Therefore, it was part of the record to be considered by the trial court. See id. Nevertheless, Velvin Oil contends that the affidavit attached to the amended answer was not sufficient since it did not contain facts, and is therefore not proper summary judgment evidence, citing Fisher v. Yates, 953 S.W.2d 370 (Tex. App.—Texarkana 1997), pet. denied, Yates v. Fisher, 988 S.W.2d 730 (Tex. 1998) (per curiam), Gen. Elec. Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591 (Tex. App.—Houston [1st Dist.] 1993, writ denied). However, neither Fisher nor Gulf Electroquip, Inc., addressed the sufficiency of a verified denial under Rule 185.
Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex. 1979). In other words, recovery is not based on the conspiracy; instead, it is based on an underlying tort. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996); Fisher v. Yates, 953 S.W.2d 370, 381 (Tex.App.-Texarkana 1997), pet. denied per curiam, 988 S.W.2d 730 (Tex. 1998). Types of torts or unlawful acts on which a cause of action for conspiracy may be based include breach of a fiduciary duty and fraud, as in this case.
If a summary judgment order appears to be final and disposes of all claims or parties, the judgment should be treated as final for purposes of appeal. Inglish v. Union State Bank, 945 S.W.2d 810, 810-11 (Tex. 1997); Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993); Fisher v. Yates, 953 S.W.2d 370, 374 (Tex.App.-Texarkana 1997), writ den'd, 988 S.W.2d 730 (Tex. 1998). There are two judgments in this case.
; see also American Derringer Corp. v. Bond, 924 S.W.2d 773, 777 (Tex. App.—Waco 1996, no writ) (same). Finally, with respect to civil conspiracy, IBM cites Little v. Smith, 943 S.W.2d 414 (Tex. 1997), for the proposition the discovery rule does not apply to civil conspiracy claims while Sisoian cites Fisher v. Yates, 953 S.W.2d 370 (Tex. App.—Texarkana 1997, no writ), for the opposite contention. Neither case analyzed whether the discovery rule applies to conspiracy claims as a general rule but rather examined the underlying claim and injury to determine whether the discovery rule was applicable.
The alleged wrongful act underlying a conspiracy must be actionable against the individual conspirators. Fisher v. Yates, 953 S.W.2d 370, 381 (Tex.App.-Texarkana 1997, no writ); Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 82 (Tex.App. — San Antonio 1996, writ denied). Since there is no private right of action under the FDCA, there can be no conspiracy claim based on such a violation.
The alleged wrongful act underlying a conspiracy must be actionable against the individual conspirators. Fisher v. Yates, 953 S.W.2d 370, 381 (Tex.App.-Texarkana 1997, no writ); Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 82 (Tex.App.-San Antonio 1996, writ denied). Since there is no private right of action under the FDCA, there can be no conspiracy claim based on such a violation.
If this court were to grant en banc rehearing, overrule Mayes , and adopt the rule Agar advocates, we would create a conflict among the courts of appeals that most likely would persist until the Supreme Court of Texas resolved the issue.See Tucker v. Bedgood, 2016 WL 7011584, at *3 (Tex. App.—Corpus Christi Mar. 17, 2016, no pet. h.) (mem. op.); Archer v. Allison, 2015 WL 7889910, at *3 (Tex. App.—Amarillo Dec. 3, 2015, pet. denied) (mem. op.); Bennett v. Reynolds, 2014 WL 4179452, at *10 (Tex. App.—Austin Aug. 22, 2014, pet. denied) (mem. op.); Dodson v. Ford, 2013 WL 5433915, at *4 (Tex. App.—Fort Worth Sept. 26, 2013, no pet.) (mem. op.); Sharpe v. Roman Catholic Diocese of Dallas, 97 S.W.3d 791, 795 (Tex. App.—Dallas 2003, pet. denied) ; Chandler v. Chandler, 991 S.W.2d 367, 394 (Tex. App.—El Paso 1999, pet. denied) ; Martz v. Weyerhaeuser Co., 965 S.W.2d 584, 587 (Tex. App.—Eastland 1998, no pet.) ; Fisher v. Yates, 953 S.W.2d 370, 381 (Tex. App.—Texarkana 1997, writ denied) ; Allen v. City of Midlothian, 927 S.W.2d 316, 322 (Tex. App.—Waco 1996, no writ) ; Stroud v. VBFSB Holding Corp., 917 S.W.2d 75, 82 (Tex. App.—San Antonio 1996, writ denied) ; Stevenson v. Koutzarov, 795 S.W.2d 313, 318 (Tex. App.—Houston [1st Dist.] 1990, writ denied).See Tucker, 2016 WL 7011584, at *3 ; Archer, 2015 WL 7889910, at *3 ; Bennett, 2014 WL 4179452, at *10 ; Dodson, 2013 WL 5433915, at *4 ; Sharpe, 97 S.W.3d at 795 ; Chandler, 991 S.W.2d at 394 ; Martz, 965 S.W.2d at 587 ; Fisher, 953 S.W.2d at 381 ; Allen, 927 S.W.2d at 322 ; Stroud, 917 S.W.2d at 82 ; Stevenson, 795 S.W.2d at 318.
It is not necessary that all parties and issues be disposed of in a single document. Fisher v. Yates, 953 S.W.2d 370, 375 (Tex.App.-Texarkana 1997), pet. denied per curiam, 988 S.W.2d 730 (Tex. 1998); see alsoLehmann, 39 S.W.3d at 204. Thus, where the trial court has rendered a decree disposing of some, but not all, of the parties and issues, a subsequent decree disposing of the remaining parties and claims is final and appealable. Fisher, 953 S.W.2d at 375.
To constitute proper summary judgment evidence under Rule 166a(f), an affidavit must be made on personal knowledge, set forth facts which would be admissible in evidence, and show the affiant's competence. Tex.R.Civ.P. 166a(f); Fisher v. Yates, 953 S.W.2d 370, 383 (Tex.App.-Texarkana 1997), writ denied per curiam, 988 S.W.2d 730 (Tex. 1998). The allegations must be direct, unequivocal, and such that perjury is assignable.
As the Fifth Circuit noted, "Because the statute is derived from Texas common law fraud, the reliance and materiality elements of section 27.01 do not differ from those of Texas common law fraud." Haralson v. E.F. Hutton Group, Inc., 919 F.2d 1014, 1025 n. 4 (5th Cir. 1990); see also Fisher v. Yates, 953 S.W.2d 370, 380 n. 7 (Tex.App. 1997, writ denied) ("The reliance and materiality elements of statutory fraud [under section 27.01] do not differ from common law fraud."); Keith A. Rowley, The Sky is Still Blue in Texas: State Law Alternatives to Federal Securities Remedies, 50 Baylor L. Rev. 99, 124 n. 104, 163 n. 198 (1998) (noting that in contrast to an action under Texas Securities Act, an action pursuant to common law fraud or section 27.01 merely requires a subjective showing of materiality). The Defendants have failed to alert this court to any authority that treats section 27.01's materiality element as an objective one, and nor have we found any such authority.