Chale Garza Investments, Inc. and Marcelino Mares v. Berkeley Federal Bank & Trust, FSB f/k/a First Federal Savings Bank (of Delaware), Clay Cornett, Brown & Shapiro, L.L.P., Barrett Burke Wilson Castle Daffin & Frappier, L.L.P., Alberto Alarcon and Hall, Quintanilla & Alarcon, L.C.--Appeal from 111th Judicial District Court of Webb County

Appellants

v.

BERKELEY FEDERAL BANK & TRUST, FSB f/k/a First Federal Savings Bank (of Delaware), Clay Cornett, Brown & Shapiro, L.L.P., Barrett Burke Wilson Castle Daffin & Frappier, L.L.P., Alberto Alarcon and Hall, Quintanilla & Alarcon, L.C.,

Appellees

From the 111th Judicial District Court, Webb County, Texas

Trial Court No. 95-CVQ-00552-D2

Honorable Antonio G. Cantu, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Phil Hardberger, Chief Justice

Paul W. Green, Justice

Karen Angelini, Justice

Delivered and Filed: January 24, 2001

AFFIRMED

After their foreclosure sale purchase of a condominium was declared void, Appellants brought suit against the foreclosure seller, its attorneys, and the condominium's former owners and their attorneys. The trial court granted summary judgments on Appellants' DTPA, fraud, and conspiracy claims, and the jury found against Appellants on the conversion claim. Appellants appeal the summary judgments and jury verdict in five points of error.

Factual Background

On March 1, 1994, Appellants bought a condominium from Berkeley Federal Bank & Trust (Berkeley Federal) at a foreclosure sale for $15,000.00 cash. After the Appellants' purchase, the condominium's former owners (the Madarias) filed suit against Berkeley Federal and Appellants to set aside Appellants' foreclosure sale purchase. During the challenge to the foreclosure sale, Appellee Alberto Alarcon represented the Madarias and Appellee Clay Cornett represented Berkeley Federal. Following an agreement between Berkeley Federal and the Madarias, the trial court granted summary judgment in favor of the Madarias on the ground the foreclosure sale was barred by the applicable statute of limitations. Appellants appealed the setting aside of the foreclosure sale, and we upheld the summary judgment. Chale Garza Inv., Inc. v. Madaria, 931 S.W.2d 597, 600 (Tex. App. - San Antonio 1996, writ denied).

On May 16, 1995, Appellants brought suit in the 111th District Court against Appellees under the theories of DTPA violations, common law and statutory fraud, civil conspiracy, and conversion. The trial court granted two summary judgments, eliminating all Appellants' claims except conversion. After a jury trial on Appellants' conversion claim, the jury returned a verdict of no conversion. Conversion

In their first point of error, Appellants challenge the jury's negative finding on the issue of conversion of their purchase money. Appellants argue they proved conversion as a matter of law and consequently, request we reverse and render judgment in their favor. When an appellant attacks the legal sufficiency of an adverse answer to a finding on which it had the burden of proof, we perform a two prong review. Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 940 (Tex. 1991); Hartmann v. Solbrig, 12 S.W.3d 587, 595 (Tex. App. - San Antonio 2000, pet. denied). First, we examine the record for evidence supporting the finding while disregarding all evidence to the contrary. Victoria Bank & Trust Co., 811 S.W.2d at 940. Second, only if there is no evidence supporting the jury finding, we review the entire record to determine if the contrary proposition is established as a matter of law. Id.

To prevail on a conversion claim, a Texas plaintiff must prove: (1) he owned or was legally entitled to the property; (2) the defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner to the exclusion of and inconsistent with the plaintiff's rights; and (3) the defendant refused the plaintiff's demand for the return of the property. Longaker v. Evans, No. 4-97-1046-CV, 2000 WL 1726691, at *6 (Tex. App. - San Antonio Nov. 22, 2000, no pet. h.) (citing Ojeda v. Wal-Mart Stores, Inc., 956 S.W.2d 704, 707 (Tex. App. - San Antonio 1997, writ denied)).

At trial, Appellees introduced evidence regarding their repeated attempts to return the money to Appellants and Appellants' refusal to accept the funds. Alarcon testified Berkeley Federal, on numerous occasions, attempted to return to Appellants the $15,000.00 paid for the condominium. Appellant Garza corroborated Alarcon's testimony by stating he was offered and refused to accept the $15,000.00 in 1995 after the foreclosure was set aside. After Appellants consistently refused to accept the money, Berkeley Federal deposited the money into the court registry. After its deposit, Appellants had the right to withdraw it at any time. Because we hold there is evidence to support the jury finding, we do not reach the second prong of the review. Victoria Bank & Trust Co., 811 S.W.2d at 940. We overrule Appellants' first point of error.

Summary Judgment

In their second and third points of error, Appellants challenge the summary judgments on their DTPA, fraud, and conspiracy claims. We review summary judgments de novo. Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App. - San Antonio 1997, writ denied). When a party moves for summary judgment on no-evidence grounds, the trial court must grant the motion unless the nonmovant produces evidence raising a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i); Akin v. Santa Clara Land Co., 4-99-629-CV, 2000 WL 1752755, at *4 (Tex. App. - San Antonio Nov. 30, 2000, no pet. h.) (citing Tex. R. Civ. P. 166a(i)). When a party moves for a traditional summary judgment, the trial court must grant the motion if the movant negates one element of the plaintiff's cause of action or establishes an affirmative defense as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Mgmt Co., 690 S.W.2d 546, 548-49 (Tex.1985). In deciding whether there are fact issues precluding summary judgment, we take evidence favorable to Appellants as true, indulge every reasonable inference in favor of Appellants, and resolve all doubts in Appellants' favor. Id.

When, as in this case, the judgment omits the grounds for summary judgment, we affirm on any meritorious theory advanced in Appellees' motions. State Farm Fire & Cas. Co. v. S. S., 858 S.W.2d 374, 380 (Tex. 1993). If an appellant fails to challenge each independent ground for summary judgment asserted by the movant, we affirm the summary judgment. Smith v. Tilton, 3 S.W.3d 77, 83 (Tex. App. - Dallas 1999, no pet. h.); San Antonio Press, Inc. v. Custom Bilt Machinery, Inc., 852 S.W.2d 64, 65 (Tex. App. - San Antonio 1993, no writ).

In this case, Appellees moved for summary judgment on Appellants' DTPA, fraud, and conspiracy claims on the grounds of legal insufficiency, res judicata, collateral estoppel, and statute of limitations. On appeal, Appellants challenge only the ground of legal insufficiency, arguing they raised a fact issue on each element of their claims. They bring no argument challenging the other independent grounds for summary judgment raised in Appellees' motions. As such, we must affirm the summary judgment on Appellants' DTPA, fraud, and conspiracy claims. See Smith, 3 S.W.3d at 84.

Trial Court Rulings

In their fourth and fifth points of error, Appellants argue the trial court abused its discretion in various pretrial and trial rulings. Specifically, Appellants complain the trial court's summary judgments deprived them of a trial by jury, and Appellants complain the trial court abused its discretion in refusing to allow them to amend their petition. The rulings complained of are reversible only upon the showing of a clear abuse of discretion. State Bar of Texas v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994); McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992). The test for abuse of discretion is whether the trial court acted arbitrarily or unreasonably, or without reference to any guiding rules or principles. Kilpatrick, 874 S.W.2d at 658.

Under Texas Rules of Civil Procedure 63 and 66, a trial court may refuse an amendment if: 1) the opposing party presents evidence of surprise or prejudice; or 2) the amendment asserts a new cause of action or defense and, thus, is prejudicial on its face, and the opposing party objects to the amendment. Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990) (citing Tex. R. Civ. P. 63, 66). The burden of showing prejudice or surprise rests on the party resisting the amendment. Id.

This case was governed by a Rule 166 scheduling order, setting a deadline for the amendment of pleadings. On April 16, 1999, twelve days before the trial date, but sixty-eight days after the pleading deadline, Appellants moved to amend their petition to add the claim of breach of contract. Appellants' amendment would have added a new cause of action two months past the pleading deadline and after the close of discovery. Berkeley Federal objected to the pleading amendment and argued it was unfairly prejudiced and surprised by the motion. Upon a review for abuse of discretion, we hold the trial court's rulings were not arbitrary and capricious, and as such, we overrule Appellants' fourth and fifth points of error.Conclusion

Because we overrule each of Appellants' points of error, we affirm the summary judgment of the trial court.

PAUL W. GREEN

JUSTICE

DO NOT PUBLISH