NO CV IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS BANK OF TEXAS, N.A., Appellant, WILLIAM RAVKIND, Appellee.

Transcription

1 NO CV ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 12 February 21 P9:30 Lisa Matz CLERK IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS AT DALLAS BANK OF TEXAS, N.A., v. Appellant, WILLIAM RAVKIND, Appellee. ON APPEAL FROM THE 193RD JUDICIAL DISTRICT COURT OF DALLAS COUNTY, TEXAS REPLY BRIEF OF APPELLANT BANK OF TEXAS, N.A. ORAL ARGUMENT REQUESTED Barbara L. Emerson Texas State Bar No BELLINGER & DeWOLF, LLP 10,000 N. Central Expy, Suite 900 Dallas, Texas Telephone: 214/ Facsimile: 214/ ATTORNEYS FOR APPELLANT BOKF, N.A. d/b/a BANK OF TEXAS, successor-in-interest to BANK OF TEXAS, N.A.

2 TABLE OF CONTENTS Table of Contents... i Table of Authorities... iii Reply Issues Presented... iv Statement Of Facts... 1 Summary Of Argument... 3 Argument... 4 Reply Issue No. 1: Appellee Has Failed to Respond to Appellant's Issue No. 3 Regarding the Effect of the Trial Court's Granting Summary Judgment on Affirmative Defenses Which Had Been Dismissed, Therefore that Issue is Uncontested Reply Issue No. 2: Reply Issue No. 3: To the extent Appellee Relies on the Allegation That There is a Forgery As Grounds for His Summary Judgment. (A) This Ground For Summary Judgment Was Not Presented to the Trial Court and Cannot Sustain Appellee's Summary Judgment. (B) Appellee Has Failed To Respond or Reply to Appellant's Issue No the Issue is Waived. (C) Appellee Failed to Meet His Summary Judgment Burden on the Issue of Forgery Appellee Fails to Recognize Recent Texas Supreme Court Authority on the Economic Loss Rule Which Does Not Bar Appellant's Claim Reply Issue No. 4: Appellee's Request for Damages For a Frivolous Appeal is Specious and Should Be Stricken Conclusion Certicate of Service i

3 TABLE OF AUTHORITIES Cases Ceballos v. El Paso Health Care Systems, 881 S.W.2d 439 (Tex. App. El Paso 1994) D.S.A., Inc. v. Hillsboro Indep. Sch. Dist. 973 S.W.2d 662 (Tex. 1998) (per curiam) David v. Esmaili, 761 S.W.2d 827 (Tex. App. Dallas 1988 no writ) Fredonia State Bank v. Gen. Am. Life Ins. Co. 881 S.W.2d 279 (Tex. 1994)... 8 Golden Triangle Energy v. Wickes Lumber, 725 S.W.2d 439, 441 (Tex. App. Beaumont 1987, no writ... 6 Gonzales v. Shing Wai Brass & Metal Wares Factory, Ltd., 190 S.W.3d 742 (Tex. App. San Antonio 2005, no pet.)... 7, 9 Green v. Reyes, 836 S.W.2d 203 (Tex. App. Houston [14 th Dist.] 1992, no writ)... 9 IHS Cedars Treatment Center of DeSoto, TX, Inc. v. Mason, 143 S.W. 3d 794, (Tex. 2004)... 9 In re Estate of Edna S. Watson 720 S.W.2d 806 (Tex. 1986)... 9 Jacobs v. Texas Kenworth Co., No , 2000 Tex. App. LEXIS 5092 (Tex. App. Dallas 2000 pet. denied).12 Johnson v. Brewer & Pritchard, 73 S.W.3d 193(Tex. 2002)... 6 Methodist Hosp. of Dallas v. Corp. Communicators, Inc., 806 S.W.2d 879 (Tex. App. Dallas 1991, writ denied) Rubenstein & Sons Produce, Inc. v. State, 272 S.W.2d 613 (Tex. Civ. App. Dallas 1954, writ ref'd n.r.e.)... 8 ii

4 Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex. 2011)... 10, 12 Stiles v. RTC, 867 S.W.2d 24 (Tex. 1993)... 6 The Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997)... 6 Trans-Gulf Corp. v. Performance Aircraft Servs., Inc., 82 S.W.3d 691 (Tex. App. -- Eastland 2002, no pet.) Wadewitz v. Montgomery, 951 S.W.2d 464 (Tex. 1996)... 9 West v. Hamilton, No , 2008 Tex. App. LEXIS 7694 (Tex. App. Amarillo, Oct. 9, 2008, pet. dismiss'd.)... 7 Rules TEX. R. APP. P. 38.1(g)... 1, 4 TEX. R. APP. P. 38.1(i)... 4 TEX. R. APP. P TEX. R. APP. P. 38.2(a)... 8 TEX. R. APP. P TEX. R. CIV. P. 166a(c)... 5, 6, 9 TEX. R. CIV. P. 93(7)... 8 iii

5 REPLY ISSUES PRESENTED Reply Issue No. 1: Appellee has Failed to Respond to Appellant's Issue No. 3 Regarding the Effect of the Trial Court's Granting Summary Judgment on Affirmative Defenses Which Had Been Dismissed. Therefore that Issue is Uncontested, and Appellant's Facts are Taken as True. Reply Issue No. 2: Reply Issue No. 3: Reply Issue No. 4: To the extent Appellee Relies on the Allegation That There is a Forgery As Grounds for His Summary Judgment: (A) (B) (C) This Ground For Summary Judgment Was Not Presented to the Trial Court and Cannot Sustain Appellee's Summary Judgment; Appellee Has Failed To Respond or Reply to Appellant's Issue No the Issue is Waived. Appellee Failed to Meet His Summary Judgment Burden Based on the Issue of Forgery. Appellee Fails to Recognize Recent Texas Supreme Court Authority on the Economic Loss Rule Which Does Not Bar Appellant's Claim. Appellee Request for Damages For a Frivolous Appeal is Specious and Should be Stricken. iv

6 STATEMENT OF FACTS Appellee's Statement of Facts fails to comply with TEX. R. APP. P. 38.1(g) as it fails to provide a statement of facts without argument and fails to support the alleged facts by record citation. In response Appellant contests the Statement of Facts by Appellee. Appellant contends the following in Appellee's Statement of Facts fail to comply with TEX. R. APP. 38.1(g) in that there is no reference to or support in the record: 1. "Plaintiff/Appellant tries to attach liability to Appellee Ravkind by attempting to use documentation from an entirely unrelated transaction with an unrelated bank and unrelated property to Appellant's loan transaction wherein the Appellant Bank lost monies because of its totally inept loan underwriting and management practices. An altogether different transaction (with different property, different bank, different mortgage broker) which did involve Ravkind, was never closed, was attempted in the summer of The transaction at issue in this case occurred in the spring of Any document purporting to bear Mr. Ravkind's signature involving Appellee are forgeries." 2. Appellee met "someone who purported to be Cindy Lantrip." 3. "Lantrip (or someone who purported to be Cindy Lantrip) presented Ravkind with documentation regarding her finances." Lantrip, then explained to Ravkind that she was self employed and had money coming in from different places. Lantrip explained that she need to verify her finances and presented Ravkind with a Request for Verification of Deposit, for him to sign, along with her bank statements and financial documents." 4. "Ravkind informed the person from Bright Mortgage that he did not understand why he was being asked to sign the Request for Verification of Deposit. Ravkind then informed the Bright Mortgage broker that he did not hold funds, that the bank that holds the trust accounts is whom should contact to verify the amounts. Ravkind explained that he was only presented with bank documents which indicated the funds existed. The Bright Mortgage broker then assured Ravkind that the Mortgage Company would do its own due diligence as to the verification of funds. Ravkind then informed the broker, that he can only verify as to what documents Lantrip had shown him, and what she had explained about her finances. The broker from Bright Mortgage then informed Ravkind that the documents Lantrip had shown him were sufficient, and that any due diligence on the verification of deposits BRIEF OF APPELLANT PAGE 1

7 would be done by the mortgage company. Ravkind then signed the Request for Verification of Deposit. Ravkind then forwarded this Request for Verification of Deposit to Troy Jones, of Bright Mortgage. All of which occurred in the summer of 2007." 5. The 2008 loan "was obtained with forged documents." 6. "Ravkind appeared without counsel, unaware of Appellant's intent, to soon thereafter, sue Ravkind, and bring him in as a party to this suit. Ravkind was assumingly brought into the underlying lawsuit because the borrowers presented the forged Verification of Deposit form bearing what was believed to be Ravkind's signature. Appellant was negligent at every state of the underwriting and servicing of the loan in lending out an enormous sum of money to Lantrip, without proper due diligence, its actions and failure to comply with banking rules and regulations, failure to monitor loan draw requests and its falure to comply with prudent lending practices." 7. "There were several forged documents in addition to the Request for Verification of Debt. As the evidence presented to the court below showed, the verification form was not requested by, directed toward Appellant nor was given in relationship to any loan made by Appellant and had been done six months earlier based upon express disclosures by Ravkind to the broker in the unrelated transaction. " Further by his Statement of Facts Appellee judicially admits he signed the Verification of Deposits at issue in this case. 1 1 In Paragraph 4 of the Statement of Facts, Appellee states "Ravkind then signed the Request for Verification of Deposit. (CR-75)." CR 75 is the record reference to the January 8, 2008 Verification of Deposits from the business records of the Bank of Texas used to underwrite the loan to Cindy Lantrip. CR 34. BRIEF OF APPELLANT PAGE 2

8 SUMMARY OF ARGUMENT Appellant BOKF, N.A. d/b/a Bank of Texas, successor-in-interest to Bank of Texas, N.A. has filed this reply to certain of the issues presented in Appellee's Brief. By its limited reply Appellant does not admit or waive any opposition to Appellee's issues. Moreover, Appellant does not concede Appellee's compliance with TEX. R. APP. P In fact, Appellee's brief fails to comply with rules in that it fails to identify responsive issues in any direct and concise manner and the briefing remains unclear. In reply, Appellant contends the Appellee makes no attempt to respond to two (2) issues. The first is the affect of the Trial Court's February 14, 2011, order dismissing certain of the Appellee's affirmative defenses. The second is whether Appellee properly presented "forgery" as a ground for summary judgment. The failure to contest these two (2) issues should be determinative of the issues. As to Appellee's allegations of forgery, that defense or allegation was never presented to the Trial Court as grounds for summary judgment. The attachment of Ms. Abbey's deposition testimony was insufficient to present the issue as grounds for summary judgment. Even if it was held this ground for summary judgment was before the Trial Court, Appellee failed to meet the burden of establishing the defense as a matter of law. The expert testimony was deficient and could not support summary judgment. Appellee failed to address the recent ruling of the Texas Supreme Court which confirmed that the economic loss rule does not bar the claim for negligent misrepresentation. Lastly, Appellee's claim for damages for a frivolous appeal should be stricken. BRIEF OF APPELLANT PAGE 3

9 ARGUMENT Reply Issue No. 1: Appellee Has Failed to Respond to Appellant's Issue No. 3 Regarding the Effect of the Trial Court's Granting Summary Judgment on Affirmative Defenses Which Had Been Dismissed, Therefore that Issue is Uncontested. Appellant's Issue No. 3 is premised on the Trial Court's Order of February 14, 2011, granting Appellant's No-Evidence Summary Judgment as to some of Appellee's affirmative defenses. This fact in Appellant's Statement of Facts has not been contraverted by Appellee. The Court is required to take this as an established fact. TEX. R. APP. P. 38.1(g). Not only has Appellee failed to contradict the statement of fact, he has failed to respond to the issue. Appellee does not cite any contrary evidence in the record or make any specific argument that the grounds identified in his summary judgment motion as: Ratification of Waiver of Liability; CR 63; Judicial Admission Plaintiff's Response in Opposition to Defendant Clint M. Glenny, II's No-Evidence and Traditional Motion for Summary Judgment; CR 66; and Estoppel-No Reliance CR 68. were dismissed by the Trial Court's Order of February 14, 2011 and cannot be grounds to sustain the summary judgment. Reply Issue No. 2: To the extent Appellee Relies on the Allegation That There is a Forgery As Grounds for His Summary Judgment. (A) This Ground For Summary Judgment Was Not Presented to the Trial Court and Cannot Sustain Appellee's Summary Judgment. (B) Appellee Has Failed To Respond or Reply to Appellant's Issue No the Issue is Waived. BRIEF OF APPELLANT PAGE 4

10 (C) Appellee Failed to Meet His Summary Judgment Burden on the Issue of Forgery. (A) This Ground For Summary Judgment Was Not Presented to the Trial Court and Cannot Sustain Appellee's Summary Judgment. In his responsive briefing Appellee fails to respond to Appellant's Issue No. 7, that the issue of forgery was not presented as a ground for summary judgment. Though Appellee's Issue No. 2 is neither clear nor concise, he apparently argues to this Court that he was entitled to a traditional summary judgment on the grounds the signature on the Verification of Deposits was a forgery. Yet the brief is devoid of any argument, citation to the record, or any briefing to support the proposition that this was a ground presented by his motion for summary judgment. Appellee makes factual allegations that the Verification of Deposit was a forgery, but no reference is made to any evidence in the record. See Appellee's Brief, pg. 2, 1; pg 4, 8; pg. 4, 9. At page 8, paragraph 15, Appellee cites to a record reference which neither identifies the document purportedly forged and nor part of any argument or issue. Rather the footnote (note 2) seeks to identify what an expert's testimony will be. However, Appellee does not identify the testimony or the documents which are the subject of the testimony. 2 The TEXAS RULES OF CIVIL PROCEDURE are clear, any grounds for summary judgment must be specifically stated in the motion. RULE 166a(c) states "[t]he motion for summary judgment shall state the specific grounds therefor." TEX. R. CIV. P. 166a(c) (emphasis added). Golden Triangle Energy v. Wickes Lumber, 725 S.W.2d 439, 441 (Tex. App. Beaumont 2 At the same time, in his Statement of Facts, Appellee states "Ravkind then signed the Request for Verification of Deposits. (CR 75)". That record citation, CR 75, is the Verification of Deposits dated January 8, 2008; the same Verification of Deposits attached to Plaintiff's First Amended Original Petition (CR 39) and the basis for Appellant's claims. CR 589, Normile Aff. 1, Ex. 1 BRIEF OF APPELLANT PAGE 5

11 1987, no writ). RULE 166a(c) "unequivocally restricts the trial court's ruling to issues raised in the motion, response, and any subsequent replies." Stiles v. RTC, 867 S.W.2d 24, 26 (Tex. 1993). "[S]ummary judgment cannot be affirmed on grounds not expressly set out in the motion or response." Id. In determining whether the grounds have been expressly presented the Court cannot rely on evidence that is merely attached or filed. The Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) ("A motion for summary judgment must itself expressly present the grounds upon which it is made, and must stand or fall on these grounds alone."). In the "Introduction" of Appellee's summary judgment motion (CR 49-73) he makes reference that a Verification of Deposit was a tracing forgery, referencing generally the 85 page deposition of Ms. Abbey. CR 51. However, none of the six (6) identified grounds for his traditional summary judgment are premised on a forgery, nor is any evidence identified in the motion to support such a ground. Similarly, in the appellate briefing Appellee references the issue generally under his "Summary of the Argument", his general argument that summary judgment was proper under a no-evidence standard, and his general statement that the traditional summary judgment was proper. See Appellee's Brief, pgs. 6 and 14. Appellee makes no attempt to establish, or reference in the record, where or how the issue was presented to the Trial Court. A general reference to evidence in the summary judgment proceedings fails to present the grounds for summary judgment as a matter of law. Johnson v. Brewer & Pritchard, 73 S.W.3d 193, 204 (Tex. 2002). In Johnson, the defendants set out facts and record cites to evidence in a portion of the motion entitled "Procedural Background." However, in the BRIEF OF APPELLANT PAGE 6

12 section of the motion setting grounds for summary judgment, defendants failed to incorporate that discussion or refer to or rely on evidence identified in the "Procedural Background." The Texas Supreme Court held the grounds were not included in their motion and the trial court erred in granting summary judgment. The general reference to Ms. Abbey's deposition did not place the issue before the Trial Court. Ms. Abbey's entire deposition was attached to Appellee's summary judgment motion. The only reference to that evidence is in the "Introduction" where Appellee's states: "As set forth in the opinion of Defendant's handwriting expert Susan Abbey, the supposed Verification of Deposit form from the Plaintiff's loan files was a tracing forgery. (See Deposition of Susan Abbey, Exhibit H)". CR 51. When presenting the summary judgment proof that the movant seeks to have the trial court consider "Attaching entire documents and referencing them only generally does not relieve the party of pointing out to the trial court where in the documents the issues set forth in the motion or response are raised." Gonzales v. Shing Wai Brass & Metal Wares Factory, Ltd., 190 S.W.3d 742, 746 (Tex. App. San Antonio 2005, no pet.). The movant must specifically direct the Court and the parties to the evidence on which it is relying. West v. Hamilton, No , 2008 Tex. App. LEXIS 7694 *10 (Tex. App. Amarillo, Oct. 9, 2008, pet. dismiss'd.). (B) Appellee Has Failed To Respond or Reply to Appellant's Issue No the Issue is Waived. In its initial briefing and statement of issues presented, Appellant specifically challenged the Trial Court's ability to grant summary judgment on the grounds the Verification of Deposits was alleged to be a forgery. See Brief of Appellant Bank of Texas, BRIEF OF APPELLANT PAGE 7

13 pgs Appellee has failed to respond to this issue. This Court has no duty to make an independent search of the record to determine whether the appellant's facts and issues should be challenged. Appellee carries that burden. Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, (Tex. 1994); Rubenstein & Sons Produce, Inc. v. State, 272 S.W.2d 613, 621 (Tex. Civ. App. Dallas 1954, writ ref'd n.r.e.)("it is not our duty to search the record for supporting evidence.") Appellees are required to respond or provide a clear and concise statement of the argument, with authority and citation to the record. TEX. R. APP. P. 38.2(a), 38.1(i). Appellee has failed to so. 3 (C) Appellee Failed to Meet His Summary Judgment Burden on the Issue of Forgery. As the movant for a traditional motion for summary judgment Appellee carried the burden of conclusively negating at least one essential element of the Plaintiff's cause of action as a matter of law or conclusively establishing all the essential elements of an affirmative defense. See, The Science Spectrum, 941 S.W.2d at 911. Appellee's allegation that the Verification of Deposits was a forgery is an affirmative defense upon which he carried the burden of proof at trial. TEX. R. CIV. P. 93(7); Methodist Hosp. of Dallas v. Corp. Communicators, Inc., 806 S.W.2d 879, (Tex. App. Dallas 1991, writ denied). In support of his forgery argument Appellee relies on his affidavit and the unspecified testimony of an expert, Susan Abbey. Ravkind's testimony is expressly contradictory. As referenced in Appellant's Brief, Appellee, an experienced litigation attorney 4, testified under 3 By this argument the Appellant does not concede that any of Appellee's briefing complies with the briefing requirements of Rule 38.1 or Appellee's brief appears to be little more than a reprint of the confusing and ambiguous motion for summary judgment. 4 CR 635, Ravkind 7: BRIEF OF APPELLANT PAGE 8

14 oath that the signed the Verification of Deposit; that it was not a forgery. CR 623, 624, 631. It was only after suit was filed that his position changed. While Appellee attempts to rely upon the deposition of Susan Abbey, aside from the procedural deficiencies discussed above, her testimony cannot support the summary judgment. RULE 166a(c) provides that testimonial evidence of an expert can support summary judgment "as to a subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts." Handwriting is not such a subject matter. No expert is required for a determination of the genuineness of signatures. The trier of fact may make the determination whether signatures are genuine when given the opportunity to compare signatures. In re Estate of Edna S. Watson, 720 S.W.2d 806, 808 (Tex. 1986); Green v. Reyes, 836 S.W.2d 203, 212 (Tex. App. Houston [14 th Dist.] 1992, no writ). Additionally, the testimony of Ms. Abbey cannot support summary judgment. In order to support summary judgment the expert's testimony must be clear, positive and direct. It must be more than conclusory statements of opinion. IHS Cedars Treatment Center of DeSoto, TX, Inc. v. Mason, 143 S.W. 3d 794, 803 (Tex. 2004); Wadewitz v. Montgomery, 951 S.W.2d 464, (Tex. 1996). The expert testimony evidence must include the underlying facts for the opinion and link those facts to the basis of the expert's conclusions. If the expert is relying on documents or records, those must be attached and part of the summary judgment record. Each of these must be specifically identified if the party seeks to have the court consider the same. Gonzales, 190 S.W.3d at 746; Ceballos v. El Paso Health Care Systems, 881 S.W.2d 439, BRIEF OF APPELLANT PAGE 9

15 (Tex. App. El Paso 1994). In this suit Appellee failed to present a valid expert opinion. Appellee merely attached a deposition, without exhibits, and only generally referenced the testimony (i.e. the entire deposition). Appellee failed to meet his burden to establish sufficient evidence to establish his defense as a matter of law. Reply Issue No. 3: Appellee Fails to Recognize Recent Texas Supreme Court Authority on the Economic Loss Rule Which Does Not Bar Appellant's Claim. As part of his Issue 1, Appellee continues to assert that the economic loss rule bars the Appellant's claim for negligent misrepresentation. In doing so, Appellee fails to address the most recent Texas Supreme Court discussion of the economic loss rule in Sharyland Water Supply Corp. v. City of Alton, 354 S.W.3d 407 (Tex. 2011). As stated by the Court: [W]e have applied the economic loss rule only in cases involving defective products or failure to perform a contract... Although we applied this rule even to parties not in privity (e.g. a remote manufacturer and a consumer), we have never held that it precludes recovery completely between contractual strangers in a case not involving a defective product... Supra, at, 2011 Tex. LEXIS 805, *25. In Sharyland, the plaintiff sought recovery against a defendant, who under contract with the City, negligently installed sewer lines which violated safety codes and threatened contamination of water lines owned by the plaintiff. In reversing the Court of Appeals' holding that the economic loss rule barred the plaintiff's negligence claim, the Court stated: To say that the economic rule "preclude[s] tort claims between parties who are not in contractual privity" and that damages are recoverable only if they are accompanied by "actual physical injury or property damages," [citation omitted] overlooks all of the tort claims for which courts have allowed recovery of economic damages even absent physical injury or property damage [citation omitted]. Among these are negligent mispresentation, BRIEF OF APPELLANT PAGE 10

16 Sharyland, 354 S.W.3d at, 2011 Tex. LEXIS 805, * The Texas Supreme Court reinstated the jury verdict holding the mere fact the conduct at issue, construction of the sewer, was the subject of a contract does not bar suit for breach of an independent tort duty. Sharyland, 354 S.W.3d at, 2011 Tex. LEXIS 805, *31. As Sharyland demonstrates the mere presence of a contract in the dispute does not automatically invoke the economic loss rule. As discussed upon, the economic loss rule does not apply to parties "without even remote contractual privity." Sharyland, 354 S.W.3d at, 2011 Tex. LEXIS 805, *34. However, the Texas Supreme Court has applied it to negligent misrepresentation claims between parties who are in contractual privity. D.S.A., Inc. v. Hillsboro Indep. Sch. Dist., 973 S.W.2d 662, 663 (Tex. 1998) (per curiam). However, any reliance on D.S.A. is misplaced in this case. In D.S.A. the plaintiff's claims arose from a construction contract between the plaintiff school district and the defendant contractor. In D.S.A. the Texas Supreme Court held that where the parties had a contractual relationship the plaintiff must show an "injury independent from the bargained for performance of the contracts." Id. at The facts of this case are even further removed from the economic loss rule than in Sharyland. In this suit, Appellee is not a contracting party; there is no contract which defines or creates his duties or obligations. His duty, if any, is imposed independent of any contract. It is an independent tort duty. Unlike D.S.A. and the case cited therein, the duties imposed on Appellee, and the damages sought, do not arise from a contractual relationship with the BRIEF OF APPELLANT PAGE 11

17 Appellee. Appellee has not and cannot point to a contract which created or gave rise to his duty. Appellee also relies on the pre-sharyland case of Trans-Gulf Corp. v. Performance Aircraft Servs., Inc. 5 However, in addition to the fact Trans-Gulf did not address the negligent misrepresentation claim, it remains an open question whether its holding on the economic loss rule survives Sharyland. Reply Issue No. 4: Appellee's Request for Damages For a Frivolous Appeal is Specious and Should Be Stricken. In his briefing, Appellee seeks to move for sanctions under TEX. R. APP. 45 on the grounds the appeal is frivolous. The request is specious and made in bad faith. Appellee cites no authority or record reference in support of his motion. Appellant emphatically states the appeal was not filed for purposes of delay; it is not frivolous. Even if Appellant is not ultimately successful, the questions of law and fact are not settled. In order to impose sanctions the court must find the likelihood of success was so improbable as to make this appeal taken for delay without sufficient cause. David v. Esmaili, 761 S.W.2d 827, 830 (Tex. App. Dallas 1988 no writ). This requires a showing there was 1) no reasonable grounds to believe the case would be reversed; 2) the appeal was only for delay and 3) it was made in bad faith. Jacobs v. Texas Kenworth Co., No , 2000 Tex. App. LEXIS 5092 *11 (Tex. App. Dallas 2000 pet. denied). Appellant contends it is entitled to have the summary judgment set aside and the claim against Appellee remanded for trial. This appeal is not frivolous S.W.3d 691 (Tex. App. Eastland 2002, no. pet.). BRIEF OF APPELLANT PAGE 12

18 CONCLUSION The Trial Court erred in granting summary judgment, there were neither legal grounds nor factual support for the summary judgment. Appellant respectfully requests this Court to reverse the summary judgment and remand the case for trial. Respectfully submitted, /s/barbara L. Emerson Barbara L. Emerson Texas State Bar No BELLINGER & DeWOLF, LLP 10,000 N. Central Expy, Suite 900 Dallas, Texas Telephone: 214/ Facsimile: 214/ ATTORNEYS FOR APPELLANT BOKF, N.A. d/b/a Bank of Texas, successor-in-interest to Bank of Texas, N.A. BRIEF OF APPELLANT PAGE 13

19 CERTICATE OF SERVICE I certify that a true and correct copy of this brief was served on all parties listed below by certified mail, return receipt requested on the 21st day of February, 2012, with an electronic copy sent via VIA JHCBlue@aol.com John H. Carney John H. Carney & Associates One Meadows Building 5005 Greenville Avenue, Suite 200 Dallas, Texas VIA CMRRR VIA FACSIMILE /s/barbara L. Emerson Barbara L. Emerson BRIEF OF APPELLANT PAGE 14