United States Court of Appeals,

Fifth Circuit.

Nos. 89–2866, 89–2983.

Ted G. WALKER and James D. Brunson, Plaintiffs–Appellants,

v.

FEDERAL DEPOSIT INSURANCE CORPORATION, Etc., et al. Defendants–Appellees.

Ted G. WALKER, et al., Plaintiffs–Appellants,

v.

MAINLAND SAVINGS ASSOCIATION, Defendant, the Federal Deposit Insurance

Corporation, As Manager of the FSLIC Resolution Fund, As Successor to the Federal Savings and

L oan Insurance Corporati on, As Receiver for Mainland Savings Association, et a l.,

Defendants–Appellees.

Sept. 2, 1992.

Appeals from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, BROWN and JOHNSON, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

In this swelter of mul

t i-co urt lawsuits, removal, remand, re-removal, settlement and a

long-awaited en banc decision, arising out of an atypical land transaction in which the lender allegedly

fraudulently failed to make a loan as promised, these interrelated issues emerge: 1) whether the FDIC

is a proper party which could remove; 2) whether the district court acquired jurisdict ion after the

FDIC removed the case from the state appellate court; 3) whether FIRREA applies to cases pending

on the date of its enactment; 4) whether the FDIC's voluntary dismissal from the case bars federal

jurisdiction; and 5) the merits (or demerits) of the claims against the lender's officers and agents, Hill

and Bearden. The district court entertained jurisdiction and granted summary judgment in favor of

the FDIC and the officers. First, due to the settlement of all claims invo lving the FDIC, we dismiss

the FDIC from the case; second, we reverse the summary judgment in favor of Defendant Bearden

on Walker/Brunson's fraud claim; and third, we affirm the summary judgment in favor of Defendants

as to Walker/Brunson's fraud claim against Hill, and with respect to Walker/Brunson's conspiracy and

deceptive trade practice claims.In a Nutshell

Real estate developers Ted Walker and James Brunson (Walker/Brun son) brought suit in

Texas state court against the Mainland Savings Association (Mainland) and two of its directors for

Mainland's failure to provide a multi-million dollar loan to the developers in connection wit h

Walker/Brunson's sale of a nine-story office building to Mainland. Two connected suits followed,

and t hese were consolidated in state court. After Mainland was declared insolvent, the Federal

Savings and Loan Insurance Corporati on (FSLIC) was appointed receiver. The FSLIC removed the

case to federal district court and the court remanded back to state court, where summary judgment

was granted by the Texas trial court in favor of all the defendants. The case was then appealed to the

Texas court of appeals by the losing plaint iffs. The Federal Deposit Insurance Corporation (FDIC)

succeeded the FSLIC a s receiver and the case was again removed to federal district court, which

subseque nt ly adopted the state court's orders. Walker/Brunson brought this appeal. We deferred

action on this appeal to await the outcom e in In re Meyerland Co., 960 F.2d 512 (5th Cir. May 1992)

(en banc). While the en banc court's decision in M eyerland was pe nding, the FDIC and

Walker/Brunson settled their dispute.

In Detail—The Loose Foundation

The events giving rise to this appeal center around the 1983 sale of the International Energy

Center and surrounding property (IEC Building) to Mainland. Appellants Walker/Brunson allege that

in October, 1982, they contacted Ron Bearden, a Mainland officer and director, offering to sell the

IEC Building to Mainland. Months of negotiations followed, during which the parties discussed a

mult i-millio

n dollar project development loan to Walker/Brunson. Walker/Brunson contend that this

loan was t o constitute substantial consideration for the sale of the IEC Building. It is undisputed,

however, that no written loan agreement was ever signed by the parties.

Despite the fact that a loan agreement was not reached, the negotiations cul minat ed in the

tax-free exchange of the Building and property on August 8, 1983. According to Walker/Brunson,the transaction was drafted by appellee Raymond Hill, Mainland's attorney and an officer and director

of the institution at the time. Walker/Brunson received $1 million cash in exchange for the title to

the IEC Building and surrounding property

. Walker/Brunson also executed a Warranty Deed with

Vendor's Lien to Mainland in which they acknow ledged receiving "cash ... in hand paid" as

consideration for the sale.

In January, 1985, Walker/Brunson filed suit in state district court, Harris County (Houston),

Texas, against Mainland and Hill and Bearden, Mainland's officers, for fraud and breach of contract

in co nnection with the IEC Building sale. On March 25 of that year, Mainland sued separately in

Harris Count y district court to collect on a note (the "Braeburn Hollow Note") executed by

Walker/Brunson and Mainland. One week later, on April 2, 1985, Walker/Brunson filed yet another

lawsuit in the Harris County district court seeking to enjoin Mainland from foreclosing on real estate

collateral securing the Braeburn Hollow Note. Citing the probability of Walker/Brunson's success

on the merits of that suit, the court granted a temporary injunction against the foreclosure on May

7, 1985. In July, 1985, these three cases were consolidated in the 190th Judicial District Court,

Harris County.

In April 1986, Mainland was declared insolvent, and the Federal Home Loan Bank Board

(FHLBB) appointed the Federal Savings and Loan Insurance Corporati on (FSLIC) as receiver for

the failed institution. The FSLIC then intervened in this case and removed it from the state district

court to federal district court. On November 17, 1986, the district court remanded the entire action

back to state court, reasoning in its Order that the case involved only stat e claims. Then, on

December 15, 1987, the FSLIC filed a notice of voluntary dismissal without prejudice in state court

with respect to its collection claim. Walker/Brunson's action against the FSLIC on the failed loan and

the order enjoining the federal agency from foreclosing on the Braeburn Hollow security remained

in the consolidated suit in the 190th Judicial District Court.1 Walker/Brunson do not appeal the portion of the Final Summary Judgment order in favor of

MMB–1 to this Court.

2 FIRREA § 401(a)(1), (f)(2), 12 U.S.C.A. § 1437 note (West 1989). On J uly 26, 1989, that court granted the FSLIC's motion for summary judgment on

Walker/Brunson's fraud/breach of contract claims in connection with the transfer of the IEC Building

and dissolved the temporary injunction against the FSLIC, allowing the agency to go ahead with

foreclosure proceedings ag ainst Walker/Brunson on the Braeburn Hollow Note. The court also

granted summary judgment motions br o ught by t he individual defendants Hill and Bearden, and

intervenor MMB–1, Ltd. 1 Walker/Brunson appealed the court's orders to the state court of appeals.

On August 9, 1989, the Federal Institutions Reform, Recovery and Enforcement Act of 1989

(FIRREA) took effect abolish ing t he FSLIC and establishing the Federal Deposit Insurance

Corporati on (FDIC) as the successor to the interests of the FSLIC. 2 On August 29, 1989, the FDIC

removed Walker/Brunson's state appeal of the summary judgment orders in favor of the FSLIC/FDIC

and the other defendants t o the U.S. Distri ct Court for the Southern Di stri ct of Texas, Houston

Division, under FIRREA § 209[4] (12 U.S.C. § 1819(b)(2)(B)). On September 1, Walker/Brunson

obtained a temporary restraining order in the 234th Judicial District Court of Texas, Harris County,

enjoining the FDIC from foreclosing on the collateral for the Braeburn Hollow Note. The same day,

the federal district court vacated the state court injunction against the FDIC and adopted the 190th

Judicial District Court's summary judgment denial of Walker/Brunson's frau d /breach of contract

claims against the FSLIC/FDIC and the individual defendants.

Walker/Brunson then timely appealed to this court. On September 5, 1989, the FDIC

fore clo sed on the Braeburn Hollow property. After hearing oral arguments from all parties, we

deferred decision in this case pending the outcom e of In re Meyerland Co. (en banc). While awaiting

final decision in that case, on July 2, 1991, the FDIC and Brunson/Walker informed this Court that

t hey had settled all claims between them by filing a Joint Motion to Partially Dismiss Claims. We3 In conjunction with this opinion, we have filed a separate order dismissing all remaining

claims against the FDIC.

4 Specifically, FIRREA, § 209[4] (12 U.S.C. § 1819(b)(2)), provides: reserved action on this motion pending Meyerland's outcom e. In May, 1992, the en banc court issued

its opinion and we then requested the parties to file supplemental briefs in response to Meyerland.

We now grant the parties' joint motion to dismiss and order that all claims invo lving the FDIC

be dismissed. 3 The remaining issue left in this lawsuit involves Brunson/Walker's claim against the

officer Defendants. After first resolving at length some jurisdictional questions, we address on the

merits the sole issue of whether the district court erred in adopting the state court's grant of summary

judgment in favor of the officers.

How We Have Jurisdiction

Brunson/Walker urge o n appeal that removal was improper and thus federal jurisdiction

lacking. We briefly repeat the important procedural events in this appeal relevant to jurisdiction: (1)

the state court's July 26, 1989 order granting summary judgment for the FDIC and other defendants,

and simultaneous order dissolving the May 7, 1985, temporary injunction against the FSLIC's planned

foreclosure on collateral securing the Braeburn Hollow Note; (2) Walker/Brunson's appeal to the

state appellate court; (3) the FDIC's August 29, 1989 removal of Walker/Brunson's state appeal of

the summary judgment orders in favor of the FSLIC/FDIC and the individual defendants to federal

district court; (4) the federal district court's assertion of removal jurisdiction over the proceeding and

subsequent adoption of the state court's orders; and (5) the FDIC's dismissal from this lawsuit.

FIRREA and Removal, In General

FIRREA plainly indicates that where the FDIC is a party, federal question jurisdiction exists

and removal by the FDIC is proper, except with respect to certain state law claims where the FDIC

is appointed receiver exclusively by state authorities. 4 The exception 5 does not apply here, since the(2) Federal court jurisdiction

(A) In general

Except as provided in subparagraph (D), all suits of a civil nature at

common law or in equity to which the [FDIC], in any capacity, is a party shall be

deemed to arise under the laws of the United States.

(B) Removal

Except as provided in subparagraph (D), the [FDIC] may ... remove any

such action, suit, or proceeding from a state court to the appropriate United States

district court.

5 The exception, subparagraph (D), 12 U.S.C. § 1819(b)(2), provides in relevant part:

(D) State actions

Except as provided in subparagraph (E), any action—

(i) to which the Corporation, in the Corporation's capacity as receiver of a

State insured depository institution by the exclusive appointment by State

authorities, is a party other than a plaintiff;

(ii) which involves only the preclosing rights against the State insured

depository institution, or obligations owing to, depositors, creditors, or

stockholders by the State insured depository institution; and

(iii) in which only the interpretation of the law of such State is necessary,

shall be deemed to arise under the laws of the United States.

(E) Rule of construction

Subparagraph (D) shall not be construed as limiting the right of the

Corporation to invoke the jurisdiction of any United States district court in any

action described in such subparagraph if the institution of which the Corporation

has been appointed receiver could have invoked the jurisdiction of such court.

(Emphasis added.) FDIC/FSLIC was appointed by a federal authority, the FHLBB.

FIRREA Gives the Job to the FDIC

Walker/Brunson first question whether the FDIC was ever a proper party to this lawsuit.

They contend tha t t he FDIC did not become a party either by operation of FIRREA or by

appointment under that statute, resulting in improper removal. We reject this contention and hold6 FIRREA § 401(a) (12 U.S.C.A. § 1437 note).

7 The FDIC is the only potential successor, since: (1) the OTS is given authority over savings

associations in regular operation on August 9, 1989, under 12 U.S.C. § 1463(a)(1), and may not

involve itself in matters handled by the FDIC, 12 U.S.C. § 1462a(e)(2)(A); (2) the FHFB deals

only with the Federal Home Loan Banks and has no powers with regard to savings associations

receiverships, 12 U.S.C. § 1422a(a); and (3) FIRREA appointed the RTC successor to the

FSLIC as conservator or receiver for a failed institution only "for which the Federal Savings and

Loan Insurance Corporation was appointed conservator or receiver during the period beginning

on January 1, 1989, and ending August 9, 1989," 12 U.S.C. § 1441a(b)(6).

8 See 12 U.S.C.A. § 1437 note; FDIC v. Gillard, 740 F.Supp. 427, 428 (N.D.Tex.1990). that F I RREA automatically installed the FDIC as the successor to the FSLIC as receiver for

Mainland.

B y enact ing FIRREA, Congress dissolved the FSLIC and removed it as receiver of failed

savings institutions. 6 Congress made certain that these institutions remained in federal hands,

however, providing in § 401(h) t hat all receivership orders in effect on August 9, 1989, are

enforceable by the (i) Office of Thrift Supervision (OTS), (ii) FDIC, (iii) Federal Housing Finance

Board (FHFB), or (iv) Resolution T rust Corporation (RTC), "as the case may be." Three out of

these four entities which could possibly succeed the FSLIC as receiver for Mainland are eliminated,

as Mainland does not fit within any of these entities' powers. 7 Thus, the remaining entity, the FDIC,

is the proper successor to the FSLIC here just by process of elimination.

Clearly, the FDIC is the proper successor to the FSLIC here also by virtue of Congress' clear

intent in § 401(f)(2). Section 401(f)(2) of the Act evidenced Congress' intent that pre-FIRREA

receiverships not be abolished by providing that the abolition of the FSLIC does not abate lawsuits

filed by or against the FSLIC "except that the appropriate successor to the interests of the [FSLIC]

shall be substituted ... as a party to any such action or proceeding." 8

To find otherwise would leave all pre–1989 receiverships, formerly the responsibility of the

FSLIC, totally adrift without a successor-receiver. As we have stated before, "we find no indicationin the statute that Congress intended to abolish all pre-FIRREA receiverships." F DIC v. Claycomb,

945 F.2d 853, 858 (5th Cir.1991). We hold that the FDIC is the proper successor to the FSLIC as

receiver for Mainland, and is a proper party to this action.

Meyerland: Removal from State Appellate Court

Assuming the FDIC is a proper party, the problem, says Walker/Brunson, lies in the fact that

the FDIC removed the case while it was pending in state appellate court. It is true that FIRREA does

not specifically address whether the FDIC is authorized to remove a proceeding while it is pending

in state appellate court. However, we are now fortunately guided by this Court's recent binding en

banc decision in Meyerland. Based on Meyerland, we hold that removal was proper.

Meyerla nd

's procedural history is nearly identical to that of this case. In M eyerland the

FDIC, succes so r to the FSLIC as receiver of a failed savings institution, removed to the federal

district court a state action invo lving the FSLIC–Receiver which was pending on appeal in the state

appellate court. The federal district court remanded and awarded sanctions to the appellees. The en

banc Court entertained the FDIC's ap peal of the rem and order pursuant to 12 U.S.C. §

1819(b)(2)(C), and reversed, holding that Congress meant to authorize the FDIC to remove a state

court appellate proceeding under FIRREA § 209. Walker/Brunson fail to convince us that M eyerland

is somehow distinguishable and should not apply here.

FDIC Allowed to Catch Its Breath

Walker/Brunson also contend t hat removal jurisdiction is lacking because the FDIC

unreasonably delayed removal until after they had perfected their appeal to the state appellate court

in order to deliberately prejudice them. With regard to Walker/Brunson's claim of deliberate

prejudice, the FDIC removed the case on August 29, 1989, just 20 days after FIRREA was enacted.

We do not consider 20 days an unreasonable delay given that suit was first filed nearly four and9 Compare Meyerland, a case with nearly identical procedural facts, in which the FDIC did not

remove until September 7, 1989, nine days after removing this case and nearly 30 days after

FIRREA was enacted. Meyerland, 960 F.2d at 514.

10 In Meyerland, 960 F.2d at 515, we emphasized that the power yielded by FIRREA to

remove and thus invoke federal jurisdiction is substantial, citing FDIC v. Griffin, 935 F.2d 691,

696 (5th Cir.1991), for the proposition that federal jurisdiction continues even when the FDIC has

been voluntarily dismissed as a party. one-half years ago. 9 Even assuming that the delay was unreasonable, Walker/Brunson fail to explain

how it prejudiced them, other than to point to the inconvenience of preparation for appeal in the state

system, or how a prejudice of this sort requires reversal.

FIRREA Applies to Pending Cases

Walker/Brunson suggest in their motions to remand that federal jurisdiction does not exist

under FIRREA since it was enacted after this lawsuit was filed. This argument is merit less. We

recently reaffirmed that § 1819 ap plies t o cases pending before its enactment: "Although the

FIRREA was enacted after the current proceeding was initiated, it is clear that the FDIC may utilize

it." M eyerland, 960 F.2d at 514 n. 2. S ee also FSLIC v. Mackie, 949 F.2d 818, 821 (5th Cir.1992);

FSLIC v. Griffin, 935 F.2d 691, 695 (5th Cir.1991); Sunbelt Savings, FSB v. Bent Trail Phase IV

Joint Venture, 907 F.2d 1569, 1571 (5th Cir.1990); T riland Holdings & Co. v. Sunbelt Serv. Corp.,

884 F.2d 205, 207 (5th Cir.1989).

FDIC's Exit Fails to Oust Court of Jurisdiction

Finally, assuming federal jurisdiction existed in the first place, Walker/Brunson broadly assert

that the FDIC's dismissal from this appeal strips this court of its jurisdiction. To the contrary, as this

court recently recognized in Meyerland, 10 federal jurisd ict io n persists even though the FDIC is

subsequently dismissed.

In FSLIC v. Griffin, 935 F.2d 691, 696 (5th Cir.1991), the FSLIC as receiver entered into

a purchase and assumption agreement with First Gibraltar, assigning all assets and secured liabilit ies.11 Tex.Bus. & Comm.Code Ann. § 17.41, et seq. (Vernon 1987).

A fter the case was removed, First Gibraltar intervened and the district court dismissed al l

counterclaims against the FDIC, which had succeeded the FSLIC as receiver. Concluding that federal

jurisdiction remained intact, this court reasoned:

The power to remove is evaluated at the time of removal. The dismissal of one of the parties

by the time of the appeal does not affect the propriety of removal. Congress enacted FIRREA

to correct any possible jurisdictional defects existing at the t ime o f removal; the fact that

neither the FSLIC or FDIC is a party at the time of appeal cannot defeat this intent.

Id. at 696.

Likewise, we retain jurisdiction of this appeal even though we have dismissed all claims

involving the FDIC.

The Merits

This brings us to a review of the federal district court's grant of summary judgment in favor

of the FDIC and individual Defendants Hill and Bearden. Because all claims by and against the FDIC

were dismissed at the outset of this opinion, we consider only the summary judgments awarded in

favor of Hill and Bearden.

Walker/Brunson charged that Hill and Bearden were liable for violations of the Deceptive

Trade Practices–Consumer Protecti on Act (DTPA) 11 and for fraud, conspiracy, and est oppel

.

Specifically, Walker/Brunson asserted that Hill and Bearden promised, but never delivered on, a $21

millio n loan from Mainland t o be advanced contemporaneous with the transfer of title to the IEC

Building. Both Hill and Bearden moved for summary judgment on the basis that Texas law does not

hold persons acting within the scope of their employment personally liable, which the district court

granted. Based o n o ur independent review of the summary judgment evidence, we reverse the

summary judgment with respect to Walker/Brunson's fraud claim against Bearden and remand for a12

Meyerland, 960 F.2d at 520. See also id. (a case removed from state court simply comes

into the federal system in the same condition in which it left the state system) (citing Granny

Goose Foods v. Brotherhood of Teamsters & Auto Truck Drivers, 415 U.S. 423, 436, 94 S.Ct.

1113, 1122, 39 L.Ed.2d 435, 449 (1974)); In re Savers Federal Savings and Loan Ass'n, 872

F.2d 963, 966 (11th Cir.1989) (holding in FIRREA case that federal courts must "treat everything

that occurred in the state court as if it had taken place" in federal court).

13 See Granny Goose Foods, 415 U.S. at 437, 94 S.Ct. at 1123, 39 L.Ed.2d at 449 (" ... once a

case has been removed to federal court, it is settled that federal rather than state law governs the

future course of proceedings"); Nissho–Iw ai American Corp. v. Kline, 845 F.2d 1300, 1303 (5th

Cir.1988) (a prior state court order in essence is federalized when the action is removed to federal

court).

14 See Impossible Electronics Techniques v. Wackenhut Protective Servs., 669 F.2d 1026, 1030

(5th Cir. Unit B 1982). trial on the merits, and affirm the summary judgment in all other respects.

Propriety of District Court's Blanket Adoption

Following this case's removal from state appellate court, the district court adopted the state

district court's order without first requesting written or oral argument. In M eyerland, we found that

a district court acquiring jurisdiction after t he entry of final state court judgment may "take the

judgment as it finds it, prepare the record as required for appeal, and forward the case to a federal

appellate court for review." 12 There we likened the case to situations where federal appellate courts

regularly remand cases to district courts with instructions to take a prescribed action, such as enter

judgment for a specified party. I d. Based on our reasoning in M eyerland, the di strict court was

permitted to simply adopt the state court's orders without further argument by the parties.

Standard of Review

The standard of review is the same as if the federal court itself had entered t he o rder. In

effect, we look through the federal district judge's eyes at the state court's just ificat ions for these

orders. Federal rather than state procedural law applies since federal law cont ro ls t he course of

proceedings fro m the point of removal. 1 3 We review the summary judgment award de novo, 1 4

independently of the state or federal district court, and resolving all reasonable doubts and drawing

all reasonable inferences in favor of the party opposing summary judgment. F DIC v. Hamilton, 939F.2d 1225, 1227 (5th Cir.1991); R eid v. State Farm Mut. Auto Ins. Co., 784 F.2d 577, 578 (5th

Cir.1986).

Summary judgment is proper where there is no genuine issue as to any material fact and the

moving party is entitled to judgmen t as a matter of law. F.R.Civ.P. 56(c). The pleadings,

depositions, admissions, and answers to i nterrogatori es, together with affidavits, must demonstrate

that no genuine issue of material fact remains. C elotex Cor p. v. Catrett, 477 U.S. 317, 106 S.Ct.

2548, 91 L.Ed.2d 265 (1986). If the record taken as a whole could not lead a rational trier of fact

to find for the nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

Claims Against Hill and Bearden Individually

Defendants Hill and Bearden primarily argue that the district court correctly granted summary

judgment in their favor on the basis that they cannot be held personally liable in Texas as long as they

did not perform any acts or make any representations outside the scope of their employment.

To the contrary, the Texa s Supreme Court has held that in a claim under the DTPA, an

individu al co rporate agent may be held liable for oral or written misrepresentations made by him.

Weitzel v. Barnes, 691 S.W.2d 598, 601 (Tex.1985). An officer is individually liable for any tortious

conduct that he committed in connection with his corporate duties. Leyendecker & Assoc., Inc. v.

Wechter, 683 S.W.2d 369, 375 (Tex.1984). If a corporate officer knowingly participates in a tortious

act, there is no need to pierce the corporate veil in order to impose personal liabi lity. G rierson v.

Parker Energy Partners 1984–I, 737 S.W.2d 375, 377–78 (Tex.App.—Houston [14th Dist.] 1987,

no writ). Thus, Texas law makes clear that both Walker and Bearden may be held individually liable

for deceptive or fraudulent r epresent ations they made despite their acting within their corporate

authority.Walker/Brunson alleged DTPA violations as well as fraud, conspiracy and estoppel. Hill and

Bearden produced competent summary judgment evidence supporting their position that they made

no false representations. To defeat Defendants' summary judgment motion, Walker/Brunson were

required to produce evidence sufficient to create a genuine fac t issue as to each of the elements

essential to their case.

(i) Fraud and Conspiracy

The elements of actionable fraud are (1) that a material representation was made; (2) that

it was false; (3) that, when the speaker made it, he knew it was false or made it recklessly without

any knowledge of its truth and a pos i tive assertion; (4) that he made it with the intention that it

should be acted upon by the party; (5) that the party acted in reliance upon it; and (6) that he thereby

suffered injury. Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex.1983). Since intent to defraud is

not susceptible to direct proof, it invariably must be proven by circumstantial evidence. Moreover,

intent is a fact question uniquely w it hin t he realm of the trier of fact. M aulding v. Niemeyer, 241

S.W.2d 733, 738 (Tex.Civ.App.—El Paso 1951). A party can base a claim of actionable fraud on

a promise of future performance with a present intention not to perform. D odson v. Sizenbach, 663

S.W.2d 13, 15 (Tex.App.—Houston [14th Dist.] 1983, no writ).

Although Defendants submitte d summary judgment evidence alleging that they made no

material misrepresentations, Walker/Brunson countered this evidence with proof sufficient to create

a genuine issue of fact as to each of the elements necessary to prove fraud. Walker submitted sworn

affidavits testifying that Bearden personally represented to Walker/Brunson that they would receive,

among numerous other things, a loan for building a 238–room Homotel in exchange for title to the

IEC building and property

. The testimony revealed that almost all of the negotiations were performed

directly with Bearden. The affidavits also stated that prior to the closing, Bearden knew t hat

Mainland had no intention of funding the loan, yet failed to disclose this fact at the closing, and thus

induced Walker/Brunson to convey ti t le t o t heir building based on this misrepresentation, causing15 Walker/Brunson also claim that Hill is estopped from claiming that he did not misrepresent

the loan proposal, styling this claim as an affirmative cause of action. Estoppel is not a cause of

action under Texas law, but is a defensive weapon meant to preserve existing rights. See Sessions

v. Whitcolm, 329 S.W.2d 470, 475 (Tex.Civ.App.1959, writ ref'd n.r.e.) (estoppel is a protective

and not an offensive weapon or cause of action). Thus, we do not recognize Walker/Brunson's

assertion of estoppel as an affirmative claim. them damage. This is further supported by a letter from Walker to Mainland, making clear

Walker/Brunson's expectations and demands which were to culminate in a written agreement at the

closing. Resolving all reasonable doubts and drawing all reasonable inferences in favor of

Walker/Brunson, we conclude that a fact issue remains as to whether Bearden is liable for fraud.

As to Defendant Hill, however, the summary judgment evidence failed to demonstrate how

or when Hill made any representations, and instead Walker/Brunson draw mere conclusions, with no

basis in fact, that Hill "conceptualized" the transaction. Although the summary judgment evidence

did indeed show that Hill was surprised that the transaction had not closed so oner, and that Hi l l

responded "I'll take care of it" when Walker expressed his need for the loan money, this is not enough

to negate Defendant Hill's summary judgment proof. Thus, we affirm the summary judgment on the

fraud claim against Hill.

Similarly, with respect to their conspiracy claims, Walker/Brunson arrive at the conclusion

that Hill conspired with Bearden based so lely o n the fact that Hill was present at the closing,

supervised the funding of money and drafted the agreement confirming their land transfer transaction.

This is insufficient evidence to defeat Defendant's summary judgment on the conspiracy claim.

Moreover, our holding that Walker/Brunson failed to demonstrate a fact issue on their fraud claim

against Hill is lethal to Walker/Brunson's conspiracy claim, since proof of an illegal purpose or means

is essential to an action for conspiracy. 15

(ii) DTPA

This brings us to the DTPA claims against Hill and Bearden. To avoid summary judgment,16 Id. But see Security Bank v. Dalton, 803 S.W.2d 443 (Tex.App.—Fort Worth 1991, writ

denied). In Dalton, the court of appeals qualified plaintiffs as consumers under the DTPA

because they sought loans for the specific purpose of erecting a funeral home building, inventory

and other equipment.

The Texas courts of appeal are obviously split on this issue. Because Riverside

has yet to be expressly overruled, we believe the court of appeals in Houston has taken the

wisest and most logical course. Walker/Brunson first were required to produce summary judgment evidence showing that they were

consumers seeking or acq uiring "by purchase or lease, any goods or services." Tex.Bus. &

Com.Code Ann. § 17.45(4) (Vernon 1987). Defendants claim that summary judgment was proper

on the DTPA claim because Walker/Brunson are not consumers within the meaning of the DTPA as

a matter of law, reasoning that they did not seek or acquire goods or services by purchase or lease.

A pure loan transaction lies outside the DTPA based on the logic that money is neither a good

nor service. S ee Riverside Nat'l Bank v. Lewis, 603 S.W.2d 169 (Tex.1980). Since 1980, however,

Texas law has undergone considerable departure from this facially simple statement. In Flenniken

v. Longview Bank & Trust Co., 661 S.W.2d 705 (Tex.1983), the con s umer sought financing for a

house. Without overruling R iverside, the supreme court held that the DTPA applied, reasoning that

plaint iffs were consumers since they "did not seek to borrow money; they sought to acquire a house."

Id. at 708. Similarly, in K

night v. Int'l Harvester Credit Corp., 627 S.W.2d 382 (Tex.1982), plaint iff

was a consumer since he sought a loan in order to purchase a dump truck. In both cases, however,

the goods or services sought by the borrower formed the basis for the DTPA complaint. Based on

this distinguishing factor, the court in Central Texas Hardware v. First City, 810 S.W.2d 234, 237

(Tex.App.—Houston [14th Dist.] 1991, writ denied), recently held that the plaint iff was not a

consumer simply because he intended to acquire seasonal inventory goods with the loan. Because

the plaint iff did not allege any complaint regarding the inventory items they intended to purchase with

the loan, the court ruled that the second step of the two-prong test in determining consumer status

was not satisfied. 1617 We deny Hill's various claims for attorneys' fees for costs in this appeal. We fail to find that

the appeal was frivolous or otherwise merits a fee award. We let stand that state court's

assessment of fees against Walker/Brunson as they apply to actions taken in that court and in the

state appellate court but hold that the state court's assessments for the taking of appeal do not

apply and are not involved in the appeal before us here. Likewise, in the instant case, although Walker/Brunson sought to use the mult i-millio n dollar

loan for the construction of a 238–room Homotel, they allege no complaint pertaining to the Hom otel

itself. We find that Walker/Brunson are not consumers within the meaning of the DTPA, and hold

that summary judgment was correctl y grant ed in favor of Defendants with respect to

Walker/Brunson's DTPA claim.

Considering the high

federal demands in a summary judgment inquiry that the facts

demonstrate a genuine issue, we hold that Walker /Brunson's claims against Hill for fraud and

conspiracy fail for lack of sufficient evidence. We also hold, however, that the summary judgment

evidence was sufficient to create a fact issue on Walker/Brunson's fraud claim against Bearden. We

reverse and remand this fraud claim to the federal district court with instructions to remand to the

state district court since this involves only state law. Accordingly, we affirm in part and reverse in

part the federal district court's adoption of the state court's grant of summary judgment in favor of

Defendants. 17

AFFIRMED IN PART AND REVERSED IN PART.