dissenting.
I respectfully dissent. Appellants, Aaron L. Ward and James E. Ward, were the majority interest partners in appellant, J.A. D.A. Alan D. Wilson and Danny Ray Todd were the minority interest partners in J.A. D.A. The Wards and J.A.D.A. appeal from a summary judgment in favor of appellees, Dallas Texas National Title Company, Clifford Ray Sinclair, Mike Faldmo, Dallas Title Company — Rowlett, Jane Nix, Lola Greene and Robert C. Lea. Since there have been many parties to this litigation, I refer to appellees as the “Interstate 30 parties.” For the purposes of this opinion, I assume, but do not decide, that all of the Wards’ assertions of wrongful conduct of any nature against the Interstate 30 parties are true. However, even assuming the truth of the assertions, I would affirm the trial court’s judgment for the reasons expressed below.
In order to focus on the Wards’ contentions which bear on the disposition I would make of this appeal, I quote the Wards’ brief:
[The Wards] alleged in the alternative that the minority partners, Todd and Wilson, joined the ongoing conspiracy of the [Interstate 30 parties and others] to falsely inflate the value of land for purposes of obtaining loans from Empire *923Savings and Loan and to divide among themselves the funds obtained by using partnership property in fraud of the Wards.
As I read the record, the Wards’ description of their “alternative” allegation is a misnomer. What the Wards call “alternative” is but a short-hand rendition of their conspiracy cause of action. I reach this conclusion because the Wards later tell us in their brief that:
[T]he Wards sued to recover the loss that resulted from the acts of their partners and [the Interstate 30 parties and others] who participated with them in the fraud and who benefited from the fraud and from the overall conspiracy to seize the business opportunity of J.A.D.A. and/or to inflate the value of the land for the purpose of obtaining loans from Empire.
Consequently, I read the Wards’ short-hand rendition to complain that the Interstate 30 parties conspired to defraud the Wards by denying the Wards an opportunity to participate in a scheme to defraud Empire Savings and Loan. Thus the participants, including the Wards, were to defraud Empire Savings and Loan by inflating the value of the Wards’ land. I remind the reader of the last-quoted portion of the Wards’ brief in which they state that the Wards sued to recover for loss resulting from being denied “the business opportunity of J.A.D.A. and/or to inflate the value of the land for the purpose of obtaining loans from Empire.” Hence, the Wards insist that they were entitled to be a party to defrauding Empire Savings and Loan. To my mind, no damages can be recovered for such a deprivation of the opportunity to defraud another.
In essence, the Wards seek to become a party to the illegal transaction — falsely inflating the value of their own land in order to obtain money from Empire Savings and Loan. A party who must rely upon his own participation in an illegal transaction in order to establish his case cannot recover. See Wiggins v. Bisso, 19 Tex. 219, 222, 47 S.W. 637, 638 (1898); Carnes Corp. v. Thermal Supply, Inc., 359 S.W.2d 99, 100-01 (Tex.Civ.App. — Houston 1962, no writ). Since the Wards must rely upon their own participation in an illegal transaction in order to establish their case, the Wards cannot recover. Hence, the Wards have not suffered damages for which the law allows recovery. In my view, the Wards’ inability as a matter of law to recover damages becomes critical to the disposition of this appeal.
An actionable civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). The essential elements are: (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. Massey, 652 S.W.2d at 934. I focus on the element of damages. A defendant-movant has the negative burden of proving that the plaintiff suffered no damages. Futerfas v. Park Towers, 707 S.W.2d 149, 156 (Tex.App. — Dallas 1986, writ ref’d n.r.e.). The standards for reviewing a motion for summary judgment are well established. As mandated by the Supreme Court of Texas they are:
1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.
2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.
3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.
Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). Taking the evidence favorable to the non-movant Wards as true and indulging every reasonable inference in favor of the Wards and resolving any doubts in favor of the Wards, I conclude that the Wards complain of nothing other than that a conspiracy by the Interstate 30 parties denied the Wards of an opportunity to participate in a scheme to defraud Empire Savings and Loan of the amount of $1,706,158 by inflating the value *924of the Wards’ land. I cannot agree that one may recover damages resulting from exclusion from an alleged conspiracy “to flip the property through a series of conveyances to sell it ultimately for a ‘fictitious and exaggerated value of more than $1.7 million’ ” to use the majority’s words. Surely, we have not reached the point where a person may recover damages for being denied the right to defraud. Therefore, in my view, the issue centers on whether the fifth essential element of a cause of action for civil conspiracy — damages as the proximate result — stands successfully negated. On this record, it is established that the Wards suffered no damages as a matter of law. To my mind, therefore, the damage element stands negated by operation of law. Since the fifth essential element of a cause of action for civil conspiracy stands negated as a matter of law, it follows that the trial court properly granted summary judgment against the Wards.
Another reason exists, however, why we should affirm the trial court’s judgment. In this court the Wards do not seek remand for trial on the merits. In the prayer for relief in a brief in the court of appeals, the nature of the relief sought should be clearly stated. TEX.R.APP.P. 74(g). I quote the Wards’ prayer for relief in their brief in this court:
WHEREFORE, Appellants respectfully request that the summary judgment of the trial court be reversed and that the cause be remanded with instructions to the trial court to overrule the Fifth Amendment objections of Defendants Faldmo and Sinclair to Plaintiff’s Request for Admissions and to deem the requested facts admitted, to set for hearing forthwith Plaintiffs’ motions, requests and special exceptions filed between 23 August 1985 and 12 November 1985, and to order Appellees to pay reasonable attorney fees in the sum of $10,-000.00 to Appellants’ attorneys as a sanction for abuse of the discovery process and to pay $15,000.00 reasonable attorneys fees to Appellants’ attorneys for intentionally leading the Court below into error which necessitated this appeal. Appellants further request that costs of this appeal be assessed against Appellees and that Appellants have any and all such other relief to which they are entitled.
Nowhere do the Wards pray that we remand for a trial on the merits. All that the Wards pray for is a remand with instructions to take certain actions. None of the actions sought of the trial court is a trial on the merits. Where the appellant does not pray for a remand for trial on the merits in an appeal from a take-nothing summary judgment, I would assume that, by the time the appellant got to the end of the appellant’s brief, the appellant was convinced that the trial court correctly disposed of the case and agreed that we should affirm the trial court’s take-nothing summary judgment against the appellant. Consequently, since the Wards do not pray for a remand for trial on the merits in this appeal from a take-nothing summary judgment, I would affirm the trial court’s take-nothing summary judgment against the Wards. Indeed, the lack of merit in the Wards’ lawsuit is obvious when we read in their prayer in this court that all the money damages they now want is $10,000.00 attorneys’ fees as a sanction for abuse of the discovery process and $15,000.00 attorneys’ fees as a sanction for intentionally leading the trial court into error necessitating this appeal.
For all of the above reasons, I would affirm the trial court’s judgment.