1001-mckinney-ltd-v-credit-suisse-first-boston-mortgage-capital-credit ( 2005 )

Reversed and Remanded in Part, Affirmed in Part, and Majority and Concurring and Dissenting Opinions filed November 23, 2005

Affirmed in Part, Reversed and Remanded in Part, and Majority and Concurring and Dissenting Opinions filed November 23, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00844-CV

____________

1001 McKINNEY LTD., Appellant

V.

CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL,

CREDIT SUISSE FIRST BOSTON LLC, SITUS, INC.,

SITUS CAPITAL SERVICES, INC., SITUS REALTY SERVICES, INC.,

AND SITUS SERVICING, INC., Appellees

_______________________________________________________________________

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 01-62097

_______________________________________________________________________

C O N C U R R I N G   A N D   D I S S E N T I N G   O P I N I O N

The statute of frauds bars any recovery by 1001 McKinney Ltd. (the ABorrower@) against Credit Suisse First Boston Mortgage Capital (the ALender@)^[1] and Credit Suisse First Boston LLC^[2] (the ALender=s Parent@) on the alleged oral contract, but not for the reasons stated in the majority opinion.  The court correctly affirms the summary judgment in favor of the Lender and the Lender=s Parent (collectively, the ACredit Suisse Parties@) on the Borrower=s claims alleging breach of an alleged oral contract, statutory fraud, negligent misrepresentation, conspiracy, and promissory estoppel.  The court also correctly concludes that, because the Borrower=s statutory fraud, negligent misrepresentation, and conspiracy claims arise from the alleged oral loan agreement, the trial court did not err in entering summary judgment on these tort claims. But the court errs in concluding there is a fact issue as to whether the Borrower=s claimed reliance on the alleged fraudulent representations of the Credit Suisse Parties was justifiable.  Therefore, the court should not reverse and remand the part of the Borrower=s common-law fraud claim that seeks out-of-pocket damages.  Instead, the court should affirm the trial court=s judgment in all respects. 

I.  Contract Claims Against the Lender=s Parent

The court reaches the correct result in determining that the Borrower=s contract claim is unenforceable based upon section 26.02(b) of the Texas Business and Commerce Code, but the majority=s analysis is flawed in some respects.

A.        The Borrower waived its objections to the summary-judgment proof.

The majority addresses the merits of the Borrower=s objections to the affidavit of Thomas Zingalli, a Director in the Controller=s Division of the Lender=s Parent, and the documents described in his affidavit. With one exception, it is unnecessary to reach the Borrower=s arguments regarding the alleged inadmissibility of the summary-judgment proof because under this court=s precedent, the asserted objections were waived when the Borrower failed to secure rulings on them.  See Nowak v. DAS Invest. Corp., 110 S.W.3d 677, 679 (Tex. App.CHouston [14th Dist.] 2003, no pet.) (stating objection to summary-judgment affidavit waived by failure to obtain ruling.)  The exception is the objection that the Zingalli affidavit is conclusory.  Though no objection was needed to preserve this issue for appellate review,^[3] it has no merit.  The Zingalli affidavit is clear and specific and gives the factual foundation for the matters stated.  It is not conclusory.  See Hou-Tex, Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (holding summary-judgment affidavit was not conclusory).  The court should not reach the merits of any of the other objections to the Zingalli affidavit because these objections were waived when the Borrower failed to obtain rulings from the trial court at or very near the time the trial court ruled on the motion for summary judgment.  See Dolcefino v. Randolph, 19 S.W.3d 906, 926 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

The Borrower argues that it preserved error with respect to the remaining objections because the trial court necessarily overruled them when it granted the Credit Suisse Parties leave to submit this summary-judgment proof. However, allowing a party to supplement proof in a summary-judgment proceeding does not necessarily imply a ruling as to the admissibility of the proffered evidence.  See, e.g., ABT Galveston Ltd. P=ship v. Galveston Cent. App. Dist., 137 S.W.3d 146, 158 n.26 (Tex. App.CHouston [1st Dist.] 2004, no pet.); Sunshine Mining & Ref. Co. v. Ernst & Young, 114 S.W.3d 48, 51 (Tex. App.CEastland 2003, no pet.); Allen v. Albin, 97 S.W.3d 655, 663 (Tex. App.CWaco 2002, no pet.); In re Estate of Loveless, 64 S.W.3d 564, 573 (Tex. App.CTexarkana 2001, no pet.); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.CSan Antonio 2000, no pet.); Chapman Children=s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 435B36 (Tex. App.CHouston [14th Dist.] 2000, pet. denied); Dolcefino, 19 S.W.3d at 926.  But see Blum v. Julian, 977 S.W.2d 819, 823B24 (Tex. App.CFort Worth 1998, no pet.); Mowbray v. Avery, 76 S.W.3d 663, 689 n.45 (Tex. App.CCorpus Christi 2002, no pet.).  Absent an implied or express ruling on the objections, the objections are waived. The court should not conduct a substantive analysis as to the merits of waived objections.^[4]

B.        The Lender=s Parent did not establish that it fell within the definition of Afinancial institution@ under Section 26.02(a)(1); however, the loan agreement alleged by the Borrower is nevertheless unenforceable under section 26.02(b).

The Borrower asserts that the Lender=s Parent is not entitled to the benefit of section 26.02(b) because the Lender=s Parent is not a Afinancial institution@ under section 26.02(a)(1) of the Texas Business and Commerce Code, which reads: 

(1) AFinancial institution@ means a state or federally chartered bank, savings bank, savings and loan association, or credit union, a holding company, subsidiary, or affiliate of such an institution, or a lender approved by the United States Secretary of Housing and Urban Development for participation in a mortgage insurance program under the National Housing Act (12 U.S.C. Section 1701 et seq.).

Tex. Bus. & Com. Code Ann. ' 26.02(a)(1) (Vernon 2002).

Neither the Lender nor the Lender=s Parent established that either of them was a state or federally chartered bank, savings bank, savings and loan association, or credit union, or a holding company, subsidiary, or affiliate of such an institution.  The summary-judgment proof establishes only that the Lender is a HUD-approved lender as that term is used in section 26.02(a)(1).  The statute does not state that an affiliate of a HUD-approved lender is a Afinancial institution@; rather, to qualify as a Afinancial institution@ under this provision, the Lender=s Parent would need to show that it is (1) a state or federally chartered bank, savings bank, savings and loan association, or credit union, (2) a holding company, subsidiary, or affiliate of such an institution, or (3) a HUD-approved lender.  The Lender=s Parent did not establish any of these things. Therefore, the Lender=s Parent did not demonstrate that it falls within the definition of Afinancial institution@ under section 26.02(a)(1). 

The majority concludes that the Lender=s Parent is entitled to summary judgment because there is allegedly no evidence that any representative of the Borrower thought the loan would be funded by the Lender=s Parent.  It seems clear from the Borrower=s pleadings and summary-judgment response that the Borrower sufficiently alleged a loan agreement involving the Lender=s Parent.  According to the Borrower=s pleadings, representatives of the Borrower conferred with authorized representatives of the Lender=s Parent Awho were in turn authorized to act on behalf of [the Lender] concerning potential financing for the purchase of the building at 1001 McKinney, renovation of the office building, and construction of a parking garage.@  The Lender funded the original loan.  The Borrower alleges that Tony Poll and Mark FinermanCallegedly agents of both the Lender and the Lender=s ParentCmade oral promises to the Borrower in November 1999, to make an additional loan that was to have been funded in early 2000 Apursuant to the same business terms that were made part of the original loan to the [Borrower].@ Essentially, the Borrower alleges the Lender=s Parent was to fund the promised loan through the LenderCits Afunding conduit.@^[5]

Nonetheless, the Lender=s Parent is entitled to summary judgment on the Borrower=s alleged oral contract claim.  The reason, however, is that the purported loan agreementCas alleged by the BorrowerCis not enforceable under section 26.02(b) of the Texas Business and Commerce Code. 

ALoan agreement@ is defined broadly in the statute:

ALoan agreement@ means one or more promises, promissory notes, agreements, undertakings, security agreements, deeds of trust or other documents, or commitments, or any combination of those actions or documents, pursuant to which a financial institution loans or delays repayment of or agrees to loan or delay repayment of money, goods, or another thing of value or to otherwise extend credit or make a financial accommodation.  The term does not include a promise, promissory note, agreement, undertaking, document, or commitment relating to:

(A) a credit card or charge card; or

(B) an open-end account, as that term is defined by Section 301.002, Finance Code, intended or used primarily for personal, family, or household use.

Tex. Bus. & Com. Code Ann. ' 26.02(a)(2) (Vernon 2002).  The summary-judgment proof shows that the Lender=s Parent was not a party to the original Loan Agreement and does not make real estate loans.  The Borrower, however, alleged that the Lender=s Parent Awas engaged in the investment banking business, and as part of that business originated commercial mortgage loans, using [the Lender] as a funding entity for those loans.@ 

Under section 26.02(b), a loan agreement in which the amount involved exceeds $50,000 is not enforceable unless it is in writing and signed by the party to be bound or by that party=s authorized representative.  Notably, the statute does not rest the enforceability determination merely upon whether the agreement was made by a financial institution; rather, the statute renders unenforceable any loan agreement Apursuant to which a financial institution loans . . . money.@  See Tex. Bus. & Com. Code Ann. ' 26.02(a), (b).  Under the Borrower=s pleadings, the alleged agreement by the Lender=s Parent is an agreement pursuant to which the LenderCa financial institution as defined in the statuteCloans money.  Thus, any such loan agreement made by the Lender=s Parent is unenforceable under the plain meaning of section 26.02.  See Tex. Bus. & Com. Code Ann. ' 26.02. 

Although the trial court granted summary judgment in favor of the Lender in part based upon the section 26.02(b) ground, the trial court granted summary judgment in favor of the Lender=s Parent on a ground other than section 26.02(b). The majority bases its determination that summary judgment was proper as to the Lender=s Parent upon section 26.02(b).  However, even though the trial court declined to grant summary judgment in favor of the Lender=s Parent based upon the section 26.02(b) ground, this court can, and in the interest of judicial economy should, affirm the trial court=s summary judgment based upon this ground.  See Cincinnati Life Ins. Co. v. Cates, 927 S.W.3d 623, 625B26 (Tex. 1996) (holding that courts of appeals, in the interest of justice, may consider summary-judgment grounds that the movant presented to the trial court but upon which the trial court did not rule in granting the movant a final summary judgment).   

II.  Common-Law-Fraud Claim

Although the court correctly affirms the trial court=s summary-judgment as to the Borrower=s claims for statutory fraud, negligent misrepresentation, breach of oral contract, and promissory estoppel, the court errs in reversing the trial court=s judgment as to the common-law fraud claim.  The Borrower cannot prevail on its common-law fraud claim because the Borrower cannot show justifiable reliance upon the alleged misrepresentations.

Because one of the essential elements of the Borrower=s common-law fraud claim is that the Borrower justifiably relied upon the alleged misrepresentation by the Credit Suisse Parties, if the Borrower cannot demonstrate this element, it cannot possibly prevail on its fraud claim.  See Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001) (stating that justifiable reliance is an essential element in a common-law fraud claim).  In their motion for summary judgment, the Credit Suisse Parties asserted a no-evidence ground as to this essential element of the Borrower=s common-law fraud claim.  The Borrower failed to come forward with evidence creating a genuine issue of material fact demonstrating justifiable reliance upon the Credit Suisse Parties= alleged oral loan agreement.

The Borrower claims that Poll and Finerman made the alleged oral loan commitment to one of the Borrower=s principals, Herbert L. Levine, during a trip to Las Vegas in November 1999.  The trial court granted summary judgment in favor of the Lender=s Parent on the ground that Athere is no evidence that any actions were taken by an agent or representative of, at the direction of, or on the behalf of [the Lender=s Parent].@  The Lender=s Parent, however, did not expressly present this ground in its motion for summary judgment.  For this reason, the trial court erred in granting summary judgment on this basis.  See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002).  However, in the interest of justice, this court should affirm the summary judgment based upon the no-evidence ground as to the justifiable-reliance element of the common-law-fraud claim.  See Cates, 927 S.W.3d at 625B26 (holding that courts of appeals, in the interest of justice, may consider summary-judgment grounds that the movant presented to the trial court but upon which the trial court did not rule in granting the movant a final summary judgment).

According to the Texas Supreme Court, the defrauded party must actually and justifiably rely upon the alleged fraudulent representation.  Ernst & Young, 51 S.W.3d at 577.  The majority opinion states that A[i]n the context of common-law fraud, courts have uniformly treated the issue of justifiable reliance as a question for the factfinder.@^[6] If there is a genuine issue of material fact as to whether reliance was justifiable in a common-law fraud case, then, of course, the factfinder should determine this issue.  But the issue of whether reliance was justifiable in a common-law fraud case does not always have to be determined by the factfinder and may be determined as a matter of law.  See Little v. Liquid Air Corp., 37 F.3d 1069, 1075B76 (5th Cir. 1994) (stating in per curiam, en banc opinion, that regardless of the type of claim being asserted, trial courts must always grant summary judgment where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant); In re Absolute Res. Corp., 76 F. Supp. 2d 723, 731 (N.D. Tex. 1999) (granting summary judgment as to fraud claim and holding there was no genuine issue of material fact as to whether alleged reliance by plaintiff on alleged oral assurances that loan would be finalized was justifiable); Bennett v. Cochran, No. 14-00-01160-CV, 2004 WL 852298, at *6 (Tex. App.CHouston [14th Dist.] April 22, 2004, no pet.) (holding in memorandum opinion that, as a matter of law, there was no evidence to support the jury=s finding that plaintiff=s reliance was justifiable); Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 226B27 (Tex. App.CHouston [1st Dist.] 2004, pet. denied) (affirming summary judgment as to fraud claim because there was no genuine issue of material fact as to whether the plaintiff=s alleged reliance was justifiable); Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 651B52 (Tex. App.CHouston [14th Dist.] 2003, pet. denied) (holding that there was no evidence to support the jury=s finding that plaintiff=s alleged reliance on lender=s alleged statements was justifiable); Bluebonnet Sav. Bank, F.S.B. v. Grayridge Apartment Homes, Inc., 907 S.W.2d 904, 909 (Tex. App.CHouston [1st Dist.] 1995, writ denied) (holding there was no evidence to support jury=s finding that alleged reliance by borrower on alleged oral assurances by lender that loan restructuring proposal would be accepted was justifiable).

Furthermore, the two cases cited by the majority do not support the proposition that justifiable reliance should always be determined by the factfinder.  See Coston v. Bank of Malvern, 991 F.2d 257, 260 (5th Cir. 1993) (stating, in per curiam, en banc opinion, that courts in common-law fraud cases treat the issue of justifiable reliance as a question for the factfinder that is subject to deferential, rather than de novo review following trial on the merits); Hall v. Harris County Water Control & Imp. Dist. No. 50, 683 S.W.2d 863, 868 (Tex. App.CHouston [14th Dist.] 1984, no writ) (stating that issue of whether reliance was reasonable in a promissory estoppel claim is generally a question of fact). The only explanation given by the majority as to why it concludes there is a genuine issue of material fact regarding the justifiability of the alleged reliance is that the Borrower had a business relationship with the Credit Suisse Parties.  Evidence of a business relationship is not by itself sufficient to raise a genuine issue of material fact as to whether the alleged reliance was justifiable.  See Beal Bank, S.S.B., 124 S.W.3d at 651B52 (holding that there was no evidence to support the jury=s finding that plaintiff=s alleged reliance on lender=s alleged statements was justifiable despite existence of business relationship between parties); Bluebonnet Sav. Bank, F.S.B., 907 S.W.2d at 909 (holding there was no evidence to support jury=s finding that alleged reliance by borrower was justifiable despite existence of business relationship between parties).

Factors used to determine whether reliance was justifiable include the sophistication of the parties and the nature of the transaction.  See Beal Bank, S.S.B., 124 S.W.3d at 651B52; Coastal Bank S.S.B. v. Chase Bank of Texas, N.A., 135 S.W.3d 840, 843 (Tex. App.CHouston [1st Dist.] 2004, no pet.).  The party claiming fraud must exercise ordinary care to protect its interests and is assumed to know all facts that would be discovered by a reasonably prudent person similarly situated.  Wil-Roye Inv. Co. II v. Washington Mut. Bank, F.A., 142 S.W.3d 393, 411 (Tex. App.CEl Paso 2004, no pet.).  In the context of bargaining between sophisticated and adversarial parties, reliance upon a misrepresentation that easily would be refuted with reasonable diligence is not justifiable.  Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 226 (Tex. App.CHouston [1st Dist.] 2004, pet. denied); Coastal Bank S.S.B., 135 S.W.3d at 843.  A party=s failure to exercise care is not excused by mere confidence in the honesty and integrity of the other party.  Coastal Bank, 135 S.W.3d at 843. Subjective beliefs will not make reliance justifiable.  Nor will mere subjective trust transform an arm=s length dealing into a relationship that carries a fiduciary duty.  Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex. 2005).  Likewise, a cordial business relationship of long duration is not evidence of a confidential or fiduciary relationship.  Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 675 (Tex. App.CHouston [1st Dist.] 1996, no writ).  Generally, the relationship between a borrower and a lender is an arm=s length business relationship in which both parties are looking out for their own interests.

This court recently examined the issue of justifiable reliance in a lending relationship in Beal Bank, a case in which the borrower-plaintiff (Schleider) claimed the lender-defendant (Beal Bank) made an oral agreement to extend the payment time on the Borrower=s promissory note despite the original note stating that the loan could only be modified in writing.  124 S.W.3d at 645B46. The borrower had been in business for nearly thirty years and had negotiated several such loans.  Id. at 652.  In rejecting the borrower=s fraud claim, this court concluded that an experienced businessman=s alleged reliance upon an oral representation by a bank employee was not justifiable as a matter of law.  Id.  As support for the Beal Bank decision, this court cited Bluebonnet Savings Bank, a First Court of Appeals decision with a similar fact pattern. The borrower in Bluebonnet similarly alleged he had negotiated orally to restructure a loan despite contrary language in the original loan document.  907 S.W.2d at 909.  The Bluebonnet court held that as an experienced businessman, the borrower should have known not to rely upon these oral representations and therefore his reliance was not justifiable.  Id.  Applying the same rationale, the Borrower=s alleged reliance upon the Credit Suisse Parties= alleged oral agreement to fund a new loan was not justifiable.

At the time in question, the Borrower was a partnership headed by an experienced commercial real estate developer (Levine) and, by any relevant measure, was a very sophisticated business party.  The Borrower had developed a course of dealing with the Lender through a previous, complex, multi-million-dollar loan transaction in which both parties were represented by counsel.  The parties, operating at arm=s length, were adversarial, and thus the Borrower was required to exercise ordinary care in its dealings with the Lender and the Lender=s Parent.^[7] 

The summary-judgment record establishes that Levine was familiar with the practices and procedures generally associated with obtaining a commercial loan.  For example, he understood that any loan commitments were subject to loan-committee approval, adequate due diligence, and proper loan documentation.  More importantly, Levine was familiar with the particular lending practices and procedures employed by the Lender, the Borrower having been through the extensive loan process with the Lender in the recent past in a transaction involving the same property as the alleged oral loan agreement made the subject of the Borrower=s fraud claim.

The parties= previous transaction involving a loan secured by the property was memorialized in an eighty-eight-page, single-spaced Loan Agreement negotiated by the parties= lawyers under circumstances in which each party was looking out for its own interests and operating at arm=s length in an adversarial context.  The Loan Agreement for the original loan was signed only after extensive loan committee procedures required to garner approval for the loan. The transaction was highly structured and extensively documented in a two-volume closing binder consisting of thirty-nine separate documents. The Loan Agreement has a five-page table of contents, more than 225 defined terms, and a dozen pages of covenants required of the Borrower as part of the Lender=s agreement to fund the loan.  According to the Borrower, the loan orally promised in Las Vegas was to be a mirror image of the previous transaction between the parties.

Before the previous loan closed, the Borrower expressly acknowledged that the loan for which it had applied remained contingent upon approval by the Lender=s internal loan committee and the execution and delivery of definitive agreements.  The Loan Agreement contained a provision in which the Borrower expressly acknowledged that Ano officer or administrator of Lender has the power or authority from Lender to make an oral extension or modification or amendment of any [of the Project Loan agreements] on behalf of Lender.@

Moreover, in their prior dealings the parties specifically addressed the importance of memorializing in writing any agreements by which the Borrower would seek to bind the Lender.  In their previous transaction, the parties addressed the need for writings generally, stating in their Loan Agreement:

Borrower recognizes that, in general, borrowers who experience difficulties in honoring their loan obligations, in an effort to inhibit or impede lenders from exercising the rights and remedies available to lenders pursuant to mortgages, notes, loan agreements or other instruments evidencing or affecting loan transactions, frequently present in court the argument, often without merit, that some loan officer or administrator of Lender made an oral modification or made some statement which could be interpreted as an extension or modification or amendment of one or more debt instruments and that the borrower relied to its detriment upon such Aoral modification of the loan document.@  For that reason, and in order to protect Lender from such allegations in connection with the transaction contemplated by this Agreement, Borrower acknowledges that this Agreement, the Mortgage, the Note and the other Loan Documents and all instruments referred to in any of them can be extended, modified or amended only in a writing executed by Lender and Borrower and that none of the rights or benefits of Lender can be waived permanently except in a written document executed by Lender. Borrower further acknowledges Borrower=s understanding that no officer or administrator of Lender has the power or the authority from Lender to make an oral extension or modification or amendment of any such instrument or agreement on behalf of Lender.^[8] 

Thus, as part of their course of dealing, these parties had established through their conduct and interaction a common basis of understanding and a practice of not relying on unwritten promises and agreements in their business relationship.

It is against this backdrop of prior dealings in similar circumstances that we must determine if the Borrower justifiably relied on the Lender=s alleged oral promise to loan additional funds on the same property. Likewise, it is the individual characteristics of this Borrower and its appreciation of the facts and circumstances at the time of the alleged fraud that we must consider in determining if the alleged reliance was justifiable.  See Haralson v. E. F. Hutton Group, Inc., 919 F.2d 1014, 1026 (5th Cir. 1990), overruled on other grounds, Gustafson v. Alloyed Co., 513 U.S. 561, 584, 115 S. Ct. 1061, 1079, 131 L. Ed. 2d 1 (1995).  As a matter of logic, how could the Borrower have justifiably relied on statements that were belied by its own experience?

Just as the individual borrower-plaintiff in Beal Bank was not justified in relying upon the bank=s alleged oral representation that it would grant an extension of an existing loan, the BorrowerCa sophisticated business entity that had agreed not to rely on unwritten promises in a prior transaction with the same party on the same propertyCwas not justified in relying on the alleged unwritten promise of the Credit Suisse Parties that they would lend additional funds.  See Beal Bank, S.S.B., 124 S.W.3d at 651B52. The summary-judgment proof does not raise a genuine issue of material fact as to whether the Borrower justifiably relied on these alleged representations.  See In re Absolute Res. Corp., 76 F. Supp. 2d at 731; Beal Bank, S.S.B., 124 S.W.3d at 651B52; Bluebonnet Sav. Bank, F.S.B., 907 S.W.2d at 908B09.

The Borrower attempts to distinguish Beal Bank, claiming that the additional $6.75 million was not a modification of the original loan but rather an entirely separate loan.  Essentially, the Borrower argues that it had no reason to believe that the requirements of the original multi-million dollar loan would apply to this new multi-million dollar loan even though the Borrower alleges that the loan documentation for the latter was to have been a mirror image of the original loan.  Knowing that a modification of the existing loan could be enforced only if in writing, and knowing from its own recent experience with obtaining a loan secured by this property, from this lender, that approval from a lending committee was required, the Borrower could not have justifiably relied on an alleged promise that a new loan commitment could be created without a writing and without any of the procedures required with the original loan.

Given the prior dealings between the parties and the Borrower=s express, written acknowledgment that no officer of the Lender had the power or authority to make an oral agreement on its behalf, the Borrower could not have justifiably relied on having created an enforceable loan agreement by virtue of oral statements allegedly made during a trip to Las Vegas.  Indeed, to the extent the Borrower relied on the alleged oral statements of the Credit Suisse Parties, that reliance was unreasonable in light of the information apparent to the Borrower.  Under these circumstances, the law may properly say that any loss is the responsibility of the Borrower.  Because the Borrower failed to raise a material issue on an essential element of common-law fraud, the Borrower=s fraud claim necessarily fails.  This court should overrule the Borrower=s challenge to the trial court=s summary judgment on the fraud claim and affirm the judgment of the trial court in all respects.

/s/        Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring and Dissenting Opinions filed November 23, 2005.

Panel consists of Chief Justice Hedges, Justice Frost, and Senior Chief Justice Murphy.^[9]  (Hedges, C.J., majority.)

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^[1]  These termsCABorrower@ and ALender@Care the same terms used to define these parties in the Loan Agreement, dated as of June 16, 1998, in which the Lender agreed to lend the Borrower $39,195,000.

^[2]  Credit Suisse First Boston LLC is the successor by merger to Credit Suisse First Boston Corporation.

^[3]  See Hou-Tex., Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex. App.CHouston [14th Dist.]  2000, no pet.) (holding objection that affidavit is conclusory is a substantive defect that can be raised for the first time on appeal).

^[4]  For this reason, there is no need to address whether the majority=s substantive analysis is correct.

^[5]  In the trial court, both of the Credit Suisse Parties moved for summary judgment as to the Borrower=s breach-of-oral-contract claim based on the statute of frauds contained in section 26.02(b). At the time of this motion, the Borrower alleged in its second amended petition that both of the Credit Suisse Parties made these alleged promises in November of 1999, and were liable to the Borrower for breach of an alleged oral contract.  After the trial court denied this motion for summary judgment but before the trial court reconsidered its decision and granted this motion, the Borrower amended its petition.  In this third amended petition, the Borrower added some new allegations and focused more attention on the Lender=s Parent; however, the essential facts and allegations are not substantially different from the prior petition.  The third amended petition does not add any new claims, and in it, the Borrower continues to assert a breach-of-oral-contract claim against both the Lender and the Lender=s Parent. Therefore, the section 26.02(b) summary-judgment ground is sufficiently broad to cover the breach-of-oral-contract claims asserted against the Lender and the Lender=s Parent in the Borrower=s third amended petition.  See Wilson v. Korthauer, 21 S.W.3d 573, 579 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (holding that, if the summary-judgment grounds are sufficiently broad to encompass the claims contained in an amended pleading filed after the motion, then movants need not amend their motion for summary judgment to address this amendment).

^[6]  Majority Op., page 12.

^[7]  The Borrower suggests that evidence of a longstanding business relationship might establish that its reliance was justifiable. However, the Texas Supreme Court has stated that mere subjective trust does not transform arm=s length dealing into fiduciary duty.  Meyer, 167 S.W.3d at 331; see also Farah, 927 S.W.2d at 675 (holding that a Acordial@ business relationship of Along duration@ is not evidence of a confidential or fiduciary relationship).

^[8]  Emphasis added.

^[9]  Senior Chief Justice Paul C. Murphy sitting by assignment.