                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-11-00010-CV


MARGARET L. REY                                                  APPELLANT

                                      V.

DAVID H. LEMING, PAIGE                                           APPELLEES
ANDERS LEWIECKI, AND THE
COLANERI FIRM, P.C.


                                   ----------

          FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

                                   ----------

                       MEMORANDUM OPINION1
                                   ----------

                               I. INTRODUCTION

      This is a summary judgment appeal. The trial court granted two summary

judgments, one for Appellee David H. Leming on all claims asserted against him

by Appellant Margaret L. Rey and one for Appellees Paige Anders Lewiecki and



      1
      See Tex. R. App. P. 47.4.
the Colaneri Firm, P.C on all claims asserted against them by Rey. For the

reasons set forth below, we will affirm the trial court’s summary judgments.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

                             A. Rey’s Prior Lawsuit

      Rey filed a personal injury suit against Leming as a result of a car accident

between Rey and Leming. The case proceeded to a jury trial. Leming was

represented by attorney Lewiecki, who was employed by the Colaneri Firm. In

response to the damages question in the trial court’s charge, the jury found that

$2,000 would compensate Rey for medical expenses that she incurred in the

past as a result of the occurrence in question. The jury found no other damages.

On April 18, 2006, Rey filed a motion for judgment notwithstanding the verdict,

alleging that she was entitled to judgment in the amount of $34,265, plus

prejudgment interest and costs. The trial court signed a September 1, 2006

judgment awarding Rey $2,000 in damages for medical care that she had

sustained in the past.    The judgment did not contain an award of costs or

prejudgment interest.

      On September 20, 2006, Rey filed a motion for new trial, again alleging

that she was entitled to $34,265 in damages and requesting the trial court to

―GRANT this Motion For New Trial and return this case to the trial docket so that

the Court can then rule on Plaintiff’s Motion for Judgment N.O.V.‖ Rey attached

a copy of the trial court’s judgment to her motion for new trial but did not assert

any objections to the trial court’s judgment. Nor did Rey file a motion to modify


                                        2
the trial court’s judgment. Rey’s motion for new trial was overruled by operation

of law, and the trial court’s plenary power over its judgment subsequently

expired.

                           B. Rey’s Current Lawsuit

      Rey then filed the present suit against Leming, against Leming’s lawyer in

the prior suit––Lewiecki, and against the Colaneri Firm––as Lewiecki’s employer.

Rey alleged that, in the prior suit, Lewiecki and the Colaneri Firm had submitted

a judgment to the trial court that did not award Rey costs or prejudgment interest

and had fraudulently induced the trial court to sign it by including a false

certificate of conference with the proposed judgment.          The certificate of

conference submitted by Lewiecki and the Colaneri Firm stated that a conference

was not held with Rey’s counsel Frank Hernandez concerning the judgment

because, although Lewiecki had attempted to contact Hernandez numerous

times concerning an agreed judgment, Hernandez had failed to provide a

proposed judgment, had failed to respond to correspondence Lewiecki had sent

to him, and had failed to call her to discuss the proposed judgment after she had

sent it to him. Rey’s petition in the current lawsuit alleges that ―Lewiecki has

committed a deliberate fraud on the Court in that she swore in a Certificate of

Conference to the Court on or about April 18, 2006, that Plaintiff’s attorney had

failed and/or refused to agree to the form and content of a proposed Judgment.‖

Rey pleaded no causes of action other than the alleged fraud by Lewiecki and

the Colaneri Firm.


                                        3
      Lewiecki and the Colaneri Firm filed a traditional motion for summary

judgment. Leming filed a no-evidence motion for summary judgment. After a

hearing, the trial court granted Lewiecki and the Colaneri Firm’s motion for

summary judgment without stating the grounds on which it was granted. The trial

court later granted Leming’s motion for summary judgment and entered a final

judgment in the case. Rey perfected this appeal raising two issues, claiming that

the trial court abused its discretion by granting the summary judgments.

                            III. STANDARD OF REVIEW

                      A. Traditional Summary Judgment

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P.

166a(b), (c).




                                        4
      When a trial court’s order granting summary judgment does not specify the

ground or grounds relied on for its ruling, summary judgment will be affirmed on

appeal if any of the theories presented to the trial court and preserved for

appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128

S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473

(Tex. 1995).

                     B. No-Evidence Summary Judgment

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant’s

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of

material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

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

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168


                                        5
S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).               If the

nonmovant brings forward more than a scintilla of probative evidence that raises

a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030

(2004).

               IV. APPLICATION OF THE LAW TO THE PRESENT FACTS

          A. Summary Judgment for Lewiecki and the Colaneri Firm

      As set forth above, Rey pleaded that, ―Lewiecki has committed a deliberate

fraud on the Court in that she swore in a Certificate of Conference to the Court

on or about April 18, 2006, that Plaintiff’s attorney had failed and/or refused to

agree to the form and content of a proposed Judgment.‖ Also as set forth above,

the certificate of conference submitted by Lewiecki and the Colaneri Firm stated

that a conference was not held with Rey’s counsel Frank Hernandez concerning

the judgment because, although Lewiecki had attempted to contact Hernandez

numerous times concerning an agreed judgment, Hernandez had failed to

provide a proposed judgment, had failed to respond to correspondence Lewiecki

had sent to him, and had failed to call her to discuss the proposed judgment after

she had sent it to him.


                                        6
      Lewiecki and the Colaneri Firm moved for a traditional summary judgment

on several grounds, including the grounds that they had conclusively negated the

first element of actionable fraud––the failure to disclose a material fact––and that

they had conclusively negated the first element of fraud––a material

misrepresentation.    Lewiecki and the Colaneri Firm attached the following

summary judgment evidence to their motion:

      Exhibit B: Affidavit of Janet Colaneri and a March 21, 2006 letter
      from Janet Colaneri to Rey’s counsel, Hernandez, ―Re: I am
      inquiring as to the status of the Judgment.‖

      Exhibit C: Affidavit of Paige Lewiecki and an April 11, 2006 letter
      from Paige Lewiecki to Rey’s counsel, Hernandez, ―Re: Forwarding
      proposed judgment.‖

      Exhibit G: Affidavit of Paige Lewiecki and a September 1, 2006
      letter to the trial court, ―Re: Forwarding proposed judgment.‖

      Exhibit J: Affidavit of Paige Lewiecki and a September 5, 2006 letter
      from Paige Lewiecki to Rey’s counsel, Hernandez, ―Re: Forwarding
      signed judgment.‖

      Rey’s controverting summary judgment evidence consisted of Hernandez’s

affidavit, swearing that he did not have a phone conversation with Paige

Lewiecki,   and   Lewiecki’s   deposition,   setting   out   the   details   of   her

correspondence with Hernandez, Hernandez’s failure to draft a proposed

judgment, and Hernandez’s failure to respond with corrections or suggestions to

her proposed judgment.

      To constitute fraud, a statement must be false. Wal-Mart Stores, Inc. v.

Sturges, 52 S.W.3d 711, 727 (Tex. 2001). Viewing all of the summary judgment



                                         7
evidence in the light most favorable to Rey as the nonmovant, the summary

judgment evidence conclusively establishes that Lewiecki did not make any false

statement in the certificate of conference she included with the proposed

judgment. Because the summary judgment evidence conclusively negates the

first element of Rey’s fraud claim––the failure to disclose a material fact or the

making of a material misrepresentation, the trial court did not err by granting

summary judgment for Lewiecki and the Colaneri Firm.             See Randall’s Food

Markets, Inc. v. Johnson, 943 S.W.2d 640, 644 (Tex. 1995) (holding defendant’s

summary judgment evidence conclusively negated extreme-and-outrageous-

conduct element of plaintiff’s intentional infliction of emotional distress claim).

      Because we affirm the trial court’s summary judgment for Lewiecki and the

Colaneri Firm on this ground, we need not address Rey’s challenges to any other

grounds for summary judgment raised in Lewiecki and the Colaneri Firm’s motion

for summary judgment.       Knott, 128 S.W.3d at 216, 222. We overrule Rey’s

issues complaining that the trial court abused its discretion by granting summary

judgment for Lewiecki and the Colaneri Firm.

                       B. Summary Judgment for Leming

      On appeal, Rey does not raise or brief any complaints concerning the

summary judgment granted for Leming. Accordingly, any error in this ruling by

the trial court has been waived through inadequate briefing. See Tex. R. App. P.

38.1(h), (i); Town of Flower Mound v. Teague, 111 S.W.3d 742, 766 (Tex. App.—

Fort Worth 2003, pet. denied). We affirm the trial court’s no-evidence summary


                                           8
judgment granted for Leming.

                                   V. CONCLUSION

      Having addressed both of Rey’s issues claiming that the trial court abused

its discretion by granting summary judgment for Lewiecki and the Colaneri Firm,

and having determined that Rey waived through inadequate briefing any

complaint concerning the summary judgment granted for Leming, we affirm the

trial court’s summary judgments.


                                                   SUE WALKER
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and WALKER, JJ.

DELIVERED: October 27, 2011




                                        9
