Opinion filed January 13, 2022

In The

Eleventh Court of Appeals __________

No. 11-20-00047-CV

__________

ROY CALLAWAY, Appellant

V.

ROBERT LEE STATE BANK, Appellee

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CV46686

M E M O R A N D U M O P I N I O N

This appeal arises from a dispute about the sale of a drilling rig. The case 

involves a claim that a bank holding a security interest in the drilling rig committed 

a conversion or conspired with others to defeat the plaintiff’s alleged ownership 

interest in the rig.

Appellant, Roy Callaway, sued multiple parties under conversion and civil 

conspiracy theories. One of these parties was Robert Lee State Bank (the Bank), the 
2

appellee in this case. The Bank filed a no-evidence motion for summary judgment

(the Motion). In response to the Motion, Appellant failed to raise a genuine issue of 

material fact by responding with evidence demonstrating any alleged conversion, by 

the Bank. The trial court granted the Motion, and this appeal followed. Appellant 

raises fourteen issues on appeal. In the first and second issues, he alleges that the 

trial court erred in granting the no-evidence motion for summary judgment with 

respect to the conversion and civil conspiracy claims. In the remaining issues, 

Appellant alleges errors in the exclusion of evidence and globally asserts that those 

errors were harmful. We affirm. 

Factual and Procedural History

A. Purchase and Repair of Used Drilling Rig

Appellant had an agreement with Latigo Pipe and Equipment (Latigo), which 

was owned by Tommy Parr (Tommy), to repair a drilling rig for either future sale or 

use. Latigo purchased the drilling rig, and the rig became part of Latigo’s pledged

collateral on a loan from the Bank. 

B. Agreed Ownership of Rig

Appellant and Tommy signed an agreement on September 30, 2005, which 

contained all pertinent details about the purchase and ownership of the drilling rig—

along with 3,000 feet of drilling pipe and a mud pump.

1 Per the agreement, Latigo 

would own the drilling rig until all investments and expenses for the rig were paid. 

Following the payment of all expenses, the listed equipment would belong to Latigo 

and Appellant as equal partners (50% each). The equipment was to be stored in 

Appellant’s yard, and Appellant was to make all necessary repairs. Latigo would 

hold title to the equipment until such time when all expenses were recouped by both 

parties. Appellant and Tommy also agreed that no mechanics liens would be filed. 

1

The drilling pipe and mud pump are not at issue in the appeal.
3

Finally, the agreement laid out the terms of how expenses, repairs, and profits would 

be divided, should Appellant and Tommy, on behalf of Latigo, agree to work the 

equipment.2

 Tommy’s wife, Sharilyn Parr (Sharilyn), served as a witness to this 

agreement. Tommy, Sharilyn, and Appellant are all listed as being involved in the 

company known as Wild West Drilling (WWD), a company they formed to work 

the rig. All three are similarly listed as signatories on the WWD account they opened

at the Bank on March 28, 2006. 

C. Negotiation for Purchase of Rig

At some point following the signing of this agreement and the opening of the 

bank account, Appellant and Tommy began to work the rig. They did so until 

Tommy’s death on June 10, 2006. In the four months following his death, several 

events occurred. Sharilyn, along with Tommy’s son Auston, visited Appellant and 

discussed the possibility of selling the drilling rig to Appellant. Appellant was 

interested in purchasing the rig and continuing to use it for work. Sharilyn 

represented to Appellant that the Bank had given a loan to Latigo and had called the 

note, making the entire balance due. Part of the agreement was that the Bank would 

have a lien on equipment that Latigo had in its possession, should the company be 

unable to repay the loan. Later, Sharilyn told Auston that the Bank had not called 

the note and that she merely wanted to sell the equipment. The Bank confirmed that,

in July 2006, it had not called the note and that the loan term was not set to end until 

September 2006. The Bank discovered that Sharilyn had misled Appellant and

indicated that Appellant made several phone calls to the Bank between July 15 and 

August 11, 2006, in an effort to stop Sharilyn from selling the drilling rig. 

2

In the agreement signed on September 30, 2005, working the equipment is clarified as drilling a 

well.
4

D. Sale of Rig and Payoff of Bank Note

Appellant was aware that the loan had not been paid off and that Latigo had 

title to the rig: he offered to pay off the loan in exchange for the rig, and when he 

attempted to reclaim the rig, it was represented by both Sharilyn and the Midland 

County Sheriff that the rig had a lien on it. Appellant’s attorney sent a letter to the 

Bank on August 11, 2006, outlining his complaints, and the Bank’s attorney 

responded on August 15, 2006, requesting Appellant’s attorney to direct all future 

communications to him as the Bank’s attorney. Following this exchange, Sharilyn 

sold the drilling rig and other equipment to CrossTex Services, L.L.C. (CrossTex), 

represented by Mark Burkett (Burkett). Using these funds, and funds transferred 

from a WWD bank account, Sharilyn paid off the money owed by Latigo to the 

Bank. 

The Bank released the lien it had on Latigo’s equipment, including the drilling 

rig, and there is no evidence that the Bank questioned Sharilyn as to where she 

received the funds to settle the loan. Sharilyn had no discussion with anyone at the 

Bank with respect to the source of the funds or any details concerning the sale of the 

rig. 

Appellant brought a civil suit against the Bank, Sharilyn, Latigo, Burkett, and 

CrossTex.

3

 This appeal follows a hearing on October 25, 2019, regarding a noevidence motion for summary judgment filed by the Bank.

4

 The motion was 

confined to Appellant’s claims against the Bank. The pivotal appellate issue around 

3

Originally, Appellant also named Rita Pannell and Blue Ridge Resources, Inc. as defendants. Rita 

Pannell, listed as vice president/secretary of Latigo, is only briefly named as having allegedly helped 

Sharilyn. Blue Ridge Resources is a company belonging to Burkett, but it was quickly discovered that 

CrossTex was the company named on the bill of sale and that Blue Ridge Resources does not appear to 

have played a role in the events that brought about the lawsuit.

4

At the time of the hearing on the motion for summary judgment, the case had been pending in the 

trial court for thirteen years. 
5

which his other issues revolve is whether a genuine issue of material fact regarding 

conversion by the Bank was raised by Appellant. Following the order granting the 

motion in favor of the Bank, Appellant settled with the remaining parties, including 

Sharilyn. 

Standard of Review

We review the trial court’s grant of summary judgment de novo. Lujan v. 

Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018) (citing Provident Life & Accident Ins. 

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). However, a trial court’s decision 

to exclude or admit summary judgment evidence is reviewed for an abuse of 

discretion. Id. at 84–85 (citing Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 

678 (Tex. 2017)). When the trial court’s order does not specify the grounds for its 

summary judgment, we will affirm it if any of the theories are meritorious. Knott, 

128 S.W.3d at 216. If an appellant fails to challenge all grounds on which the 

summary judgment may have been granted, the appellate court must uphold the 

summary judgment. Heritage Gulf Coast Props., Ltd. v. Sandalwood Apartments, 

Inc., 416 S.W.3d 642, 653 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

Under the Texas Rules of Civil Procedure, a no-evidence motion for summary 

judgment is required to “state the elements as to which there is no evidence.” 

TEX. R. CIV. P. 166a(i). The nonmovant has the entire burden to produce evidence 

raising a genuine issue of material fact once the movant files a no-evidence motion.

TEX. R. CIV. P. 166a(i); see Town of Dish v. Atmos Energy Corp., 519 S.W.3d 605, 

608 (Tex. 2017) (summary judgment was proper when the nonmovant did not 

respond to no-evidence motion). 

For a no-evidence motion for summary judgment, the standard of review is 

identical to the standard used in reviewing a directed verdict. Amwins Specialty 

Auto, Inc. v. Cabral, 582 S.W.3d 602, 607 (Tex. App.—Eastland 2019, no pet.) 
6

(citing Merriam v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)); see also

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750−51 (Tex. 2003). “A no 

evidence point will be sustained when (a) there is a complete absence of evidence of 

a vital fact, (b) the court is barred by the rules of law or evidence from giving weight 

to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a 

vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes 

the opposite of the vital fact.” King Ranch, Inc., 118 S.W.3d at 751 (quoting Merrell 

Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). 

The burden is on the nonmovant to raise a genuine issue of material fact about 

the elements challenged in the no-evidence motion for summary judgment. TEX. R.

CIV. P. 166a(i); First United Pentecostal Church v. Parker, 514 S.W.3d 214, 220 

(Tex. 2017). A fact is “material” only if it affects the outcome of the suit under the 

governing law; a material fact issue is “genuine” only if the evidence is such that a 

reasonable jury could find the fact in favor of the nonmovant. Rayon v. Energy 

Specialties, Inc., 121 S.W.3d 7, 11–12 (Tex. App.—Fort Worth 2002, no pet.). The 

nonmovant must produce more than a scintilla of evidence to raise a genuine issue 

of material fact on the challenged elements. First United Pentecostal Church, 514 

S.W.3d at 220. A nonmovant produces more than a scintilla of evidence when the 

evidence rises to a level that would enable reasonable and fair-minded people to 

differ in their conclusions. Ford Motor Co. v. Ridgeway, 135 S.W.3d 598, 601 (Tex. 

2004). A nonmovant produces no more than a scintilla of evidence when the 

evidence is “so weak as to do no more than create a mere surmise or suspicion of a 

fact.” Forbes, Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003)

(quoting King Ranch, Inc., 118 S.W.3d at 751). We consider the evidence “in the 

light most favorable to the non-movant, disregarding all contrary evidence and 
7

inferences.” King Ranch, Inc., 118 S.W.3d at 751 (citing Merrell Dow Pharm., Inc., 

953 S.W.2d at 711). 

Analysis

We will discuss Appellant’s fourteen issues in the broad context of his three 

primary allegations: conversion, civil conspiracy, and evidentiary challenges.5

 

A. Evidentiary Challenges 

In Issues 3 through 14, Appellant complains of the trial court’s rulings on the 

Bank’s objections to Appellant’s summary judgment evidence. We address these 

issues first because potentially they define the evidence to be considered when ruling 

on all other Appellant issues. At the outset, we note that an appellate brief “must 

contain clear and concise argument for the contentions made, with appropriate 

citations to authorities and to the record.” TEX.R. APP. P. 38.1(i). Rule 38.1 requires 

both citation to authority and substantive analysis in regard to an issue, and failure 

to provide either constitutes a waiver of the issue on appeal. Alvarez v. State, 2021 

WL 3923250, at *2 (Tex. App.—Eastland Sept. 2, 2021, no pet.) (mem. op., not 

designated for publication); see also Castille v. Service Datsun, Inc., 2017 WL 

3910918, at *13 (Tex. App.—Houston [1st Dist.] Sept. 7, 2017, no pet.) (mem. op.) 

(finding that appellants waived their jury instruction complaint for failure to provide 

clear argument or authority in their brief); Huml v. Mitrisin, 473 S.W.3d 821, 824 

(Tex. App.—El Paso 2015, no pet.) (affirming trial court on grounds that pro se 

appellant failed to cite legal authority or to provide substantive analysis of the legal 

5

In the case under review, Appellant has alleged no facts and presented no summary judgment 

evidence establishing or tending to establish that any special or confidential relationship existed between 

Appellant and the Bank. As a general rule, in an ordinary banking relationship, no special or fiduciary 

relationship has been created. See, e.g., Thigpen v. Locke, 363 S.W.2d 247, 253 (Tex. 1962); Strobach v. 

WesTex Cmty. Credit Union, 621 S.W.3d 856, 873 (Tex. App.—El Paso 2021, pet. denied); Mfrs. Hanover 

Tr. Co. v. Kingston Inv’rs Corp., 819 S.W.2d 607, 610 (Tex. App.—Houston [1st Dist.] 1991, no writ); 

Victoria Bank & Tr. Co. v. Brady, 779 S.W.2d 893, 902 (Tex. App.—Corpus Christi–Edinburg 1989), aff’d 

in part, rev’d in part on other grounds, 811 S.W.2d 931 (Tex. 1991). 
8

issues presented, resulting in waiver of the complaint); Washington v. Bank of New 

York, 362 S.W.3d 853, 854–55 (Tex. App.—Dallas 2012, no pet.) (finding that pro 

se appellant waived issue on appeal by inadequately briefing it). Even if we assume 

that Appellant is correct in his assertion that the trial court erred in excluding the 

evidentiary items challenged in Appellant’s Issues 3 through13, as further discussed 

below, without evidence of conversion by the Bank, it would not affect our 

disposition of this appeal. 

In our review of Appellant’s documents, tendered and excluded by the trial 

court and complained of in Appellant’s Issues 3 through 13, while they may 

implicate other parties, we observe that they provide no evidence on the linchpin 

issue of the Bank’s alleged conversion.6

6

In Appellant’s Issues 3 through 7, he complains of exclusion by the trial court of his affidavit. 

Appellant argues (twice) within his brief that the affidavit “merely explained that a hazy or confusing 

situation” existed and that Appellant was requesting “that things be worked out” before any sale occurred. 

This is not evidence of the Bank’s involvement in the sale or of the Bank’s conversion of property subject 

to the sale. While Appellant attempts to establish, through the affidavit, some notice to the Bank of 

Appellant’s dispute with Sharilyn, Appellant provides no case law that a duty on the Bank was created 

thereby, nor does the affidavit create a fact question by providing some evidence of conversion on the part 

of the Bank.

In Appellant’s Issue 8, he complains that the temporary injunction transcript was not admitted. The 

trial court itself was an integral part of the temporary injunction hearing, and how the transcript provides 

evidence on the pivotal issue of the Bank’s participation in conversion is not briefed, nor was it explained 

to the trial court to preserve the argument.

In Appellant’s Issue 9, he complains that the letter from his attorney to the Bank was not admitted. 

The letter provides hearsay information and was not offered on any limited basis stated by Appellant. 

Furthermore, other than some notice to the Bank of Appellant’s dispute with Sharilyn, Appellant provides 

no evidence or case law of any duty on the part of the Bank, nor does the letter provide evidence of the 

Bank’s conversion.

In Appellant’s Issue 10, he complains that the original title certificate for the truck on which the rig 

was mounted was not admitted. This document provides no evidence of the Bank’s participation in a 

conversion.
9

Appellant inadequately addresses the relevancy, provides no cases in support, 

and ignores an examination of alleged harms that he claims he suffered by the 

exclusion of his proffered summary judgment evidence. Importantly, Appellant is 

also unable to show that the excluded evidence would have established a nexus 

demonstrating that the Bank was guilty either of conversion, or without same, a civil 

conspiracy with Sharilyn to convert property. Mere receipt of money in repayment 

of an arm’s length loan transaction is not evidence of an intentional tort like 

conversion, nor is it evidence of a conspiracy. See Eckman v. Centennial Sav. Bank, 

757 S.W.2d 392, 398 (Tex. App.—Dallas 1988, writ denied); see also Immobiliere 

In Appellant’s Issue 11, he complains that sixty pages of bank records obtained through discovery 

were not admitted and that they provide some indication of conversion by Sharilyn of WWD receivables 

wired to Latigo’s account. Appellant provides no case law establishing any duty on the part of the Bank,

nor did the records provide evidence of conversion on the part of the Bank.

 

In Appellant’s Issue 12, he complains that his summary of checking account records of WWD was 

not admitted under Rule 1006 of the Texas Rules of Evidence. The law gives wide discretion to the trial 

court in determining whether the records were so voluminous as to require a summary and whether the 

summary was helpful or necessary to the trier of fact in order to expedite a trial. The trial court decided 

matters of law and fact in this matter. Rule 1006 is a rule of convenience. The trial court within its 

discretion determines whether the summary was helpful to it and, since the records themselves were 

available and admitted, we cannot find an abuse of discretion on the part of the trial court in not admitting 

Appellant’s summary. Further Appellant provides no case law in support of his position that the exclusion 

of the summary under these circumstances was an abuse of discretion.

In Appellant’s Issue 13, he complains that the trial court erred in sustaining a motion to strike those 

records that were not admitted. Records and exhibits not admitted should be stricken from review by the 

trier of fact and from consideration by the trial court in legal determinations. Pulte Homes of Texas, L.P. v. 

Texas Tealstone Resale, L.P., No. 02-16-00029-CV, 2017 WL 1738023 (Tex. App.—Fort Worth May 4,

2017, no pet.) (per curiam mem. op.). Appellant provides no case law in support of his argument that the 

trial court should not strike records/exhibits that were not admitted.

In Appellant’s Issue 14, he globally complains of harm as a result of the trial court failing to admit 

those documents listed in Issues 3 through 13. Because we do not find any relevance to the documents 

tendered, and because they provide no evidence of conversion on the part of the Bank, we find no error by 

the trial court in excluding same. It is, therefore, unnecessary for this court to proceed into a discussion of 

and a review of harm resulting from the trial court’s rulings thereon.
10

Jeuness Establissement v. Amegy Bank Nat’l Ass’n, 525 S.W.3d 875, 881–82 (Tex. 

App.—Houston [14th Dist.] 2017, no pet.). Notwithstanding that Issues 3 through 

14 were inadequately briefed, because the excluded documents did not contain 

evidence of conversion, without which there is no conspiracy—elements on which

we uphold the no-evidence summary judgment—this court need not reach the 

question of whether the trial court abused its discretion in sustaining the Bank’s 

objections to Appellant’s proposed evidence. 

B. Conversion – No Evidence of Element of Dominion and Control by Bank

1. Generally

In his second issue on appeal, Appellant contends that the trial court erred in 

granting summary judgment with respect to Appellant’s claim of conversion. The 

Bank alleged in the Motion that there was no evidence to support the following 

element of Appellant’s conversion claim: that the Bank exercised dominion or 

control of the drilling rig. The Bank also asserted that, without such proof, no 

damages could be assessed against the Bank. Importantly, the Bank points out that 

Appellant made no response to the Bank’s no-evidence motion as to the element of

damages.7

 

Appellant contends that there were two separate acts of conversion by the 

Bank in which the Bank exercised dominion or control over Appellant’s property: 

(1) the Bank received funds from the sale of the drilling rig and the truck to which it 

was mounted, and it applied those funds to the Latigo loan debt on the rig, and (2) the 

Bank transferred funds from WWD’s account to Latigo’s account, despite 

Appellant’s claim that he did not authorize such transfers.

7

Although this alone might be sufficient for the trial court to grant the Motion, we proceed with the 

discussion surrounding the element of dominion and control over personal property.
11

Regarding Appellant’s claim of conversion of the rig, truck, and equipment, 

conversion occurs when a person or entity makes “an unauthorized, wrongful 

assumption and exercises dominion and control over the personal property of 

another to the exclusion of or inconsistent with the owner’s rights.” Paschal v. Great

W. Drilling, Ltd., 215 S.W.3d 437, 456 (Tex. App.—Eastland 2006, pet. denied) 

(citing Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444, 447 (Tex. 1971)). 8

2. No conversion in the transfer of funds between accounts

Concerning Appellant’s complaint about a transfer of funds from the WWD 

account to the Latigo account, summary judgment for the Bank was proper. An 

allegation for the conversion of money arises only where the money can be 

“identified as a specific chattel, meaning it is ‘(1) delivered for safe keeping; 

(2) intended to be kept segregated; (3) substantially in the form in which it is 

received or an intact fund; and (4) not the subject of a title claim by the keeper.’” 

Lawyers Title Co., 424 S.W.3d at 718 (quoting Entm’t Merch. Tech., L.L.C. v. 

Houchin, 720 F. Supp. 2d 792, 799 (N.D. Tex. 2010)). 

Here, Appellant produced no evidence of a standing directive to the Bank to 

keep accounts or certain funds in the accounts separated; no evidence that the funds

were identified as, for, or from a specific chattel; and no evidence that the money 

constituted an intact fund. The accounts in question were common business 

checking and operating type accounts. Regarding funds transferred from a WWD 

account to a Latigo account, Appellant also failed to present evidence to show that 

8

To establish a claim for conversion, the plaintiff must prove: 

(1) the plaintiff owned or had possession of the property or entitlement to possession; 

(2) the defendant unlawfully and without authorization assumed and exercised [dominion 

or] control over the property to the exclusion of, or inconsistent with, the plaintiff’s rights 

as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused 

to return the property. 

Lawyers Title Co. v. J.G. Cooper Dev., Inc., 424 S.W.3d 713, 718 (Tex. App.—Dallas 2014, pet. denied).

The plaintiff also has a duty to establish that he was injured by the conversion. Id. 
12

the Bank unlawfully and without authorization assumed and exercised control over 

the property to the exclusion of, or inconsistent with, the plaintiff’s (Appellant’s) 

rights as an owner. According to documents submitted as part of the clerk’s record, 

Sharilyn was a signatory on the bank account for WWD. There is no evidence to 

indicate that Sharilyn’s access to the account had been revoked, nor is there any 

evidence to support that the Bank refused to allow Appellant access to his property. 

Under the circumstances, the Bank has taken no action regarding the account monies 

that could be construed as conversion. See Eckman, 757 S.W.2d at 398 (claim of 

conversion by payment of money that is not an intact fund nor identified as a specific 

chattel fails as a matter of law).

3. The contested element of dominion and control

In response to the Bank’s no-evidence motion for summary judgment, 

Appellant failed to produce material evidence of the Bank’s “dominion or control” 

exercised over the drilling rig and equipment, a required element of Appellant’s 

conversion claim. The Bank’s motion required that Appellant produce in response, 

more than a scintilla of evidence that dominion or control was exercised by the Bank. 

The only “action” by the Bank was taking a security interest in personal property, of 

which Latigo was at least half owner, and then properly releasing the security interest 

once the lien was paid off. “We agree . . . that the mere taking and recording of a 

security interest upon personal property even though from someone who is not the 

true owner does not constitute conversion, when the party taking the security interest 

never exercises ownership or control other than the filing of the security interest.” 

Prewitt v. Branham, 643 S.W.2d 122, 123 (Tex. 1982). Under the facts of the case

before us, the Bank may have taken or recorded a security interest, but no evidence 

demonstrates an act of exercising ownership or control of the rig.
13

This is not a matter where material evidence demonstrates that the Bank 

foreclosed on personal property to satisfy an outstanding loan. In fact, the Bank had 

never called the loan nor accelerated the debt. Rather, Sharilyn allegedly satisfied a 

Latigo loan debt incurred for the benefit of the partnership by a transfer of monies 

from the partnership account and/or the sale of the contested rig and equipment. This 

transaction occurred in 2006, and summary judgment for the Bank was granted in 

2019. In the extended time available for investigation, Appellant developed no 

material evidence of conversion by the Bank and, in response to the no-evidence 

motion for summary judgment, tendered no material evidence of acts of conversion 

of the partnership equipment by the Bank about which Appellant here complains. 

4. Acts of conversion by Sharilyn, not the Bank

With respect to conversion, the petition alleged, and the evidence presented 

by the parties shows, that Sharilyn was the only actor. Sharilyn withdrew funds from 

an account on which she was an authorized signatory to transfer them to another 

authorized account. Sharilyn then paid off the Latigo loan on the rig and associated 

equipment—allegedly with funds from that account, which required the Bank to 

release the equipment as loan collateral, having no further claim on it. Sharilyn sold 

the equipment to an unrelated third party. While Appellant sued Sharilyn, he has 

since settled with her but has maintained his conversion and conspiracy claims 

against the Bank. The Bank, however, “had neither possession nor the right to 

possession [of the rig and equipment], but by virtue of [apparently] unperfected liens 

had only a right to obtain satisfaction of the debt owed to them.” Crutcher v. Cont’l 

Nat’l Bank, 884 S.W.2d 884, 889 (Tex. App.—El Paso 1994, writ denied). 

Therefore, Appellant has “no cause of action against the Bank for conversion.” Id.
14

5. Appellant’s evidence in response to no-evidence motion

Regarding the sale of the drilling rig, Appellant presents no evidence to show 

the required element that the Bank unlawfully and without authorization assumed 

and exercised control over the property to the exclusion of, or inconsistent with, the 

plaintiff’s (Appellant’s) rights as an owner. There is no evidence that the Bank ever 

had possession of the drilling rig or that the Bank made the sale of the drilling rig to 

CrossTex. While there is possible evidence that would indicate Sharilyn both 

exercised control of the rig (by calling the Sheriff’s department) and excluded 

Appellant’s rights as an owner (by selling the truck mounted drilling rig),

9 Sharilyn 

is not the Bank in this case. Further, none of the excluded evidence supports this 

element of conversion. 

a. Appellant’s pleadings contradict dominion and control by the 

Bank

The record contains no evidence to support the second element of Appellant’s 

conversion claim: the exercise of dominion and control over property belonging to 

Appellant. In Appellant’s response to the Bank’s no-evidence motion for summary 

judgment, he claims that the Bank acted with Sharilyn to illegally sell the drilling

rig which Appellant held title to, that the Bank knew Appellant had title to that 

property, and that the Bank used the funds from that sale to satisfy Latigo’s loan 

obligations. Appellant indicates that the sale itself is evidence that the Bank

exercised dominion or control over the drilling rig. This claim is contrary to the live 

pleadings of Appellant in his third amended petition (the Petition). See Eckman, 757 

S.W.2d at 398 (claim not pled in the trial court fails on appeal as a matter of law). 

In the Petition, Appellant conceded that Sharilyn had authority to withdraw funds 

from the WWD account at the Bank and that she was meant to withdraw these funds 

9

Appellant had title to the truck to which the rig was mounted.
15

to pay Latigo’s bank note. There is no evidence to indicate that the Bank was privy 

to the discussion of repayment, nor is there evidence that Sharilyn’s authority to 

withdraw funds from the WWD account had been revoked at the time that the 

transaction occurred. In the Petition, Appellant also alleges that Sharilyn, not the 

Bank, sold and illegally exercised dominion and control of WWD assets (the drilling 

rig) without authority. 

b. Appellant’s exhibits do not support Bank dominion and control

Appellant points to three exhibits in support of his assertion that the Bank 

illegally exercised dominion and control over Appellant’s property: Appellant’s 

sworn affidavit (Exhibit No. 2), letters between Appellant’s and Appellee’s attorneys 

(Exhibit No. 4), and the application for and title to a white, 1974 Road Boss truck 

(Exhibit No. 8). Appellant points to no specific part of these exhibits to support the 

claim that the Bank had dominion or control over Appellant’s property, nor do any 

of the exhibits support this assertion. 

Appellant’s affidavit – In his affidavit, Appellant indicated that the Bank had

failed to provide bank statements to Appellant (but he did not provide a nexus as to 

how that alleged fact is the proximate cause of his harm), that Appellant’s attorney 

sent a letter to the Bank, and that Appellant called the Bank and spoke with someone 

who allegedly told Appellant that “the bank would do whatever it needed to do to 

recover its monies.” Though Appellant states that he told a bank employee, with 

unknown authority, that Sharilyn had lied to him to get the drilling rig, this would 

only support an inference that Sharilyn, not the Bank, had control or dominion over 

the rig. See Eckman, 757 S.W.2d at 398 (legal and factual conclusions about acts or 

omissions of the bank and its agents made in an affidavit were insufficient to raise a 

fact issue as to a claim of conspiracy).
16

Attorney letters – The first of the letters between attorneys was sent by 

Appellant’s counsel to the Bank on August 11, 2006. The letter includes allegations 

that Sharilyn had not followed through on promises made to Appellant, but nothing 

to indicate that the Bank had contributed to or supported Sharilyn’s actions. Aside 

from Appellant’s last allegation that the Bank had called the note and had a right to 

the equipment, there is no evidence that the Bank did in fact have dominion or 

control over the drilling rig.

10 The Bank’s attorney responded on August 15, 2006, 

to inform Appellant’s counsel that all communication regarding these matters should 

thereafter be directed to him, and he invited further communication. 

The truck title – Exhibit No. 8, which is the title to the truck, does not 

demonstrate that the Bank had ever seen this document at the time of the dispute, 

nor does it show that the Bank exercised control over the rig or the truck on which 

it was mounted. The documents are solely related to the title for the truck, not the 

rig itself, and as such do not match any claims that the rig was removed from 

Appellant’s ownership illegally. The legal title to the truck falls short of ownership 

of the rig and, importantly, does not provide evidence that the Bank exercised any 

sort of dominion or control over either the truck or the drilling rig.

Appellant failed to present any evidence to support his claim that the Bank 

exercised any control over the drilling rig—illegally or otherwise. Without such 

evidentiary support, Appellant failed to carry his burden to produce evidence as to 

the contested element of conversion, without which, summary judgment granted by 

the trial court was proper. We overrule Appellant’s second issue.

10The attorney letter for Appellant dated August 11, 2006, informs the Bank of Appellant’s dispute with 

Sharilyn, acknowledges a loan from the Bank to be repaid in order for the drilling rig to “be owned free and clear,” 

and concludes that there exists “a very hazy and uncertain situation with respect to the legal status of the drilling rig.”

The letter merely requests contact with the Bank to “attempt to resolve this matter” without which litigation might 

follow. It does not claim that the Bank loan has been repaid, purport to direct the Bank in any way or to withdraw any 

authorization of Sharilyn on any accounts, nor does it purport to prohibit the use of any funds, from any source, to pay 

off the Latigo loan.
17

C. Civil Conspiracy – a Derivative Tort

In his first issue, Appellant asserts that the trial court erred when it granted the 

no-evidence motion for summary judgment with respect to Appellant’s claim of civil 

conspiracy against the Bank. The Texas Supreme Court has repeatedly called civil 

conspiracy a “derivative tort,” meaning that it depends on an underlying tort or 

illegal act. Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d 136, 140–41 

(Tex. 2019). This means that the civil conspiracy is connected to the underlying tort 

and survives or fails alongside it. Id. at 141. It is not the agreement itself that gives 

rise to the cause of action, but the “injury to the plaintiff resulting from [another] act 

done pursuant to the common purpose.” Id. (alteration in original) (quoting 

Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex. 1979)). “Civil 

conspiracy depends entirely on the injury caused by the underlying tort; the injury is 

the damage from the underlying wrong, not the conspiracy itself.” Id. In Massey v. 

Armco Steel Co., the five elements of conspiracy were defined as: “(1) two or more 

persons; (2) an object to be accomplished; (3) a meeting of minds on the object or 

course of action; (4) one or more unlawful, overt acts; and (5) damages as the 

proximate result.” 652 S.W.2d 932, 934 (Tex. 1983). Both before and after Massey, 

conspiracy decisions emphasized that the damages come from the underlying 

wrongful act, and it is improper to read these elements to mean that the litigated 

damages must only be proximately caused by the conspiracy itself. Agar, 580 

S.W.3d at 141. 

There are two reasons why we must uphold the trial court’s no-evidence 

summary judgment as to Appellant’s claim that the Bank was part of a civil 

conspiracy: (1) Appellant’s judicial admission and (2) no evidence of an underlying 

tort. In Appellant’s first amended response to the no-evidence motion for summary 

judgment (the Response), Appellant admitted that the Bank could not have been 
18

engaged in a conspiracy, as the Bank did not have knowledge of the purpose of the 

conspiracy.11 In the Response, Appellant focused primarily on the alleged acts taken 

by Sharilyn, rather than the Bank. Even if this statement were not considered, 

Appellant failed to present summary judgment evidence that the Bank was, first, 

guilty of the underlying tort of conversion or that the Bank in any way colluded or 

shared a course of action with Sharilyn. 

None of the evidence that was excluded would have shown that such collusion 

is applicable here. In large part, Appellant relies on the letter sent from his attorney 

to the Bank as evidence of the Bank’s knowledge of and part in a conspiracy. 

Appellant’s reliance thereon is misplaced. See First United Pentecostal Church, 514 

S.W.3d at 224 (“But even where a conspiracy is established, [any] wrongful acts by 

one member of the conspiracy that occurred before [an agreement is made] do not 

simply carry forward, tack on to the conspiracy, and support liability for each 

member of the conspiracy as to the prior acts. . . . [T]he actions agreed to by the 

conspirators must cause the damages claimed.” (emphasis added) (citation omitted)).

Evidence of the Bank’s alleged shared object and purpose with Sharilyn must be 

shown to have existed prior to her affirmative acts in order for the Bank to have 

conspired with her in those actions. Appellant asserts that the Bank was on notice

of Sharilyn’s bad acts as a result of the letter that was sent from his attorney to the 

Bank—and that the Bank’s lack of action following the letter is a type of consent 

that subjects the Bank to liability for civil conspiracy.

12 We disagree. The letter was 

sent in August 2006, and the record shows that in June and July of 2006, Sharilyn 

removed funds from the WWD account, lied to Appellant about the Bank note being 

11“Robert Lee State Bank did not have knowledge of a Purpose [sic] of conspiracy, therefore it 

could not have been engaged in a conspiracy.”

12See footnote 10, supra. 
19

called, and informed the sheriff that the drilling rig had a lien on it preventing 

removal thereof. These events having occurred prior to the notice letter of August 

2006, may not then be attributed to the Bank for the purpose of such a conspiracy. 

Further, there is no evidence to indicate that at any point the Bank knowingly assisted 

Sharilyn in tortious acts or that there was some sort of conspiratory agreement in 

place before—or after—the attorney’s letter in August 2006. There is nothing in the 

record evidencing that the Bank contributed to the harm alleged by Appellant. 

Accordingly, we overrule Appellant’s first issue.

This Court’s Ruling

We affirm the judgment of the trial court. 

W. BRUCE WILLIAMS

JUSTICE

January 13, 2022

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.