2920 PARK GROVE JOINT VENTURE, LTD., CARY PLATT, AND CEC REALTY, Appellants, v. LANDAMERICA AMERICAN TITLE COMPANY, Appellee.

No. 11-05-00120-CVCourt of Appeals of Texas, Eleventh District, Eastland.
Opinion filed October 26, 2006.

On Appeal from the 162nd District Court Dallas County, Texas, Trial Court Cause No. 05-00286-I.

Panel consists of: WRIGHT, C.J., and McCALL, J., and STRANGE, J.

MEMORANDUM OPINION
JIM R. WRIGHT, Chief Justice.

This is an appeal from a take-nothing summary judgment. Appellants, 2920 Park Grove Joint Venture, Ltd., Cary Platt, and CEC Realty (referred to collectively as the purchasers), were originally sued by Stanley V. Graff over the sale of an apartment complex. Graff, the sole beneficiary of the estate that owned the apartment complex, objected to the sale. The sale, as authorized by the estate’s independent executor, nevertheless proceeded. After Graff filed suit against the purchasers, the purchasers then brought a third-party action against Land America American Title Company (American Title) and others who are not parties to this appeal. American Title filed a motion for summary judgment. The trial court granted American Title’s motion, ordered that the purchasers take nothing on their claims against American Title, and severed these claims from the case.[1] We affirm.

In their sole issue on appeal, the purchasers contend that the trial court erred in granting American Title’s motion for summary judgment with respect to the claims for negligence, negligent misrepresentation, and promissory estoppel. As to these claims, American Title asserted both traditional and no-evidence grounds in its motion for summary judgment. Because the no-evidence grounds are dispositive of the appeal, we will address only those grounds.

We must review a no-evidence summary judgment under the same standard as a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). Accordingly, we examine the record in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. Id.; Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002). A trial court must grant a proper no-evidence motion for summary judgment unless the nonmovant produces more than a scintilla of probative evidence to raise a genuine issue of material fact. TEX. R. CIV. P. 166a(i); Wal-Mart, 92 S.W.3d at 506.

In its motion for summary judgment, American Title asserted that there was no evidence of duty, no evidence of a misrepresentation, and no evidence of a promise. In their response, the purchasers asserted that their claims for “negligence/negligent misrepresentation and promissory estoppel” stem from a letter sent to the purchasers by Debby Moore, an escrow agent for American Title. American Title acted as the issuing agent for the title insurance underwriter, Chicago Title Insurance Company. Moore wrote the letter to an officer of Chicago Title as a follow-up to their conversation. In the letter, Moore set out the background regarding the sale of the apartment complex and Graff’s involvement and threats to sue “everyone” involved. The letter states that the will does not specifically grant to the independent executor the power of sale. Moore also set out the basis for Graff’s suit and some of the debts of the estate. The part of the letter upon which the purchasers’ claims are based is the following statement: “It is the belief of the probate attorney, Rock Pletcher and the real estate attorney, Paul Pesik that under the Probate Code, the Independent Executor does have power of sale in order to settle the estate.” The letter was created for “file” purposes, but Moore sent a copy to the purchasers.

Nothing in the purchasers’ response to American Title’s motion for summary judgment raised a genuine issue of fact regarding their claims for negligence, negligent misrepresentation, or promissory estoppel. With respect to duty, the purchasers asserted that title insurance companies may be liable for torts, such as fraud in misrepresenting the state of the title and negligent misrepresentation. The purchasers did not assert that American Title had an affirmative duty to “make sure clean title passed.”[2] Rather, the purchasers claimed that American Title “made affirmative misrepresentations and/or promises to them” when Moore communicated that the independent executor possessed the authority to sell the apartments.

The purchasers’ contentions are misguided. Moore did not state that the executor possessed the authority to sell the apartments. The letter does not contain any false statements, misrepresentations, or promises regarding the executor’s authority to sell; it merely conveys the opinions or “belief[s]” of two attorneys. Such opinions are not actionable. See Douglas v. Delp, 987 S.W.2d 879, 885-86 (Tex. 1999).

The record contains no summary judgment evidence creating an issue of fact as to the elements of the existence of a duty, a false representation, or a promise. Consequently, the trial court did not err in granting American Title’s motion for summary judgment. The sole issue on appeal is overruled.

The judgment of the trial court is affirmed.

[1] Although the parties have suggested that this appeal could become moot if a final, take-nothing judgment in favor of the purchasers against Graff is rendered in the original cause of action, there is nothing in the record in our court to suggest that this has occurred. The original cause of action is not before this court, and the parties do not challenge the propriety of the severance.
[2] We note that a title insurance company is not a title abstractor and owes no duty to examine title and that the only affirmative duty a title insurance company has to its insured is to indemnify him against loss suffered by defects in title, not to point out any outstanding encumbrances. Martinka v. Commonwealth Land Title Ins. Co., 836 S.W.2d 773, 777
(Tex.App.-Houston [1st Dist.] 1992, writ denied); see Tamburine v. Center Sav. Ass’n, 583 S.W.2d 942, 947 (Tex.Civ.App.-Tyler 1979, writ ref’d n.r.e.). A title insurer may, however, be held liable for an affirmative representation regarding title that causes damages to an insured. See First Title Co. of Waco v. Garrett, 860 S.W.2d 74, 77 (Tex. 1993) (where the court held that an insurer’s affirmative representation in its title insurance commitment that there were no restrictive covenants of record was sufficient to subject the insurer to liability).