent titled "Roller Boogie"; and (6) a W ells Fargo Bank account transaction receipt and inquiry
inform ation on what appears to be the sam e account. No evidence was attached to the Lopezes'
supplem ental response.

        5
          The Lopezes claim to have added civil conspiracy as a new cause of action in their third am ended
petition. However, only the title, "Civil Conspiracy," appears in this petition. It offers nothing m ore to advance
this claim .

                                                        3
Lopez's affidavit, arguing that it contained hearsay.6 See TEX . R. EVID . 801. The Lopezes

did not assert the application of any hearsay exception. See id. at R. 803. Nor did the

Lopezes raise any objections to Castellano's evidence. In her reply, Castellano also

objected to the filing of the Lopezes' third amended petition as untimely. No written rulings

on Castellano's objections appear in the record.

        The hearing on Castellano's motion, originally set for February 5, 2008, was

rescheduled for February 11, 2008, and then again for February 20, 2008. At the February

20 hearing, counsel presented argument. Counsel for Castellano again objected to Elia

Lopez's affidavit—specifically, to Lopez's statement that Perez told her that Castellano was

in possession of the $100,000. At the end of the hearing, without expressly ruling on

Castellano's objection, the trial court granted Castellano's motion for summary judgment.

        On February 26, 2008, Castellano filed a motion to sever the claims against her

from the claims alleged against Perez and South Texas ACP. The Lopezes filed a fourth

amended petition on April 1, 2008, arguing that all causes of action were not addressed

in the summary judgment motion. In this fourth amended petition, filed after the summary

judgment hearing, the Lopezes added two new causes of action identified as civil

conspiracy and malicious prosecution/intentional infliction of emotional distress. On that

same day, the Lopezes responded to Castellano's motion to sever, again asserting that not

all causes of action against her were addressed in the summary judgment motion.




        6
         In addition to the hearsay objection, Castellano objected to Elia Lopez's affidavit arguing that it
contained legal conclusions and unsupported factual conclusions. She also objected to the Deed of Trust
as unauthenticated and incom plete and to South Texas ACP's interrogatory response on the basis that the
Lopezes represented that it was Castellano's response. Castellano filed no objections to the copy of the
check, the "Roller Boogie" docum ent, or the W ells Fargo Bank receipt and inquiry inform ation.

                                                     4
        On April 18, 2008, the trial court signed its judgment granting Castellano's motion

for summary judgment and ordering that the Lopezes take nothing by their suit against

Castellano. The judgment stated that the trial court: heard Castellano's no-evidence and

traditional motion for summary judgment that was based on the second amended petition

on file at the time the motion was filed; reviewed each motion, the timely-filed responses,

and supporting summary judgment evidence; and concluded that there were sufficient

grounds to find that no material issue of fact precluded the granting of the motion. It set

out that the "judgment covers all of the relief" claimed by the Lopezes and that the

judgment would "become a final judgment as to . . . Castellano upon the severance." After

summary judgment was entered in favor of Castellano, the trial court severed the Lopezes'

claims against Castellano from their claims against Perez and South Texas ACP; thus,

Perez and South Texas ACP are not parties to this appeal.

                                   II. FINALITY OF THE JUDGMENT

        We first address the issue of the finality of the trial court's judgment.7 A judgment

must be final before it can be appealed. See Lehmann v. Har-Con Corp., 39 S.W.3d 191,

192 (Tex. 2001). A judgment issued without a conventional trial—for example, a judgment

rendered on a pre-trial motion for summary judgment—"is final for purposes of appeal if

and only if either it actually disposes of all claims and parties then before the court,

regardless of its language, or it states with unmistakable clarity that it is a final judgment

as to all claims and all parties." Id. at 192-93; see also Lopez v. Sulak, 76 S.W.3d 597,

603 (Tex. App.–Corpus Christi 2002, no pet.).                   Otherwise, the judgment is only


        7
         This discussion of finality applies to the Lopezes' second, fifth, and sixth issues, which address
claim s added subsequent to the filing of the second am ended petition.

                                                    5
interlocutory. Lehmann, 39 S.W.3d at 192. Moreover, granting more relief than the

movant is entitled to makes the order reversible, but not interlocutory. Id.

         Here, in their second amended petition, the Lopezes alleged causes of action for

conversion and common-law fraud. Castellano filed her motion for summary judgment

after the Lopezes filed this second amended petition. The Lopezes then filed a third

amended petition raising new allegations of statutory fraud in a real estate transaction,

negligence, and gross negligence. The third amended petition was timely filed on February

11, 2008, nine days before the summary judgment hearing held on February 20, 2008.

See TEX . R. CIV. P. 63 (providing that amended pleadings may be filed within seven days

of trial or thereafter only with leave of court); Goswami v. Metro. Sav. & Loan Ass'n, 751

S.W.2d 487, 490 (Tex. 1988) (setting out that a summary judgment proceeding is a trial

within the meaning of rule 63). Even though the hearing was set and reset multiple times,

the third amended petition was timely filed because the key date for purposes of rule 63

is the date of the final hearing from which the summary judgment "sprang." Cantu v.

Holiday Inns, 910 S.W.2d 113, 115 (Tex. App.–Corpus Christi 1995, writ denied).

Therefore, in this case the following claims were before the trial court at the time of the

summary judgment hearing: (1) common-law fraud; (2) conversion; (3) statutory fraud in

a real estate transaction; (4) negligence; and (5) gross negligence.8 The trial court granted

Castellano's motion, declaring its decision to be a final judgment and ordering that the

Lopezes take nothing by their claims.

         8
          The Lopezes pleaded civil conspiracy and m alicious prosecution/intentional infliction of em otional
distress for the first tim e in their fourth am ended petition. That petition was filed after the m otion for sum m ary
judgm ent was heard and without leave of court; therefore, it was not the live pleading when the sum m ary
judgm ent was signed. See T EX . R. C IV . P. 63 (providing that am ended pleadings m ay be filed within seven
days of trial or thereafter only with leave of court) (em phasis added).

                                                          6
       Reviewing the live pleadings in the context of Castellano's asserted grounds for

seeking summary judgment, it is clear that the trial court's summary judgment addresses

all of the Lopezes' claims as of the date Castellano's motion was filed but does not address

claims added after the summary judgment motion was filed. See Lehmann, 39 S.W.3d at

205 (setting out that to determine whether an order actually disposes of all pending claims,

an appellate court may look to the record in the case); Rose v. First Am. Title Ins. Co., 907

S.W.2d 639, 641 (Tex. App.–Corpus Christi 1995, no writ) (reviewing summary judgment

in context of pleadings and summary-judgment evidence). Yet, the order states

unequivocally that final judgment, upon severance, is rendered that the Lopezes take

nothing by their suit against Castellano. See Lehmann, 39 S.W.3d at 204. Such an order

grants more relief than Castellano is entitled to receive from her motion because her

motion did not address the Lopezes' statutory fraud, negligence, and gross negligence

claims, which were first alleged after Castellano's motion for summary judgment was filed.

Therefore, it is reversible, but not interlocutory. See id. We conclude that it was error for

the trial court to grant a final judgment based, in part, on claims not properly before it at the

summary judgment hearing. See id. We sustain the Lopezes' second, fifth, and sixth

issues on this basis only.

   III. NO -EVIDENCE SUMMARY JUDGMENT STANDARD OF REVIEW AND APPLICABLE LAW

       The standard of review for the granting of a motion for summary judgment is

determined by whether the motion was brought on no-evidence or traditional grounds. See

TEX . R. CIV. P. 166a(c), (i); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex.

App.–Corpus Christi 2003, no pet.) (op. on reh'g). Castellano filed a combined traditional



                                               7
and no-evidence motion for summary judgment. When a party moves for summary

judgment under both rules 166a(c) and 166a(i), "[w]e first review the trial court's summary

judgment under the standards of [r]ule 166a(i)." See Ford Motor Co. v. Ridgway, 135

S.W.3d 598, 600 (Tex. 2004).

      Under rule 166a(i), the movant must allege that there is no evidence of a material

element of the adverse party's claims. TEX . R. CIV. P. 166a(i); see Sw. Elec. Power Co.

v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). While not required to marshal all her proof, the

non-movant must produce more than a scintilla of summary judgment evidence to raise a

genuine issue of material fact. See Ridgway, 135 S.W.3d at 600 (Tex. 2004); Grant, 73

S.W.3d at 215. If the non-movant fails to produce more than a scintilla of evidence under

rule 166a(i), there is no need to analyze whether the movant's summary judgment proof

satisfies the less stringent rule 166a(c) burden. Ridgway, 135 S.W.3d at 600. If, however,

the non-movant brings forward more than a scintilla of probative evidence, then a

no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981 S.W.2d 266,

269 (Tex. App.–San Antonio 1998, pet. denied).

      We review a no-evidence summary judgment for evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005)). We "examine the entire record in the light most favorable to the non[-]movant,

indulging every reasonable inference and resolving any doubts against the motion." Sudan

v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam) (quoting City of Keller, 168

S.W.3d at 823).



                                            8
         The elements of conversion are: (1) the plaintiff owned, had legal
         possession of, or was entitled to possession of the property; (2) the
         defendant assumed and exercised dominion and control over the property
         in an unlawful and unauthorized manner, to the exclusion of and inconsistent
         with the plaintiff's rights; and (3) the defendant refused the plaintiff's demand
         for the return of the property.

Tex. Dep't of Transp. v. Crockett, 257 S.W.3d 412, 416 (Tex. App.–Corpus Christi 2008,

pet. denied). To establish a claim for fraud, a plaintiff must establish that: (1) the

defendant made a material representation knowing the representation was false, or

recklessly as a positive assertion without any knowledge of its truth, with the intention to

induce the plaintiff to act upon it; (2) the plaintiff actually and justifiably relied upon the

representation; and (3) the plaintiff suffered injury. Ernst & Young, L.L.P. v. Pac. Mut. Life

Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001); Bradford v. Vento, 48 S.W.3d 749, 754-55 (Tex.

2001).

                                              IV. DISCUSSION

                                         A. Conversion Claim

         By their first and fourth issues, the Lopezes generally contend that the trial court

erred in granting summary judgment on their conversion claim because material fact

questions exist and because there is controverting evidence.9 Regarding the control

element of the conversion claim—Castellano's possession of the money—the Lopezes

contend in their first issue that because Elia Lopez's affidavit controverts the affidavits of

Castellano and Perez, Elia Lopez's affidavit should be taken as true and should prevail,


         9
         Although the first issue is written in general term s suggesting that it is applicable to all causes of
action, we construe it only as a challenge to the trial court's granting sum m ary judgm ent on the Lopezes'
conversion claim . W e do so because the com plained-of evidence arguably supports only the possession or
control elem ent of conversion. See Tex. Dep't of Transp. v. Crockett, 257 S.W .3d 412, 416 (Tex.
App.–Corpus Christi 2008, pet. denied).

                                                       9
and therefore, summary judgment is improper. The Lopezes' appellate argument, in

relevant part, follows:

       Castellano denies receiving [Elia] Lopez's money. Perez denied having told
       [Elia] Lopez that Perez gave the money to Castellano and that Castellano is
       in possession of the money. [Elia] Lopez's affidavit states that Perez told her
       he gave the money to Castellano. The law favors the non-Movant and takes
       as true the affidavit of the non-Movant. Thus, [Elia] Lopez's affidavit which
       controverts the affidavits of Castellano and Perez is taken as true and should
       prevail.

We disagree for the following reasons. First, the Lopezes do not support this contention

with clear and concise arguments and with appropriate citations to authorities and to the

record. See TEX . R. APP. P. 38.1(i). Second, as discussed below, the trial court implicitly

granted Castellano's hearsay objection to Elia Lopez's affidavit; thus, the allegedly

controverting statement was not properly before the trial court as summary judgment

evidence.

       Both Castellano and Perez stated in their respective affidavits filed in support of

Castellano's motion for summary judgment that Perez did not give the Lopezes' money to

Castellano. Perez also avowed that, "[a]t no time did [he] represent to Mrs. Elia Cornejo

Lopez that [he] had given Ms. Castellano the entire $100,000 dollars [sic] or any portion

of the money [the Lopezes] gave [him]." Elia Lopez controverted this evidence with the

following statement in her own affidavit filed in support of her response to Castellano's

motion: "Perez . . . told me that Norma Castellano [was] in possession of my One Hundred

Thousand Dollars ($100,000.00)."

       Castellano filed a written objection and also objected at the summary judgment

hearing that Elia Lopez's statement was hearsay. See TEX . R. EVID . 801. The Lopezes did

not assert any exception to the hearsay rule. See id. at R. 803. Throughout the hearing,

                                             10
counsel for the Lopezes argued that the statement was evidence that Castellano

possessed the money at issue, thus establishing the second element of conversion or, at

least, creating a fact issue on that element. At the hearing, the following exchange

occurred:

      The Court:                  -- but there is no disagreement that there was
                                  $100,000 –

      [Castellano's Counsel]:     Right.

      The Court:                  -- given by check, by the Lopezes, to Perez.

      [Castellano's Counsel]:     To Perez, and not to Castellano.

      The Court:                  Cesar -- right.

      [Castellano's Counsel]:     There is evidence that it was ever [sic] given, or
                                  touched to [sic] Ms. Castellano.

      [The Lopezes' Counsel]:     But there is evidence –

      The Court:                  No. Hold on, hold on. If I remember correctly,
                                  Mr. Lopez says: "I don't know who Castellano
                                  is.["] That excerpt that I got. And I think even –
                                  Elia Cornejo Lopez also said, that she had never
                                  met her.

      [Castellano's Counsel]:     That's correct.

      [The Lopezes' Counsel]:     But [Elia Lopez] also said that Cesar Perez told
                                  her, that [Castellano] got the money.

      The Court:                  Well, that's where the hearsay comes in.

      Therefore, while there was no written ruling on Castellano's hearsay objection, we

conclude that the trial court implicitly sustained her proper objection to the challenged




                                           11
statement in Elia Lopez's affidavit.10 Having sustained the objection, the trial court did not

consider Elia Lopez's statement as summary judgment evidence when he granted

summary judgment in favor of Castellano.11

         In their fourth issue, the Lopezes contend that they also proved that fact issues

remain regarding the possession or control element of their conversion claim because the

money "was placed in a checking account opened, authorized, and controlled by

Castellano; Castellano is a signatory on the account." The Lopezes provide no record

citation to support these alleged facts, see TEX . R. APP. P. 38.1(i), and we find no support

for this contention from our review of the summary judgment evidence. The Lopezes also

suggest, without supporting authority, see id., that Castellano possessed the money

because, as the alleged sole member of South Texas ACP, she received a direct or

indirect benefit of the monies when a mortgage payment was or payments were made. We

are not persuaded by this argument, and we again find no evidence in the record to

support this contention.12


         10
           W e also conclude that the relevant portion of Elia Lopez's affidavit is inadm issible hearsay;
therefore, the trial court did not err in granting Castellano's no-evidence m otion for sum m ary judgm ent on the
conversion claim because the Lopezes raised no genuine issue of m aterial fact as to the possession elem ent.
See T EX . R. C IV . P. 166a(i); T EX . R. E VID . 803.

         11
            For the first tim e on appeal, the Lopezes object to the form of Castellano's affidavit and Perez's
affidavit on the basis that they are self-serving and argue that the affidavits should not be considered by the
trial court as sum m ary judgm ent evidence for that reason. See Tri-Steel Structures, Inc. v. Baptist Found. of
Tex., 166 S.W .3d 443, 448 (Tex. App.–Fort W orth 2005, pet. denied) (providing that an objection that an
affidavit constitutes controverted self-serving testim ony is an objection to form ); see also T EX . R. A PP . P.
33.1(a)(1) ("As a prerequisite to presenting a com plaint for appellate review, the record m ust show that . . .
the com plaint was m ade to the trial court by a tim ely request, objection, or m otion . . . ."); T EX . R. C IV . P.
166a(f) ("Defects in the form of affidavits or attachm ents will not be grounds for reversal unless specifically
pointed out by objection by an opposing party with opportunity, but refusal, to am end."). The Lopezes have
not preserved this argum ent for review. See T EX . R. A PP . P. 33.1(a)(1). Moreover, had it been preserved, we
would not reach the Lopezes' contention because it is not dispositive of this appeal. See id. at R. 47.1.

        12
           In support of their argum ents, the Lopezes reference excerpts from Perez and Castellano's
deposition testim ony, which they attach to their appellate brief as Exhibit 3 and Exhibit 8, respectively.
However, we find none of the referenced testim ony in the record. Although their response and Elia Lopez's

                                                         12
        Therefore, after examining the entire record in the light most favorable to the

Lopezes, indulging every reasonable inference and resolving any doubts against the

motion, see Sudan, 199 S.W.3d at 292, and reviewing the summary judgment record for

evidence that would enable reasonable and fair-minded jurors to differ in their conclusions,

see Hamilton, 249 S.W.3d at 426, we conclude, as to Castellano's no-evidence motion for

summary judgment, that the Lopezes have failed to produce more than a scintilla of

evidence raising a genuine issue of material fact regarding the possession or control

element of conversion. See Ridgway, 135 S.W.3d at 600. Thus, we conclude that the trial

court did not err in granting Castellano no-evidence summary judgment on the Lopezes'

conversion claim.13 We overrule the first and fourth issues.

                                              B. Fraud Claim

        In their third issue, the Lopezes contend that the trial court erred in granting

summary judgment because material fact issues exist concerning Castellano's involvement

in their fraud allegations. The Lopezes assert that Castellano's act of signing a 2006 Deed

of Trust, Security Agreement, and Financing Statement (Deed of Trust) is the

misrepresentation upon which their common-law fraud claim is based.



affidavit refer to an "exhibit 6—Cesar Perez's deposition testim ony," that exhibit does not appear in the record.
Likewise, in their supplem ental response, the Lopezes refer to Castellano's deposition testim ony, yet no
transcript of the referenced testim ony is in the record. Therefore, there is no evidentiary support for this
argum ent. See, e.g., Gonzalez v. Villarreal, 251 S.W .3d 763, 777 n. 17 (Tex. App.–Corpus Christi 2008, pet.
dism 'd w.o.j.) ("An appellate court cannot consider docum ents cited in a brief and attached as appendices if
they are not form ally included in the record on appeal.") (citing Burke v. Ins. Auto Auctions, 169 S.W .3d 771,
775 (Tex. App.–Dallas 2005, pet. denied)); Beacon Mgmt. & Gen. Contr., Inc. v. Boyer, Inc., 178 S.W .3d 198,
210 (Tex. App.–Houston [14th Dist.] 2005, no pet.) (sam e).

        13
          Having concluded that the Lopezes did not m eet their burden on Castellano's no-evidence m otion,
there is no need to analyze whether Castellano's sum m ary judgm ent proof satisfies the less stringent rule
166a(c) burden on the Lopezes' conversion claim . See Ford Motor Co. v. Ridgway, 135 S.W .3d 598, 600
(Tex. 2004); see also T EX . R. A PP . P. 47.1.

                                                       13
       The Deed of Trust was filed with the Cameron County Clerk's office on or about July

21, 2006. Castellano signed it as a grantor/borrower in her personal and individual

capacity. The Deed of Trust was also signed by Perez as a grantor/borrower in his

personal and individual capacity and in his capacity as manager and member of South

Texas ACP. The Lopezes argue that Castellano made a false representation to the

Lopezes and others similarly situated when, by signing the Deed of Trust, she represented

that Perez was a member of South Texas ACP when, in fact, he was not. The Lopezes

urge that, by signing this Deed of Trust, Castellano "represented to the world that . . . Perez

is also a member of South Texas ACP . . . and . . . Castellano has participated in fraud,

common[-]law fraud, and deception to the creditors to whom the Deed of Trust applies, and

to the [Lopezes]."

       The Lopezes provide no supporting authority for this argument, and we find none.

The Deed of Trust does not list the Lopezes as beneficiaries or creditors; they are not

identified in any capacity as parties to this Deed of Trust. Moreover, even assuming

Castellano knew she was falsely representing Perez's status as a member of South Texas

ACP when she signed the document, we cannot conclude that this is evidence that her

actions were done with the intent to induce the Lopezes to invest in South Texas ACP.

See Ernst & Young, 51 S.W.3d at 577; Bradford, 48 S.W.3d at 754-55. In fact, it is

undisputed that almost one year later, the Lopezes had not yet met, spoken to, or

exchanged correspondence with Castellano. Moreover, our review of the record reveals

no other evidence establishing that Castellano made any material representation to the

Lopezes regarding the transaction that forms the basis of this lawsuit knowing the



                                              14
representation was false with the intention to induce the Lopezes to act upon it. See Ernst

& Young, 51 S.W.3d at 577.

        Therefore, after examining the entire record in the light most favorable to the

Lopezes, indulging every reasonable inference and resolving any doubts against the

motion, see Sudan, 199 S.W.3d at 292, and reviewing the summary judgment record for

evidence that would enable reasonable and fair-minded jurors to differ in their conclusions,

see Hamilton, 249 S.W.3d at 426, we conclude, as to Castellano's no-evidence motion for

summary judgment, that the Lopezes have failed to produce more than a scintilla of

evidence raising a genuine issue of material fact regarding their fraud claim. See Ridgway,

135 S.W.3d at 600. We conclude that the trial court did not err in granting Castellano

summary judgment on the Lopezes' common-law fraud claim.14 The Lopezes' third issue

is overruled.

                                             V. CONCLUSION

        Accordingly, we affirm the judgment as to the common-law fraud and conversion

claims and reverse and remand for further proceedings on the issue of Castellano's liability

under the claims added in the Lopezes' third amended petition.




                                                               NELDA V. RODRIGUEZ
                                                               Justice

Delivered and filed the 25th
day of February, 2010.


        14
           Again, having concluded that the Lopezes did not m eet their burden on Castellano's no-evidence
m otion, there is no need to analyze whether Castellano's sum m ary judgm ent proof satisfies the less stringent
rule 166a(c) burden on the Lopezes' fraud claim . Ridgway, 135 S.W .3d at 600; see T EX . R. A PP . P. 47.1.

                                                      15
