                            NUMBER 13-07-00008-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


XIOMARA GUZMAN,                                                             Appellant,

                                           v.

INTER NATIONAL BANK,                                                         Appellee.


               On appeal from the County Court at Law No. 2
                        of Hidalgo County, Texas.


                         MEMORANDUM OPINION

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

      Appellant, Xiomara Guzman, appeals from the granting of a summary judgment in

favor of appellee, Inter National Bank (“INB”). By one issue, appellant contends there are

fact issues precluding summary judgment. We affirm.

                                    I. BACKGROUND

      On January 30, 2003, appellant entered into a “contract agreement” with La Rosita
Homes, Inc. (“La Rosita”). The contract provided that La Rosita would build appellant a

home for the amount of $89,350. The lot on which the home was to be built was previously

purchased by appellant on February 1, 2002. At the time appellant entered into the

contract with La Rosita, she owed approximately $16,131.44 on the lot. According to

appellant, the $89,350 contract price included the pay-off on the remaining balance of the

lot. The contract, however, was silent as to whether the pay-off of the lot was included in

the contract price.

       With the assistance of Carlos Perez (“Perez”), salesperson for La Rosita, appellant

sought an interim construction loan through INB. As a prerequisite for approval, however,

INB required appellant to obtain permanent financing through another financial institution.

Appellant complied and obtained a thirty-year fixed mortgage from Wells Fargo Home

Mortgage, Inc., in the amount of $90,690. INB, in turn, agreed to give appellant a six-

month interim loan in the amount of $77,250.

       Edwards Abstract & Title Ltd., (“Edwards Abstract”) at the request of INB, performed

the closing on March 21, 2003. Just prior to closing day, however, Mary Barrientos

(“Barrientos”), escrow officer and manager of Edwards Abstract, noticed the disparity

between the amount loaned by INB ($77,250), and La Rosita’s quoted contract price

($89,350). In communicating with INB, Barrientos learned that INB planned first to

advance the initial pay-off of appellant’s lot ($16,131.44), thus leaving $61,118.56 for

construction. Barrientos was then informed by La Rosita that it planned to place a lien on

appellant’s property, covering the difference between its quoted contract price ($89,350)

and the amount loaned by INB for construction ($61,118.56). Thus, at La Rosita’s urging,

Barrientos prepared a mechanics’ lien note in favor of La Rosita Construction in the

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amount of $28,231.44. Barrientos was never informed, however, that La Rosita’s quoted

contract price also included the pay-off of appellant’s lot. Appellant attended the closing

with Perez from La Rosita Construction, where she signed various documents, including

the $77,250 promissory note in favor of INB and the $28, 231.44 mechanics lien note in

favor of La Rosita Construction. INB’s promissory note was set to mature on September

18, 2003, approximately six-months after closing. By the date of maturity, however,

construction of appellant’s home was far from complete. Furthermore, Wells Fargo,

because of the liens placed on appellant’s property by INB and La Rosita ($77,250 +

$28,231.44 = $105,481.44) exceeded the amount that it was willing to lend ($90,690),

declined to provide appellant with any sort of permanent financing.

        Appellant failed to make any payments to either INB or La Rosita Construction, and

on February 3, 2004, INB foreclosed upon appellant’s lot and purchased the lot with

improvements at the foreclosure sale for $70,000.

        On September 14, 2004, appellant filed suit against INB, Edwards Abstract, and La

Rosita Construction, alleging common law fraud, negligence, gross negligence, and

violations of the Texas Deceptive Trade Practices Act.1 INB moved for summary judgment

on both traditional and no-evidence grounds. The trial court granted INB’s motion for

summary judgment but did not state the grounds for granting the motions. This appeal

ensued.

                                       II. Standard of Review

        1
           On October 18, 2006, appellant forwarded to the trial court a proposed order for ruling on INB’s
sum m ary judgm ent m otions. The proposed order included the following language: “that Plaintiff take nothing
by her claim against Inter National Bank for fraud or m isrepresentation.” On appeal, appellant does not
com plain of the entry of sum m ary judgm ent on her fraud cause of action. Thus, the only rem aining claim s
in dispute before this Court are for negligence, gross negligence, and alleged violations of the DTPA.

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       The standards for reviewing summary judgment are well established. See TEX . R.

CIV . P. 166a(c), 166a(i); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.

1985). When a defendant moves for summary judgment under rule 166a(i), asserting that

no evidence exists as to one or more elements of a plaintiff’s claim, the burden is on the

plaintiff to present evidence to raise a genuine issue of material fact on each of the

challenged elements on which the plaintiff has the burden of proof at trial. TEX . R. CIV. P.

166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.–Dallas

2000, no pet.).

       Under a traditional motion for summary judgment, the movant must establish that

no material fact issue exists and that it is entitled to judgment as a matter of law. TEX . R.

CIV. P. 166a(c); Sw. Elec. Power. Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). After the

movant produces evidence sufficient to show it is entitled to summary judgment, the

nonmovant must then present evidence raising a genuine issue of material fact. See

Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).

       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 advanced are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242

(Tex. 2001).

                                        III. Analysis

A. Negligence

       To sustain a cause of action for negligence, appellant had to show (1) the existence

of a duty, (2) breach of that duty, and (3) damages proximately caused by the breach of



                                              4
that duty. Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 663 (Tex. 1999); Koepke v.

Martinez, 84 S.W.3d 393, 396 (Tex. App.–Corpus Christi, 2002, pet. denied); Hanselka v.

Lummus Crest, Inc., 800 S.W.2d 665, 667 (Tex. App.–Corpus Christi, 1990, no writ).

       In determining whether the defendant was under a duty, the court will consider

several interrelated factors, including the risk, foreseeability, and likelihood of injury

weighed against the social utility of the actor’s conduct, the magnitude of the burden of

guarding against the injury, and the consequences of placing the burden on the defendant.

Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). Of all these

factors, foreseeability of the risk is “the foremost and dominant consideration.” Id. (quoting

El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987)).

       Whether a duty exists is a question of law for the court. Bird v. W.C.W., 868 S.W.2d

767, 769 (Tex. 1994). To maintain her negligence action against INB, appellant first had

to establish that INB owed some duty to her. Miller-Rogaska, Inc. v. Bank One, Texas,

N.A., 931 S.W.2d 655, 663 (Tex. App.–Dallas 1996, no writ).

       Appellant argues that given her lack of education, her inability to read or speak

English, the fact that she was not represented by legal counsel in her dealing with INB, and

because she had no prior experience in dealing with institutional lenders, “it clearly would

have been foreseeable to a lender in defendant’s position that plaintiff could be financially

harmed.” We read appellant’s argument to mean that INB had a legal duty to warn her

about or otherwise disclose the $28,000 mechanic’s lien note.

       Non-disclosure is neither fraudulent nor negligent unless there is a duty to disclose.

See Bradford v. Vento, 48 S.W.3d 749, 755 (Tex. 2001). Generally, a duty to disclose



                                              5
arises only in confidential or fiduciary relationships. Insurance Co. of North America v.

Morris, 981 S.W.2d 667, 674 (Tex. 1998); Fleming v. Tex. Coastal Bank of Pasadena, 67

S.W.3d 459, 461 (Tex. App.–Houston [14th Dist.] 2002, pet. denied). The relationship

between a bank and its customer is generally not a fiduciary one. See Bank One, Texas,

N.A. v. Stewart, 967 S.W.2d 419, 442 (Tex. App.–Houston [14th Dist.] 1998, pet. denied).

        In her deposition, appellant admitted to entrusting the whole loan process to Carlos

Perez, an employee of La Rosita Construction. She further admitted that Perez contacted

both Wells Fargo and INB on her behalf, and that Perez explained to her that INB was

providing interim financing for construction of her home. Because appellant had never

done business at the bank before, there is no evidence of a long-standing relationship of

trust that might create an exception.                See Fleming, 67 S.W.3d at 461.                  Moreover,

appellant’s complaints do not relate to her transaction with INB; it is undisputed that INB

advanced the initial pay-off of appellant’s lot, and also paid various draw requests issued

by La Rosita and signed by appellant. Based on these facts, we hold that INB was under

no duty to disclose the $28,000 mechanics lien note. See Morris, 981 S.W.2d at 674

(holding that company acting only as surety for investor’s notes had no duty to disclose

unfavorable facts it knew about investment company’s president). Appellant’s negligence

claim fails as a matter of law.2


          2
            Appellant also argues that because she does not read or speak English, INB had the duty to take
affirm ative steps to ensure adequate understanding. W e have never recognized such a duty. Indeed, we
have previously held that “the fact that [an] appellant m ay not be fluent in English did not of itself create such
a confidential relationship as to relieve them from their duty to read the contract docum ents.” Salinas v.
Beaudrie, 960 S.W .2d 314, 320 (Tex. App.–Corpus Christi 1997, no writ); see also De Villagomez v. First Nat’l
Bank-Edinburg, No. 13-04-367-CV, 2005 Tex. App. LEXIS 6175 at *8 (Tex. App.–Corpus Christi Aug. 4, 2005,
pet. denied) (m em . op., not designated for publication). Moreover, a person who signs a contract is presum ed
as a m atter of law to know its term s. D. W ilson Constr. Co. v. McAllen Indep. Sch. Dist., 848 S.W .2d 226, 230
(Tex. App.–Corpus Christi 1992, writ dism ’d w.o.j.); see also Thigpen v. Locke, 363 S.W .2d 247, 251 (Tex.

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B. Gross Negligence

        Appellant next asserts that the trial court erred in granting INB’s summary judgment

on her gross negligence claim. “Gross negligence involves two components:”

        (1) viewed objectively from the actor’s standpoint, the act or omission
        complained of must involve an extreme degree of risk, considering the
        probability and magnitude of the potential harm to others; and

        (2) the actor must have actual, subjective awareness of the risk involved, but
        nevertheless proceed in conscious indifference to the rights, safety, or
        welfare of others.


Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001); accord Transp. Ins.

Co. v. Moriel, 879 S.W.2d 10, 23 (Tex. 1994).

        In conclusory fashion, appellant argues the following constitutes evidence of gross

negligence: the fact that INB was aware of the $28,231.44 mechanic’s lien note, did

nothing to correct it, and then proceeded to foreclose on appellant’s property. First,

appellant fails to cite to any authority which holds that a lender must disclose or correct

third party transactions. Second, as noted above, a duty of disclosure arises only in

confidential or fiduciary relationships. See Morris, 981 S.W.2d at 674. As we have already

held that INB’s failure to disclose or correct the note was insufficient evidence to support

appellant’s negligence claim, we would be hard-pressed to recognize that the same factual




1962) (charging parties to an arm ’s-length transaction with a duty to read what they sign). This is true even
in the case of illiteracy or an inability to read English. See Vera v. N. Star Dodge Sales, Inc., 989 S.W .2d 13,
17 (Tex. App.–San Antonio 1998, no pet.); see also de Tamez v. Sw. Motor Transp. Inc., 155 S.W .3d 564,
570 (Tex. App–San Antonio 2004, no pet.) (“[E]ven though English was not his first language, we m ust
presum e, as a m atter of law, that [appellant] read and understood the contract, unless he was prevented from
doing so by trick or artifice.”). At her deposition, appellant adm itted that she failed to read, or request a
translation of, the docum ents she signed at closing. Thus, to the extent appellant argues that INB had the
legal duty to ensure adequate understanding, we disagree.



                                                       7
circumstance supports appellant’s gross negligence claim. Moreover, appellant makes no

attempt to explain how INB’s actions meets the objective element of gross negligence —

that the act or omission complained of involved an extreme degree of risk considering the

probability and magnitude of the potential harm to others. Quite simply, there is no

evidence that leads us to conclude that INB proceeded in a grossly negligent manner.

Thus, we conclude the evidence was insufficient to establish appellant’s gross negligence

claim.

C. DTPA

         Appellant next asserts that the trial court erred in granting INB’s summary judgment

on its DTPA claim. Appellant’s briefing on this issue is one paragraph long, contains not

a single citation to any legal authority, fails to cite the elements of a DTPA claim, or specify

which acts prohibited by the DTPA were allegedly committed by the bank. See TEX . R.

APP. P. 38.1(h). Even interpreting appellant’s brief liberally, we cannot conclude that she

has adequately briefed this issue. See Proctor v. White, 155 S.W.3d 438, 441 (Tex.

App.–El Paso 2004, pet. denied) (finding appellants waived challenge to summary

judgment on several claims because their argument consisted of several pages referring

to evidence in support of factual allegations without a single reference to relevant case or

legal principle). Appellant is required to attack every independent ground upon which the

trial court could have granted summary judgment as to this claim. See Ramco Oil & Gas

Ltd. v. Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 826 (Tex. App–Houston [14th Dist.]

2006, pet. denied). Because appellant has failed to do so, we conclude the trial court did

not err in granting summary judgment as to appellant’s DTPA claim.



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                                          IV. Conclusion

        We conclude that the trial court did not err in granting INB’s no evidence motion for

summary judgment.3         We overrule appellant’s lone issue on appeal and affirm the

judgment of the trial court.


                                                                _______________________
                                                                ROGELIO VALDEZ,
                                                                Chief Justice


Memorandum Opinion delivered and filed
this the 20th day of March, 2008.




        3
          Because of our disposition, we need not address whether INB’s traditional m otion for sum m ary
judgm ent was properly granted. See T EX . R. A PP . P. 47.1.

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