in the Matter of the Estate of Sweetie J. Boyle ( 2014 )

Opinion filed December 18, 2014
In The
Eleventh Court of Appeals
__________
No. 11-13-00151-CV
__________
IN THE MATTER OF THE ESTATE OF SWEETIE J. BOYLE,
DECEASED
On Appeal from the County Court at Law No. 2
Midland County, Texas
Trial Court Cause No. P11,674
MEMORANDUM OPINION
This is an appeal from the County Court at Law No. 2 of Midland County,
sitting in probate. A bank that was a predecessor in interest of Appellee,
JPMorgan Chase Bank, National Association (JPMorgan), filed the underlying
probate proceeding in 1996. The bank’s successor in interest filed a petition for
declaratory judgment in the probate proceeding in 1999. Appellant, Richard D.
Jones Jr. (Jones), appeals from an order entered approximately thirteen years later
in which the trial court granted a traditional summary judgment and a no-evidence
summary judgment in favor of JPMorgan. We affirm.
I. Background Facts
In 1981, Sweetie J. Boyle executed a will. The beneficiaries under the will
included Sweetie’s daughter, Mary Catherine Jones (Mary); Sweetie’s grandson,
Jones; and Sweetie’s great-granddaughter, Angela Leigh Simpson (Angela).
Angela has also been known as Angela Starrett and Angela Militello.
Sweetie’s mental condition began to deteriorate in the 1980s. She was
diagnosed with Alzheimer’s disease. In 1988, Sweetie was adjudicated
incompetent, and Mary was appointed to serve as the guardian of Sweetie’s person
and estate. In November 1988, Mary, in her capacity as guardian, filed an
application in the County Court of Midland County to make gifts on behalf of
Sweetie’s guardianship estate to Sweetie’s heirs. The court approved Mary’s
application for a gifting plan. Under the plan, Mary delivered to First City
National Bank (First City), JPMorgan’s predecessor in interest, the sum of
$600,000 to hold in trust. The trust was created, and the trust funds were
designated to three separate trusts: the “Mary Catherine Jones 1988 Trust,” the
“Richard Donald Jones, Jr. 1988 Trust,” and the “Angela Leigh Simpson 1988
Trust.” First City served as trustee of these trusts.
Mary died in 1992. In June 1992, First City was appointed as the successor
guardian of Sweetie’s estate, and William Pennebaker of the law firm of
Stubbeman, McRae, Sealy, Laughlin & Browder was appointed the successor
guardian of Sweetie’s person. In November 1992, Jones was appointed as the
successor guardian of Sweetie’s person.
In November 1994, Texas Commerce Bank N.A. (Texas Commerce), a
successor in interest to First City, filed an application to make additional gifts from
Sweetie’s guardianship estate to her heirs. The court approved the gifting plan.
The plan created, in part, the “Richard Donald Jones, Jr. 1994 Family Trust.” The
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corpus of this trust was divided into two equal shares that were called the 1998
Share and the 2010 Share.
Sweetie died on December 14, 1996. Texas Commerce filed Sweetie’s will
for probate in Cause No. P11,674. The court appointed Texas Commerce as the
independent executor of Sweetie’s estate. Under her will, Sweetie gifted her
residuary estate in equal shares to two trusts: (i) the Mary Catherine Jones Trust
and (ii) the Mary Catherine Jones Family Trust (the “Boyle Will Trust”). The
beneficiaries of the Boyle Will Trust were Jones, Angela, and their descendants.
On February 24, 1999, Chase Bank of Texas, N.A. (Chase)—a successor in
interest to Texas Commerce and a predecessor in interest to JPMorgan—filed a
petition for declaratory judgment in the underlying probate proceeding. Chase
sought declarations from the trial court (1) that all matters entrusted to Chase had
been handled and accounted for in accordance with the law, (2) that Chase had no
further duties or responsibilities to the beneficiaries or contingent beneficiaries of
Sweetie’s will resulting from Sweetie’s will and Chase’s administration of the
estate, and (3) that Chase had no liability to any of the beneficiaries or contingent
beneficiaries as a result of its administration of the estate. In support of its request
for declaratory relief, Chase filed a final accounting related to Sweetie’s estate as
an exhibit to its petition for declaratory judgment.
Also on February 24, 1999, Chase filed a petition in the 238th District Court
of Midland County, styled In the Matter of the Trusts Created for the Benefit of
Richard Donald Jones, Jr. and Angela Starrett, Cause No. CV42520. In the
petition, Chase sought an order discharging it from any further duties or liabilities
to the beneficiaries of the trusts with respect to Chase’s administration of the trusts.
On February 17, 2000, Jones and Angela filed a combined counterclaim and
original petition in the probate proceeding. They alleged claims against Chase in
the counterclaim. They alleged claims against Pennebaker and Pennebaker’s law
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firm (lawyer defendants) in the petition. Jones and Angela alleged that Chase and
the lawyer defendants had committed numerous acts of mismanagement,
misconduct, and breach of fiduciary duty in connection with the management of
Sweetie’s assets and estate, both before and after Sweetie’s death. Jones and
Angela also alleged numerous claims against Chase in connection with its
administration of the above-described trusts. On the same date, Jones and Angela
filed an identical counterclaim and original petition in the district court action.
Angela later nonsuited her claims in both cases.
In the probate cause, Chase filed a motion for summary judgment based
upon the grounds that the D’Oench, Duhme 1 doctrine barred Jones’s claims that
accrued before February 13, 1993, and that the statute of limitations barred Jones’s
claims that accrued before February 16, 1996. The lawyer defendants moved for
summary judgment based upon numerous affirmative defenses.
On May 23, 2001, the trial court entered an order granting partial summary
judgment in favor of Chase on the grounds that the D’Oench, Duhme doctrine
barred claims that accrued before February 13, 1993, and that limitations barred
claims that accrued before February 16, 1996. In the same order, the trial court
granted summary judgment to the lawyer defendants. The trial court severed
Jones’s claims against the lawyer defendants from the remainder of the suit so that
the summary judgment in favor of the lawyer defendants would become final.
Jones appealed the summary judgment order in favor of the lawyer
defendants to the El Paso Court of Appeals. See Jones v. Stubbeman, McRae,
Sealy, Laughlin & Browder, Inc., No. 08-01-00202-CV, 2002 WL 1301342 (Tex.
App.—El Paso June 13, 2002, no pet.) (not designated for publication). The El
Paso Court affirmed the summary judgment order in part, reversed it in part, and
remanded the case to the trial court for further proceedings on the reversed claims.
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See D’Oench, Duhme & Co. v. Fed. Deposit Ins. Corp., 315 U.S. 447 (1942).
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Id. at *8. In 2004, the trial court entered orders granting summary judgment to the
lawyer defendants on Jones’s remaining claims against them. Jones did not appeal
those orders.
In September 2008, JPMorgan, as a successor to Chase, filed a no-evidence
motion for summary judgment as to Jones’s remaining claims against it in the
probate proceeding. In November 2008, Jones filed a counterclaim and amended
petition against Chase. Jones’s 2008 counterclaim was essentially the same as his
2000 counterclaim. In response, JPMorgan filed a supplemental no-evidence
motion for summary judgment. Jones nonsuited his claims against JPMorgan in
the probate proceeding the day before a hearing was scheduled to take place on
JPMorgan’s no-evidence motion for summary judgment.
In July 2011, JPMorgan filed an amended motion to dismiss the district
court proceeding. It asserted that the district court lacked subject-matter
jurisdiction over Jones’s claims that related to probate court matters, such as claims
concerning Sweetie’s estate, and that the probate court had dominant jurisdiction
over Jones’s other claims that were pending in district court. Jones agreed to a
dismissal of the case in district court based on a lack of subject-matter jurisdiction.
On November 30, 2011, the district court entered an agreed order granting
JPMorgan’s amended motion to dismiss for lack of subject-matter jurisdiction.
On January 26, 2012, Jones filed another counterclaim and an amended
petition against Chase in the probate court proceeding. The allegations and claims
in Jones’s twenty-six page 2012 counterclaim were identical to the allegations and
claims in his 2008 counterclaim in the probate proceeding.
Jones alleged claims against Chase for breaches of common-law fiduciary
duties and for violations of various provisions of the Texas Probate Code and the
Texas Property Code. Jones also alleged that Chase breached its fiduciary duties
to him in multiple respects as follows: engaging in self-dealing; negligently
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mismanaging the trusts; mismanaging municipal or bearer bonds and failing to
account for the bonds; acting with conflicts of interest; mismanaging AT&T stock;
failing to lease land in Scurry County, Texas; failing to exercise reasonable care
and skill in handling the estates; failing to maintain control of estate assets; failing
to keep and render proper accounts; failing to preserve estate property; failing to
enforce claims; failing to segregate estate property; conspiring with the lawyer
defendants; breaching its fiduciary duties and duties of loyalty in the Ike Lovelady
transaction; and negligently failing to do estate tax planning. The most recent
conduct that Jones complained about allegedly occurred in 1998. Jones sought to
recover actual damages in the maximum amount of $25,000,000. He also sought
to recover punitive damages.
JPMorgan, as a successor to Chase, answered Jones’s counterclaim. On
October 19, 2012, JPMorgan filed a traditional motion for summary judgment
based on affirmative defenses and a separate no-evidence motion for summary
judgment on all of Jones’s claims. These motions for summary judgment are the
motions leading to the summary judgment order that is the subject of this appeal.
The trial court scheduled JPMorgan’s motions for hearing on November 15, 2012.
Jones requested a continuance of the hearing. JPMorgan did not oppose the
continuance. The trial court granted the continuance and reset the hearing for
November 29, 2012.
Jones filed a response to the motions. In his response, he moved for a
continuance of the hearing on JPMorgan’s no-evidence motion for summary
judgment. The trial court denied Jones’s motion for continuance and heard the
motions. On appeal, Jones does not challenge the denial of his motion for
continuance. On February 8, 2013, the trial court entered an order granting
JPMorgan’s motions for summary judgment. The trial court’s order was general in
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nature; the trial court did not specify the ground or grounds upon which it relied in
granting summary judgment. Jones appeals the summary judgment order.
II. Issues on Appeal
Jones presents four issues for review. In his first issue, he contends that the
trial court’s February 8, 2013 summary judgment order fails to dispose of all
parties and claims and that, therefore, the order is not final and appealable or,
alternatively, is final and erroneous. Based on these contentions, Jones asserts that
this appeal must be dismissed for lack of jurisdiction or that this cause must be
remanded to the trial court for a hearing on the remaining issues. In his second
issue, Jones argues that the trial court erred in granting traditional summary
judgment to JPMorgan based on limitations because Jones filed his 2012
counterclaim in probate court within sixty days of the dismissal of the case in
district court for lack of jurisdiction. See TEX. CIV. PRAC. & REM. CODE § 16.064
(West 2008). In his third issue, Jones contends that the trial court erred by granting
JPMorgan a traditional summary judgment on its affirmative defenses. In his
fourth issue, Jones contends that the trial court erred by granting JPMorgan’s no-
evidence motion for summary judgment.
III. Finality of Judgment
Jones contends in his first issue that the trial court’s order granting summary
judgment is not final because it did not dispose of JPMorgan’s claims for
declaratory relief contained in its original pleading filed in 1999. Generally, courts
of appeals have jurisdiction only over appeals from final judgments. Lehmann v.
Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final for purposes
of appeal if it disposes of all pending parties and claims. Id. This case was filed in
a court sitting in probate. Probate proceedings are an exception to the “one final
judgment” rule. De Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006). In
probate cases, “multiple judgments final for purposes of appeal can be rendered on
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certain discrete issues.” Id. (quoting Lehmann, 39 S.W.3d at 192). In a probate
proceeding, an order is final and appealable before the entire proceeding is
concluded if the order disposes of all parties or issues in a particular phase of the
proceedings. Id. at 579; Crowson v. Wakeham, 897 S.W.2d 779, 783 (Tex. 1995);
In re Guardianship of Benavides, 403 S.W.3d 370, 374 (Tex. App.—San Antonio
2013, pet. denied). However, if the order does not end a phase of the proceedings,
but only “sets the stage” for the resolution of all proceedings, the order is
interlocutory. De Ayala, 193 S.W.3d at 579.
In 1999, Chase, as the independent executor of Sweetie’s estate, filed its
petition for declaratory judgment in the probate proceeding. Chase named
numerous interested parties in its petition: (1) a trustee not yet appointed of a share
of the Mary Catherine Jones Family Trust (for the benefit of Jones and his
descendants) created by Sweetie’s will; (2) Jones, as a beneficiary under Sweetie’s
will; (3) Angela, as a beneficiary under Sweetie’s will; (3) Angela’s son, Tanner,
as a beneficiary under Sweetie’s will; and (4) five charitable organizations as
contingent remainder beneficiaries of trusts created by Sweetie’s will.
Chase attached a final accounting related to Sweetie’s estate as an exhibit to
its petition for declaratory judgment. In its petition, Chase sought orders from the
trial court approving the final accounting and finding that all matters entrusted to
Chase had been handled and accounted for in accordance with the law. Chase also
sought a declaratory judgment from the trial court that Chase had no further duties
or responsibilities to the beneficiaries or contingent beneficiaries as a result of
Sweetie’s will and Chase’s administration of the estate and that Chase had no
liability to any of the beneficiaries or contingent beneficiaries as a result of its
administration of the estate. Chase did not seek to recover attorney’s fees. Nor did
Chase seek to recover damages from any party.
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In response to Chase’s petition for declaratory judgment, Jones filed his
2012 counterclaim against Chase, a predecessor in interest to JPMorgan, for
Chase’s alleged breaches of fiduciary duty. By his claims, Jones asserted that
Chase was liable to him as a result of its administration of Sweetie’s estate.
Jones’s requested relief directly opposed the declaratory relief that Chase sought in
its petition—that it had no liability to him as a beneficiary as a result of its
administration of Sweetie’s estate. In the February 8, 2013 summary judgment
order, the trial court granted summary judgment to JPMorgan on all of Jones’s
claims for affirmative relief. Accordingly, the order necessarily disposed of
JPMorgan’s competing request for declaratory relief that it had no liability to
Jones. Therefore, the order disposed of all issues between Jones and JPMorgan.
We conclude that the trial court’s summary judgment order concluded the phase of
the proceedings related to the “discrete issue” of JPMorgan’s liability to Jones, if
any. See De Ayala, 193 S.W.3d at 578. Because the order disposed of a discrete
issue, the order was final and appealable. Jones’s first issue is overruled.
IV. Trial Court’s Order Granting Summary Judgment
JPMorgan asserted both traditional and no-evidence grounds for summary
judgment. See TEX. R. CIV. P. 166a(c), (i). Where, as here, the trial court does not
specify the ground or grounds on which it relied in granting summary judgment,
we must affirm the summary judgment if any summary judgment ground advanced
by the movant is meritorious. FM Props. Operating Co. v. City of Austin, 22
S.W.3d 868, 872 (Tex. 2000); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).
We find JPMorgan’s no-evidence grounds for summary judgment dispositive of
this appeal. Accordingly, we initially address Jones’s fourth issue concerning
JPMorgan’s no-evidence motion for summary judgment. See BP Am. Prod. Co. v.
Zaffirini, 419 S.W.3d 485, 509 (Tex. App.—San Antonio 2013, pet. denied) (court
first addressed the no-evidence motion for summary judgment because the
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disposition of the no-evidence motion could moot the traditional motion); see also
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).
V. Review of No-Evidence Summary Judgment
JPMorgan’s no-evidence motion for summary judgment addressed all of
Jones’s claims. In his fourth issue, Jones raises three contentions in support of his
argument that the trial court erred in granting the no-evidence summary judgment
to JPMorgan: (1) that JPMorgan’s no-evidence motion was procedurally improper
because it failed to comply with the requirements of Rule 166a(i) of the Rules of
Civil Procedure; (2) that JPMorgan could not properly challenge his breach of
fiduciary duty claims with a no-evidence motion for summary judgment because
JPMorgan had the burden of proof to rebut his self-dealing claims; and (3) that his
summary judgment evidence raised fact issues on his claims.
A. Adequacy of Motion
Rule 166a(i) provides that, “[a]fter adequate time for discovery, a party
without presenting summary judgment evidence may move for summary judgment
on the ground that there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the burden of proof at
trial.” TEX. R. CIV. P. 166a(i). In this case, more than adequate time for discovery
passed before JPMorgan filed its no-evidence motion for summary judgment.
JPMorgan filed the motion more than twelve years after Jones initially asserted his
claims in his 2000 counterclaim. Rule 166a(i) requires that no-evidence motions
for summary judgment “state the elements as to which there is no evidence.” Id.
The comments to Rule 166a(i) state that “[t]he motion must be specific in
challenging the evidentiary support for an element of a claim or defense” and that
“paragraph (i) does not authorize conclusory motions or general no-evidence
challenges to an opponent’s case.” TEX. R. CIV. P. 166a(i) cmt.
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Jones contends that JPMorgan’s no-evidence motion for summary judgment
was procedurally improper because it was “overly broad, non-specific and required
[him] to marshal his evidence prior to trial on the merits.” He complains that
JPMorgan did not challenge specific elements but, instead, challenged “every
single element of every cause of action asserted by [him] in his counterclaim.”
Rule 166a(i) does not limit the number of elements of claims that a party
may challenge in a no-evidence motion for summary judgment. Nelson v. Regions
Mortg., Inc., 170 S.W.3d 858, 861 (Tex. App.—Dallas 2005, no pet.); Cmty.
Initiatives, Inc. v. Chase Bank of Tex., 153 S.W.3d 270, 279–80 (Tex. App.—El
Paso 2004, no pet.); see Gourrier v. Joe Myers Motors, Inc., 115 S.W.3d 570, 574
(Tex. App.—Houston [14th Dist.] 2002, no pet.) (a challenge to forty-one elements
or combination of elements was sufficiently specific). Thus, a defendant may
challenge every element of the plaintiff’s claims, as long as each element is
distinctly and explicitly challenged. Cmty. Initiatives, 153 S.W.3d at 280.
JPMorgan challenged every element of Jones’s claims in its no-evidence
motion for summary judgment. In the motion, JPMorgan identified the challenged
claims, listed the elements of the claims, specifically identified each challenged
element of each claim, and asserted that Jones had no evidence to support the
elements of the claims. JPMorgan distinctly and explicitly challenged each of the
elements of Jones’s claims. The motion was not conclusory and did not constitute
a general no-evidence challenge to Jones’s claims. We conclude that JPMorgan’s
motion complied with the requirements of Rule 166a(i). Nelson, 170 S.W.3d at
861–62.
We note that JPMorgan’s no-evidence motion did not require Jones to
marshal all his evidence before trial. Instead, Jones’s only requirement under Rule
166a(i) was to present more than a scintilla of evidence to raise a genuine issue of
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material fact on the challenged elements. McMahon v. Zimmerman, 433 S.W.3d
680, 689 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
B. Burden of Proof on Jones’s Claims
Jones argues that JPMorgan’s no-evidence motion for summary judgment
was improper because JPMorgan had the burden of proof to rebut his breach of
fiduciary duty claims. A movant cannot obtain a no-evidence summary judgment
on a claim or defense on which the party has the burden of proof at trial.
Foreman v. Whitty, 392 S.W.3d 265, 279 (Tex. App.—San Antonio 2012, no pet.).
Ordinarily, to prevail on a claim for breach of fiduciary duty, the plaintiff
must prove (1) that a fiduciary relationship existed between the plaintiff and the
defendant, (2) that the defendant breached its fiduciary duty to the plaintiff, and
(3) that the breach resulted in an injury to the plaintiff or a benefit to the defendant.
Zhu v. Lam, 426 S.W.3d 333, 339 (Tex. App.—Houston [14th Dist.] 2014, no
pet.). However, when a plaintiff alleges self-dealing by the fiduciary as part of a
claim for breach of a fiduciary duty, a presumption of unfairness arises. Fleming v.
Curry, 412 S.W.3d 723, 732 (Tex. App.— Houston [14th Dist.] 2013, pet. denied);
Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.—Houston [14th Dist.] 2011,
pet. denied). Self-dealing can be generally defined as an occurrence in which the
fiduciary uses the advantage of his position to gain a benefit at the expense of those
to whom he owes a fiduciary duty. Mims-Brown v. Brown, 428 S.W.3d 366, 374
(Tex. App.—Dallas 2014, no pet.).
The presumption of unfairness applies to transactions between a fiduciary
and a principal in which the fiduciary profits or obtains a benefit. Tex. Bank &
Trust Co. v. Moore, 595 S.W.2d 502, 508–09 (Tex. 1980) (presumption applied to
transactions in which the fiduciary transferred the principal’s money to the
fiduciary’s personal account); Celmer v. McGarry, 412 S.W.3d 691, 706 (Tex.
App.—Dallas 2013, pet. denied) (presumption applied to a fee agreement between
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a fiduciary (lawyer) and his client). In such cases, the profiting fiduciary bears the
burden to rebut the presumption by proving the fairness of the questioned
transaction. Moore, 595 S.W.2d at 508–09; Lundy v. Masson, 260 S.W.3d 482,
505 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
Jones made limited “self-dealing” allegations against JPMorgan in his
counterclaim. Specifically, he alleged that “the bank transferred assets[,] including
stocks[,] bonds[,] and oil and gas working interests to entities called P M Adams
Inc[.] and Adalin, Inc[.]” and that “both of these entities were, upon information
and belief, controlled by business associates of or officers of the bank.” Jones
further alleged that “[b]oth transactions are improperly accounted for [and]
constitute self-dealing, and resulted in losses to the estate.” In the punitive
damages section of his counterclaim, Jones alleged that “[t]he Bank knew of its
fiduciary duties to the beneficiary and intentionally failed to exercise them as
follows[:] . . . in self-dealing to the detriment of the estates with Anadarko[,] P M
Adams Inc[.,] Adalin Inc[.,] and others.”
Jones’s “self-dealing” claims do not involve alleged transactions between
JPMorgan, as a party, and Sweetie Boyle’s estate, as a party, in which JPMorgan
allegedly profited or obtained a benefit. He did not allege that JPMorgan entered
into an agreement with the estate or that JPMorgan transferred estate assets to
itself. Instead, Jones alleged that JPMorgan transferred estate assets to other
parties, including P M Adams Inc., Adalin, Inc., and Anadarko. We conclude that
the presumption of unfairness does not apply to the alleged transactions involving
these parties. Therefore, JPMorgan did not have the burden of proof to rebut a
presumption of unfairness with respect to the transactions. Instead, Jones carried
the burden of proof on his breach of fiduciary duty claims. However, even if
JPMorgan carried the burden to rebut the presumption of unfairness on certain
transactions, Jones had the summary judgment burden to raise a fact issue on the
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damages element of his claims for breach of fiduciary duty. See Zhu, 426 S.W.3d
at 339 (plaintiff must show that the breach resulted in an injury to the plaintiff or a
benefit to the defendant).
C. Application of Standard of Review
We review a summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a no-
evidence summary judgment under the same legal sufficiency standard as a
directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex.
2003). Accordingly, we examine the record in the light most favorable to the
nonmovant and disregard all contrary evidence and inferences. Id.; Wal-Mart
Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). A no-evidence motion
is properly granted if the nonmovant fails to bring more than a scintilla of
probative evidence to raise a genuine issue of material fact as to a challenged
element of the nonmovant’s claim on which the nonmovant would have the burden
of proof at trial. Ford Motor Co., 135 S.W.3d at 600; King Ranch, 118 S.W.3d at
751.
Jones contends that his summary judgment evidence was sufficient to raise
fact issues on his claims. Specifically, he contends that the evidence raised fact
issues on his claims for breach of common-law fiduciary duty, breach of statutory
duties, civil conspiracy, and fraud. In his response to JPMorgan’s no-evidence
motion for summary judgment, Jones relied on summary judgment evidence that
he had filed in response to earlier motions for summary judgment. He stated as
follows in the response:
By way of further reply, . . . Jones would attach and incorporate
herein by reference and by way of summary judgment evidence, all
the prior summary judgment evidence filed in connection with and
addressed in Jones’[s] original summary judgment response on
January 2, 2001 and located within the Court’s file as well as the
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summary judgment response and evidence filed by Jones on
September 4, 2001 and incorporate both herein by reference.
In his response, Jones did not identify the evidence that he filed in connection with
his January 2, 2001 response or with his September 4, 2001 response.
A review of the record shows that Jones filed excerpts from his 230-page
deposition that was taken on September 27, 2000, and some of the exhibits to that
deposition as summary judgment evidence with his January 2, 2001 response. The
record also shows that Jones filed his entire September 27, 2000 deposition and
some of the exhibits to that deposition as summary judgment evidence with his
September 4, 2001 response. Thus, in his response to JPMorgan’s no-evidence
motion for summary judgment filed in 2012, Jones incorporated by reference as
summary judgment evidence his September 27, 2000 deposition testimony and
some of the exhibits to his deposition. Jones did not file any additional summary
judgment evidence with his response. Jones merely incorporated over two hundred
pages of earlier summary judgment evidence in his response to JPMorgan’s no-
evidence motion. He did not cite any specific evidence or point out any specific
evidence that he contended raised a fact issue on any of the elements of his claims.
In response to a no-evidence ground for summary judgment, the nonmovant
must specifically point out the evidence that raises a genuine issue of material fact
as to each challenged element. San Saba Energy, L.P. v. Crawford, 171 S.W.3d
323, 330 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The nonmovant cannot
meet its summary judgment burden to raise a fact issue by merely incorporating
hundreds of pages of evidence and generally claiming that the evidence raises a
fact issue. Id. at 330–32. Otherwise, the trial court would have the onerous task of
searching the summary judgment evidence to determine whether a genuine issue of
material fact has been raised as to each challenged element. Such a procedure
would place an unreasonable burden on the trial court. Id. at 331. Because Jones
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did not point out evidence that allegedly raised fact issues on the challenged
elements of his claims, his response was insufficient to raise a fact issue on his
claims. Therefore, we conclude that the trial court did not err by granting
JPMorgan’s no-evidence motion for summary judgment.
Additionally, we have reviewed Jones’s September 27, 2000 deposition in
its entirety. Based on our review, we conclude that his deposition testimony
provides no more than conclusory testimony and mere speculation on his part that
JPMorgan breached any duty to him and that JPMorgan’s alleged breaches caused
him any damages. Conclusory testimony is not competent summary judgment
evidence and is insufficient to create a question of fact to defeat summary
judgment. McIntyre v. Ramirez, 109 S.W.3d 741, 749 (Tex. 2003); Montoya v.
Nichirin-Flex U.S.A., Inc., 417 S.W.3d 507, 513 (Tex. App.—El Paso 2013, no
pet.). Likewise, testimony that amounts to nothing more than speculation is not
competent summary judgment evidence. Am. Tobacco Co. v. Grinnell, 951
S.W.2d 420, 437 (Tex. 1997). Thus, even assuming that Jones’s deposition was
properly before the trial court for consideration as summary judgment evidence,
Jones’s testimony was insufficient to raise fact issues on his claims.
Jones’s fourth issue is overruled. Based on our ruling on Jones’s fourth
issue, we need not address his second and third issues. See TEX. R. APP. P. 47.1.
VI. This Court’s Ruling
We affirm the order of the trial court.
December 18, 2014 JOHN M. BAILEY
Panel consists of: Wright, C.J., JUSTICE
Bailey, J., and Judge Rucker.2
Willson, J., not participating.
2
Dean Rucker, Judge, 318th District Court, Midland County, Texas, sitting by assignment.
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