Anubis Pictures, LLC and CMA Films, LLC v. Philco Films Productions, Ltd.

• Court: Court of Appeals of Texas
• Decided: March 3, 2021
• Docket: 05-19-00817-CV
• Status: Published

Opinion

AFFIRMED and Opinion Filed March 3, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-19-00817-CV

ANUBIS PICTURES, LLC AND CMA FILMS, LLC, Appellants V. LAUREN SELIG, SHAKE & BAKE PRODUCTIONS, STEPHEN LANNING, AND PHILIP HOBBS, Appellees

On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-17579

MEMORANDUM OPINION Before Justices Pedersen, III, and Reichek1 Opinion by Justice Reichek Anubis Pictures, LLC and CMA Films, LLC (collectively “Anubis”) appeal

two summary judgments dismissing Anubis’s claims against Lauren Selig and Shake

& Bake Productions (collectively “Selig”). Additionally, Anubis appeals the trial

court’s order granting the special appearances of Stephen Lanning and Philip Hobbs.

In two issues, Anubis generally contends there were fact issues precluding summary

1 The Honorable Bill Whitehill, Justice, participated in the oral argument and submission of this case, but not the issuance of the opinion, which occurred after the expiration of his term on December 31, 2020. See TEX. R. APP. P. 41.1(b) (“After argument, if for any reason a member of the panel cannot participate in deciding a case, the case may be decided by the two remaining justices.”). judgment in favor of Selig and the trial court had specific jurisdiction over both

Lanning and Hobbs based on their actions as agents for Philco Films, Ltd. (“Philco”),

a company based in London, England. Selig filed a cross-appeal asserting the trial

court erred in denying her motion for sanctions against Anubis and its counsel. For

the reasons that follow, we affirm the trial court’s judgments and orders.

Background

The actions giving rise to this lawsuit involve the financing of a film based on

a screenplay entitled “Downslope” written by the late Stanley Kubrick. In 2009, the

Kubrick estate granted authorization to develop and produce the screenplay to

Philco, Lanning, and Hobbs. Hobbs, who was Kubrick’s son-in-law and a director

of Philco, lives in London. Lanning, who resides in Spain, worked with Hobbs

during the relevant time period.

In October 2013, Philco entered into an agreement with five individuals,

collectively referred to as the SCVTA Group, to secure a portion of the financing for

the production of Downslope. The members of SCTVA agreed to obtain financing

for roughly half the anticipated cost of production in exchange for various finder’s

fees, production credits, and participation points.

Shortly thereafter, SCTVA reached out to Anubis, a Texas-based company,

to see if it wanted to invest in the film stating it would be “a great in-roads project”

for the company to “become players in Hollywood.” Anubis responded with a letter

stating that it would engage in “due diligence and further investigation” with respect

–2– to arranging financing for Downslope. The letter contemplated that SCTVA would

be the borrower of the funds and a term sheet would be forthcoming. It further stated

that “[t]his letter and the Term Sheet impose no liability or obligation on Anubis in

any way.” The record contains no indication that a loan to SCTVA was ever

pursued.

In November 2013, Jacob Cohen, one of Anubis’s principals, was introduced

to Selig, a partner in Shake & Bake Productions, in connection with a different

project. Following a phone conversation between Cohen and Selig, Cohen sent Selig

an email enclosing a non-disclosure agreement (“NDA”). The email stated that,

once the agreement was executed, Cohen wanted to share a film opportunity with

Selig that included Chris Pine and Anna Kendrick. The recital portion of the NDA

stated,

Anubis is in the business of financing, developing, creating, distributing, and publishing visual content for television, film, video games, internet, on-line, mobile, and other forms of distribution. [Selig] is a potential financial/creative partner and the parties desire to discuss the potential for Anubis to collaborate with [Selig] in connection with the aforementioned project(s) (the “Discussions”) and to provide for the confidentiality of the Discussions and the information relayed during such Discussions.

The NDA further stated that the parties to the agreement would not use any

confidential information received from the other party “except for the sole purpose

of participating in the Discussions.”

To be covered under the terms of the NDA, confidential information disclosed

in written form was required to be marked confidential on its face. Any oral –3– statement intended to be confidential had to be clearly designated as such by the

disclosing party. In addition, confidential information was defined by the NDA to

exclude, among other things, (1) information that had become publicly known

through no wrongful act of the receiving party, (2) information rightfully received

by the receiving party from a third party without restrictions on disclosure and

without breach of the agreement, (3) information approved for release by written

authorization of the disclosing party, and (4) information furnished by the disclosing

party to a third party without a similar restriction on disclosure.

The NDA specifically stated that neither Anubis nor Selig was obligated to

enter into a transactional contract. In a provision entitled “No Obligation to

Complete Transaction,” the parties agreed,

Neither party is bound to proceed with any transaction between the parties unless and until both parties sign a formal, written agreement setting forth the terms of such transaction. At any time prior to the completion of such a formal, written agreement, either party may terminate the Discussions and refuse to enter into any subsequent transaction, for any reason or for no reason, without liability for such termination, even if the other performed work or incurred expenses related to a potential transaction in anticipation that the parties would enter into a formal, written agreement regarding such transaction.

In a section entitled “Governing Law,” the NDA provided the agreement would be

governed by the laws of the State of Texas and any action arising out of or relating

to the agreement must be brought in Dallas County. The agreement concluded with

the statement that “[n]o waiver or modification of any of the provisions of this

Agreement shall be valid unless in writing and signed by both parties.”

–4– After Selig signed the NDA, Cohen emailed her a copy of a script for a film

called “Mantivities” which he stated would star Pine and Kendrick. Cohen asked

Selig to let him know when she had time to discuss financing for the Mantivities

project, but, after some discussion, Selig decided not to participate.

During this time period, Anubis had begun communicating directly with

Philco about the Downslope project. On December 2, Lanning emailed the members

of SCTVA to let them know that Philco had decided all further negotiations would

involve only Philco and Anubis. Lanning emailed Anubis the same day with points

to address in preparation for signing a letter of intent between Anubis and Philco.

Among the points to be addressed in the negotiations was whether Downslope would

be filmed in Texas. Lanning stated Philco needed creative input and “confirmation

by the director that Dallas will work as scripted, scheduled, and budgeted.”

In January 2014, while the letter of intent between Anubis and Philco was

being negotiated, a team from Anubis met with Selig to discuss several potential

projects, including Downslope. On January 10, an Anubis representative, Johnathan

Brownlee, emailed Selig a link to a copy of the Downslope script. Neither the email

nor the script was marked as confidential. Selig responded to Brownlee a few

minutes later asking, “You own it outright?” Brownlee responded, “We have an

executed exclusive to finance for Philco.” Brownlee went on to state that the director

of the film, Jay Russell, had spoken with Joaquin Phoenix and Matt Damon and he

requested that Selig not forward the script. In an email sent a few hours later,

–5– Brownlee told Selig the budget for the movie was approximately $20 million and,

although it was originally budgeted to be shot in Romania, it was now going to be

shot in Texas. Neither email was marked confidential.

Two and a half weeks later, on the morning of January 27, Brownlee emailed

Selig again, asking if she was interested in discussing the “Kubrick deal.” Over the

next several hours, Selig and Brownlee exchanged emails regarding issues such as

sales estimates and producers. None of the emails was marked as being confidential

or containing confidential information. Selig then asked Brownlee whether Anubis

had shown the Downslope project to anyone else and she stated she had “deep

relationships with Film Nation, Exclusive, and Voltage.” Brownlee responded they

had not yet shown the project to anyone because Anubis wanted to solidify its

financing partners first. Brownlee went on to state, “If you are interested, let us

know. We can put together an LOI subject to budget, sales estimates . . . etc. and

then take it to the market together.”

While Brownlee was in discussions with Selig, Cohen was continuing

negotiations with Philco. Cohen emailed Lanning a letter of intent for Anubis and

Philco “to enter into a more formal Production Financing Agreement.” In the letter,

Anubis stated it was committed to funding up to half of the total budget for the

production of Downslope in exchange for various production credits, approval

rights, and fees. Anubis also specified that Downslope would be shot in Texas and

based in Dallas. The letter concluded, “If the proposed terms are acceptable to you,

–6– please sign below and we will incorporate these terms into the Agreement in which

both parties shall commence to negotiate and draft in good faith, provided, however,

that until the Agreement is executed, the proposed terms of this letter shall be in full

force and effect.” Later that day, Lanning emailed the members of SCVTA stating

Philco had “agreed and signed our LOI with Anubis. Many thanks for making the

introduction possible.”

Half an hour after Cohen sent Lanning the Philco letter of intent, Brownlee

emailed Selig a substantially similar letter stating, “If this works for you, please

execute and return and we can move forward.” Brownlee testified the letter was

based on discussions with Selig and memorialized the terms to which Selig had

agreed. The terms set out in the Selig letter of intent were largely identical to those

set forth in the Philco letter of intent, but with Selig in the place of Anubis and taking

on the responsibility to fund 50% of the total cost of Downslope. The letter did not,

however, give Selig some portions of the compensation Anubis was to receive from

Philco pursuant to the Philco letter of intent.

The next day, January 28, although Selig had not executed the letter of intent,

Brownlee emailed Selig and told her that she could send the Downslope script to her

industry contacts. Brownlee made no mention of keeping the script confidential.

Brownlee also told Selig he had not yet given any of her information to Philco, but

that Philco was “open to our team financing the entire project” and he would set up

a call with the “whole team” when she was ready. Selig asked if she could contact

–7– the agent for Joaquin Phoenix, and Brownlee responded that she should “stay away

from agents until we are able to come to an agreement . . . in principle . . . then we

can hit it hard and get the deal packaged!” (Ellipses in original.) Brownlee also sent

Selig a list of twenty well-known actors, including Ryan Gosling, Brad Pitt, Robert

Downey, Jr., and Ryan Reynolds, who he believed might be interested in the project

stating “Confidentially . . . and in no particular order . . . [] I think we can get any

one of these guys based on the script and the Kubrick ‘last script’ buzz.” (Ellipses in

original.) Selig then forwarded the Downslope script to her contacts at Film Nation

and Voltage. The email began with “[s]ending this one to you confidentially” and

went on to say that she and Anubis were “on the hunt for a sales company and to

complete the funding for [the film].”

Later that evening, Brownlee emailed Philco stating Anubis had “a great call

with one of our financial and producing partners regarding ‘Downslope’” and the

partner had “expressed strong interest in financing the entire project.” Brownlee

also stated that Anubis had a “signed NDA with this group.” Although Brownlee

had already told Selig she could speak with her contacts, he requested permission

from Philco to “reach out to some of our strategic distribution and sales partners”

including “Exclusive, Film Nation, and potentially Voltage.” Brownlee went on to

state, “We noticed that we do not have a mutual NDA between our groups and, as a

matter of course, have attached [one] for your execution. We are then happy to share

our partner’s information and set up that call. If you would also not share the project

–8– with any other potential financing partners until further notice, it would be

appreciated.” The Philco NDA was nearly identical to the one signed by Selig.

On January 30, Selig emailed Brownlee asking if she could contact another

individual with whom she frequently partnered on funding things. Selig stated,

“Also I want to be clear about how this works if I help you get the money or fund it

myself. I don’t want to get into a situation where I pull off a little miracle and get

left in the dust. Has happened before. It’s not fun.”

Shortly thereafter, Cohen sent Selig a copy of Anubis’s letter of intent with

Philco. Selig responded, “This is your letter to them. Did they counter sign? Just

want to make sure you really have this buttoned up and that if I help you raise the

capital on this that I am attached as a producer with fees pari [passu] to you.” 2 Selig

testified that the Philco letter of intent did not indicate to her that Anubis had an

“executed exclusive” with Philco as had been represented, but only a preliminary

arrangement to fund half of the film’s production budget. She also did not view the

letter as an enforceable financing agreement. Selig stated she then sought to make

contact directly with Philco through her industry contacts with the Downslope

director, Jay Russell.

On January 31, Russell introduced Selig to Lanning and Hobbs via email.

Selig told them she was excited about the project and would love to help them get it

2 “Pari passu” is a Latin phrase meaning at the same rate or on equal footing.

–9– funded. This email was followed by a phone conversation and a request by Selig to

meet with the men when she was in Europe in February.

Selig then emailed Brownlee stating that she had talked with Lanning and

Hobbs and she was “going to get this funded.” Brownlee responded, “Let’s get you

officially attached and then we can set some stakes in the ground and get this done!”

Selig said she could meet with Anubis on February 14 when she returned from

Europe and she wanted to discuss how funding the project would be structured.

Cohen then emailed Lanning asking him to sign the NDA he had sent earlier

and proposed having “an introductory call” with Selig “with the intent that we begin

the drafting of a short form agreement shortly thereafter.” Brownlee also sent an

email to Philco and Selig stating, “We are glad to have our partner, Lauren Selig and

her Shake and Bake productions excited to be a part of this project. Let us all get on

a call on [February 3] and speak and set out some parameters and milestones ahead

of us in order to act as one unified team.”

Before the February 3 conference call, Brownlee emailed Selig’s attorney,

Matthew Hooper, stating Anubis was “happy to include Lauren as an equal partner

in our current overall Anubis deal with Philco. Once we have an executed

agreement, we will go back to Philco and get approvals on requested credits. I

suggest a time/term for Lauren to line up the financing or a clause which states that

the terms of her attachment and remuneration are subject to the performance and

closing of the $21MM in financing for ‘Downslope.’”

–10– Following the call, Selig emailed Lanning and Hobbs stating she would circle

back with them after talking to Brownlee and asked again if they were available to

meet while she was in Europe. Lanning responded that Hobbs would be in London

when she was there and that he might be able to join them. Lanning further

commented, “Those calls are funny. Until Anubis prove [sic] their half they control

nothing really.” Selig relied, “Yes very funny. They pretend to be something they

are not.”

Later that evening, Selig emailed Lanning and Hobbs asking about proof that

the Downslope script was “authentically Kubrick.” Lanning responded that they had

“a budgeted $2.2 mill fee payable directly to the Kubrick trust guaranteeing its

pedigree. With an accompanying 60 page chain of title.” Lanning followed this

with an email to Brownlee stating, “We will happily provide [chain of title] . . . when

we in turn receive more proof of funds\Financing.” Brownlee forwarded the email

to Selig and told her she could see the chain of title “[w]hen we show [proof of

funds] or commit to the financing. I would suggest that we get our internal deal

signed and then we can make the [chain of title] a request subsequent to executing

the [short form agreement].” When Selig stated that she did not want to proceed

further without seeing a chain of title, Brownlee responded that he understood “if

[she] cannot continue at this point.”

The next morning, after Brownlee learned of Selig’s planned meeting in

London with Philco and others, including Stanley Kubrick’s widow, Christiane

–11– Kubrick, Brownlee emailed Selig asking “are you okay with [t]he [chain of title] as

you are now set to meet with the Kubrick family[?]” Selig forwarded the email to

Lanning and Hobbs asking how they would like her to handle it. She stated,

[Brownlee] is being rather pushy about my signing a document with them. I am not going to get into a battle on this and would be happy to help you fund this and get it cast. If they have an exclusive with you then my only way to get involved would be to go through them. If not we need to figure out another way. And I am not interested in doing a meeting with christian[e] kubrick and anubis at the same time as I have not signed anything yet.

When Brownlee did not receive a response from Selig about the meeting in

London, he emailed Hooper, telling him, “We have arranged for Lauren to meet with

the Kubrick estate in London . . . Can you give us timing on the Anubis/Selig

document so we can manage expectations on all sides?”

On the morning of February 5, Selig forwarded the Downslope script to

another industry contact along with information about the project obtained from

Russell that was forwarded to her by Lanning. The email stated, “I have the

opportunity to produce with a company called Philco out of the UK that is the family

rights holder. Ccd above. . . . As I mentioned, Glen at Film nation, nick at voltage

and exclusive are the only sales companies that have it so far as they were pre-

approved by philco.” Selig then stated she would be meeting with Christianne

Kubrick in one week and asked for help with casting and funding.

Later that day, Lanning sent an email to Brownlee stating that Philco had other

financiers “willing to go to the next stage with proof of funds via their bankers” and

–12– asked if Anubis was able to respond accordingly. Lanning further stated that, “So I

am able to deal sensibly with these potential other funders which is dependent on

Anubis creating a new offer for 100% of the finance, I would like you to confirm in

writing that Lauren Selig is signed to partner you in this new arrangement as you

indicated on our recent telephone conversation.” Lanning forwarded the email to

Selig and told her he would send her Anubis’s response. Selig responded that

Brownlee had been trying to call her all morning, but she was “not going to sign his

deal right now. He deserves a finder’s fee, but I don’t want to be tied to him through

this process and I don’t like his way of making up stories. That doesn’t work for

me.” Lanning agreed and noted that Philco would save additional fees if it did not

contract with Anubis directly.

Brownlee responded to Lanning’s email stating, “As I mentioned on the phone

yesterday, we are completing internal documentation between Lauren and Anubis

and we will get written confirmation to you once this is executed. In anticipation of

that, we will be sending an adjusted LOI which allows for Anubis to finance 100%

of “The Downslope” and additional credits to include Lauren and her company.”

Lanning replied that he did not “need another LOI in anticipation of the

Lauren/Anubis Deal. As obviously your deal with her is not finalized yet. More

important to us is the question of you providing proof of funds now to accommodate

other contacts.” Brownlee replied that Anubis’s funding was not contingent upon

Selig’s involvement and they were prepared to speak to Philco’s other potential

–13– investors once Philco had “signed agreements with them under the same terms as

our executed agreement.”

At the same time, Brownlee emailed Selig asking, “Are you still wanting to

proceed with “The Downslope?” If you could give us an update, it would be

appreciated. If so, we should put Matt [Hooper] in touch with our counsel, Larry

Waks, to complete our agreement.”

Nineteen days later, on February 24, when Philco had not received proof of

funds from Anubis, Lanning sent an email entitled “Termination of Arrangement to

Fund ‘The Downslope.’” In the email Lanning stated,

It is with regret that Philco today is terminating its relationship with Anubis to part fund “The Downslope.” Your lack of contact has really unsettled us as well as putting doubt in Philco’s ability to perform with some of its other potential financial sources. We have been waiting since February 5th for you to come back to us with some answers or even to make any contact at all. I personally called on the 6th and 7th leaving messages on your message service. You also never made any further contact with our Director who made time to meet up with you when you were planning your recent LA visit. We will naturally not discuss with anyone our reasons for ending this arrangement and wish you great success with all your other projects.

Despite this email, four months later, on June 29, Brownlee emailed Selig

regarding their “mutual project, Downslope” and stated Anubis had become aware

that she was pursuing the opportunity directly with Philco. Brownlee stated he

“found this very disturbing as all parties are aware of our exclusive in this film

project.” Brownlee referenced the non-disclosure agreement Selig signed in

November 2013 and the fact that Anubis had later sent her the Downslope script in

–14– January 2014. Brownlee then stated that, “As requested, we sent Matthew [Hooper]

our executed agreement with Philco as well as a draft Term Sheet (January 27, 2014)

for your/Shake and Bake’s involvement in our project, “Downslope.’” According

to the email, Anubis made repeated attempts over the following weeks “to get the

Anubis/Shake and Bake Term sheet completed and executed.” Brownlee advised

Selig that “if it is your, or anyone whom you introduced this project too [sic],

intention to proceed at any level with this project, we request that you immediately

comp[l]ete and execute our agreement as originally intended.”

Hooper responded that Anubis had misrepresented its relationship with Selig

to Philco and Anubis’s inability to participate in the project was due to its own

“complacency and poor communication.” The email concluded by demanding that

Anubis cease and desist from stating that “Anubis in any way represents Ms. Selig

in any transaction” or from interfering in Selig’s current or prospective agreements

and business relationships.

Anubis filed this action in December 2017 asserting claims against Selig,

Lanning, and Hobbs for, among other things, breach of the Selig NDA, breaches of

the letters of intent, quantum meruit, promissory estoppel, fraud, and breach of

fiduciary duty. Lanning and Hobbs filed a special appearance contending the trial

court lacked either general or specific jurisdiction over them. Selig filed two

motions for summary judgment.

–15– Following separate hearings and in separate orders, the trial court granted

summary judgment in favor of Selig, first on Anubis’s contract claims, and later on

its claims for quantum meruit, promissory estoppel, fraud, and breach of fiduciary

duty. On the same day the court granted Selig’s second summary judgment, it signed

an order granting Lanning and Hobbs’s special appearance and dismissed the suit

against them.

Thirty days after Anubis’s claims were dismissed, Selig filed a motion for

sanctions against Anubis and its counsel contending the claims against her were

baseless as shown by Anubis’s own documents and the suit was brought solely for

the purpose of harassment. Anubis responded that Selig failed to identify any proper

basis for an award of sanctions and the motion was “nothing more than an effort to

convert summary judgment practice into a fee-shifting mechanism.” The trial court

denied Selig’s motion and she and Anubis filed these cross-appeals.

Analysis

Summary Judgment

I. Breach of Contract Claims

In its appeal, Anubis first challenges the trial court’s summary judgment

dismissing its claims against Selig for breach of contract. Selig moved for summary

judgment on the contract claims asserting several grounds including that the

evidence conclusively established (1) her nondisclosure agreement with Anubis did

not restrict the information Anubis provided her regarding the Downslope project

–16– and (2) the unsigned letter of intent was not binding on her. We review an order

granting a motion for summary judgment de novo. Lujan v. Navistar, 555 S.W.3d

79, 84 (Tex. 2018). To be entitled to summary judgment, the movant must show no

genuine issues of material fact exist and they are entitled to judgment as a matter of

law. Id. We first address Anubis claims against Selig based on the non-disclosure

agreement.

A. The Nondisclosure Agreement

Anubis contends the trial court erred in granting summary judgment on its

claims under the NDA because the agreement applied to the Downslope project and

there were fact issues regarding whether Selig misused confidential information

Anubis had given her.3 According to Anubis, the allegedly confidential information

it provided Selig included the Downslope script and information about casting,

budget, sales estimates, and staffing. The NDA between Anubis and Selig required

that, for written material to be considered confidential, it must be marked

confidential on its face. Excluded from the agreement was any information that was

(1) publically known at the time it was disclosed, (2) approved for release by the

disclosing party, or (3) rightfully received from a third party without restriction on

disclosure. Absent a compelling reason, courts must respect and enforce the terms

3 As an alternate ground for summary judgment, Selig asserted that the NDA applied only to the Mantivities project. For purposes of this opinion, we assume the NDA applied to the Downslope project as urged by Anubis.

–17– of the contract the parties have freely and voluntarily made. Bombardier Aerospace

Corp. v. SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 230 (Tex. 2019).

It is undisputed that the Downslope script was not marked confidential and,

when Brownlee first shared it with Selig, he simply sent her a link to the script

without any indication that it was confidential. In a later email discussing the film’s

director and possible cast members, Brownlee simply stated, “Please do not forward

the script.” This email was followed a short time later by an email in which

Brownlee discussed the film’s budget and the fact that the filming location was being

moved from Romania to Texas. Like the script, these emails were not marked as

confidential and thus would not meet the agreement’s definition of confidential

information. Only one email contained the word “confidentially” and the substance

of that email was not information, but rather speculation by Brownlee about twenty

popular actors he thought might be interested in the Downslope project.

It is also undisputed that the Kubrick estate is the rights holder to both the

Downslope script and the project. Lanning testified Philco became authorized to

represent the Kubrick estate in connection with the Downslope project in 2009 and,

since that time, Philco had shared the script with “many persons and entities . . . who

were interested in developing the script into a movie.” Lanning further testified that,

on behalf of Philco, he “shared with Lauren Selig the script for Downslope and

various other materials relevant to the Downslope project.” Although Anubis argues

–18– Philco restricted Selig’s ability to disclose the script, thereby making it confidential

under the terms of the NDA, Anubis cites no evidence to support this assertion.4

Anubis contends that, even if the materials it disclosed to Selig were not

initially covered by the agreement, there is a fact issue regarding whether the parties

considered the information confidential because Selig treated it as such when she

asked for Anubis’s permission to send the Downslope script and information about

the project to some of her contacts. This argument begs the question of how Selig

could have breached the NDA if she treated the information given to her as

confidential in the manner prescribed by the agreement.

The summary judgment evidence contains three disclosures by Selig of

information about the Downslope project. The first two disclosures occurred on

January 28, 2014, and were authorized by Anubis in writing, thus removing the

information from the definition of confidential information under the terms of the

agreement. The third disclosure occurred on February 5 and was specifically

4 Although Anubis provides a record citation to support this argument, the page Anubis cites is a court reporter’s certification. Immediately preceding this page is deposition testimony by Selig in which she stated that it would be her “preference that the Downslope script isn’t shared to the greater public.” Anubis does not explain how this statement can be read to suggest that Philco restricted Selig’s use of the script. Alternatively, on the pages following the court reporter’s certification are emails between Selig and Lanning. In these emails Selig requested Philco’s permission to reach out to other contacts to “package” with her on the project. The emails do not contain any reference to restrictions on Selig’s use or disclosure of information, nor can any such restriction be inferred. Lanning’s response to Selig’s request was simply “Yes,” with no mention of any restrictions on the information Selig could provide her contacts. The email Selig then sent to one of her contacts, and on which both Lanning and Hobbs were copied, included the Downslope script and information about the budget, production, and casting with no mention of confidentiality.

–19– authorized by Philco. This disclosure included the script, to which Philco had the

exclusive rights from the Kubrick estate, and information from the film’s producer

given to Selig by Lanning, not Anubis.5

Anubis contends that, under the terms of the NDA, Selig was permitted to use

the information it gave her about Downslope only for the purpose of participating in

discussions with Anubis. Accordingly, it argues that her working directly with

Philco constituted a violation of the agreement and any information she received

from Philco was not “rightfully received.” In making this argument, Anubis

attempts to bootstrap its claim that Selig violated the NDA to its claim that she

breached the unsigned letter of intent. The NDA states that neither party is obligated

to proceed with any transaction until both parties sign a formal, written agreement

setting forth the terms of the transaction. The NDA further states that, at any time

prior to the completion of such a formal, written agreement, Selig was free to

terminate her discussions with Anubis. Nothing in the NDA prevented Selig from

choosing not to proceed with Anubis and to work with directly with Philco.

5 Lanning testified he gave Selig a copy of the script in February 2014. Anubis argues the evidence suggests this did not occur until after Selig sent the script to her contact on February 5. Because of this, Anubis contends Selig must have sent the copy it received from Anubis which was covered by the agreement and required Anubis’s authorization. Even assuming the script could be considered confidential information, it is undisputed that Anubis received its copy of the script from Philco and that Philco authorized Selig to disclose the script to her contact on February 5. Brownlee in fact testified that he requested Philco’s permission to share the script when he authorized Selig to make the January 28 disclosures. Whether the copy of the script Selig sent her contact on February 5 was given to her by Anubis or Philco is a distinction that makes no difference.

–20– Nor does the NDA prevent Selig from using information she obtained from

Anubis once she obtained the same information from Philco. In fact, the agreement

excludes such information from coverage. While Selig may not have been aware of

the opportunity to work with Philco prior to Anubis discussing the project with her,

the opportunity itself was not confidential information and Anubis makes no

argument to show that it was.6 Although the agreement prevents Selig from

disclosing to Philco any confidential information she obtained from Anubis of which

Philco was unaware, there is no evidence in the record that this occurred. The

evidence shows instead that Selig’s discussions with Philco involved information

provided by, and originating from, sources unrelated to Anubis and given to Selig

by Philco. Accordingly, we conclude the trial court properly granted summary

judgment on Anubis’s claim for breach of the NDA.

B. The Letter of Intent

Selig moved for summary judgment on Anubis’s claim for breach of the letter

of intent contending the evidence conclusively showed no enforceable transactional

contract was ever formed. Anubis concedes that Selig never signed the letter of

intent, but argues there is a fact issue regarding whether an enforceable oral

6 Selig provided summary judgment evidence showing that the production of the Downslope script and Philco’s involvement with the project was publically known for years before Anubis became involved. Although Anubis objected to this evidence, the trial court overruled these objections and, other than noting the objection, Anubis presents no argument or authority on appeal challenging the trial court’s ruling.

–21– agreement was created. We conclude the summary judgment evidence shows no

enforceable contract was formed as a matter of law.

To prove the formation of a valid and enforceable contract, Anubis is required

to establish that (1) an offer was made; (2) the other party accepted in strict

compliance with the terms of the offer; (3) the parties had a meeting of the minds on

the essential terms of the contract; (4) each party consented to those terms; and (5)

the parties executed and delivered the contract with the intent that it be mutual and

binding. USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 502 n.21 (Tex.

2018). In addition, a party seeking to recover under a contract bears the burden of

proving that all conditions precedent have been satisfied. Chalker Energy Partners

III, LLC v. Le Norman Operating LLC, 595 S.W.3d 668, 673 (Tex. 2020). Parties

may agree that a formal, written agreement signed by the parties is a condition

precedent to contract formation. Id.

The elements of oral contracts are the same as for written contracts and must

be present for a contract to be binding. Thornton v. Dobbs, 355 S.W.3d 312, 316

(Tex. App.—Dallas 2011, no pet.). In determining whether an oral contract exists,

we examine the communications between the parties and the circumstances

surrounding those communications. Id. Although whether parties have formed a

contract to which they intend to be bound is often a question of fact, it may be

resolved by the court as a matter of law. See Chalker, 595 S.W.3d at 673.

–22– In this case, the only contract signed by both parties was the NDA. In that

contract, Anubis and Selig agreed that neither party was “bound to proceed with any

transaction between them unless and until both parties signed a formal, written

agreement setting forth the terms of such transaction.” The Texas Supreme Court

recently addressed the effect of a substantially similar “no obligation” provision in

Chalker Energy Partners III, LLC v. Le Norman Operating LLC. Id.

In Chalker, the parties signed a “Confidentiality Agreement” that included a

“no obligation” provision stating “unless and until a definitive agreement has been

executed and delivered, no contract or agreement providing for a transaction

between the Parties shall be deemed to exist.” Id. The supreme court began its

analysis of the effect of this provision by stressing that “Texas’s strong public policy

favoring freedom of contract is firmly embedded in our jurisprudence.” Id. The

court went on to conclude that language such as that found in the “no obligation”

clause “makes clear the parties’ intent that the contemplated formal document is a

condition precedent to contract formation.” Id at 674. Because no contract was

“executed and delivered” by the parties as required by the confidentiality agreement,

the court concluded no binding transactional contract was created as a matter of law.

Id.

The language in the NDA before us is substantively identical to the language

presented in Chalker. The “No Obligation to Complete Transaction” provision of

the NDA drafted by Anubis required the parties to sign a formal, written agreement

–23– setting out the terms of the transaction before the parties became contractually

bound. Because Selig never signed a written agreement with Anubis, the agreed

upon condition precedent to the formation of a transactional contract was never

fulfilled and no binding contract was created. Id.

Like the plaintiff in Chalker, Anubis argues Selig waived the requirement of

an executed written contract by her conduct. Waiver is an intentional relinquishment

of a known right or intentional conduct inconsistent with claiming that right. Id. at

676. Although waiver is ordinarily a fact question, when the surrounding facts and

circumstances are undisputed, waiver may be decided as a matter of law. Id. at 676–

77. To establish waiver by conduct, Anubis was required to show that Selig acted

in a manner that was “unequivocally inconsistent” with relying on her right to not

be bound until she signed a formal, written agreement. See id. at 677.

The evidence Anubis relies upon to show waiver is largely affidavit testimony

by Brownlee. In his affidavit, Brownlee stated that, on January 27, 2014, he spoke

with Selig on the phone and “Anubis understood that agreement had been reached.”

Brownlee further testified that “Selig requested that the terms be memorialized in

writing” and “at Ms. Selig’s direction, Anubis sent Ms. Selig a letter of intent . . .

memorializing those terms and requested her signature so that ‘we can move

forward.’”

Rather than demonstrating waiver, this testimony confirms that Selig was

relying on the need for a signed, written agreement before she would be contractually

–24– bound to proceed with any transaction with Anubis. Brownlee’s testimony

concerning his understanding of the conversation with Selig is insufficient on its

own to create a fact issue. An interested witnesses’ affidavit testimony reciting that

he believes certain facts to be true is not readily controvertible and has no probative

value. Doe I v. Ripley Entm’t, Inc., No. 05-18-00470-CV, 2020 WL 57339, at *3

(Tex. App.—Dallas Jan. 6, 2020, no pet.) (mem. op.). Brownlee’s self-serving

statement that he believed an oral agreement had been reached, without any

underlying factual support, will not raise a fact issue to defeat summary judgment.

The absence of underlying facts to support Brownlee’s testimony is made

apparent by the abundant evidence showing that neither Selig nor Anubis conducted

themselves in a manner suggesting an enforceable transactional agreement between

them had been reached. Anubis points to the emails Selig sent to her industry

contacts stating that she and Anubis were “on the hunt” for funding for the

Downslope project as evidence that Selig believed the parties had finalized an

agreement to work together. But the NDA drafted by Anubis contemplated the

parties would “perform[] work or incur[] expenses related to a potential transaction

in anticipation that the parties would enter into a formal, written agreement regarding

such transaction.” It was agreed that such work would be performed without either

party being liable to the other if they chose not to go forward with the transaction

before a formal agreement was signed. Performing work related to the potential

–25– transaction does not, therefore, demonstrate Selig believed a binding transactional

agreement between the parties existed or that she intended to waive the requirement

of a formal, written contract signed by both parties. All other communications

between Selig and Anubis are consistent with Selig’s assertion that no enforceable

agreement had been created.

Immediately before Selig sent the emails to her contacts stating that she and

Anubis were “on the hunt” for funding, Brownlee told her that she could not contact

the agent for one of the proposed actors because they had not yet “come to an

agreement [] in principle.” Later that same day, Brownlee told Philco that Anubis

had a signed NDA with Selig, but made no mention of any transactional agreement.

Two days later, after Selig received a copy of the letter of intent between

Philco and Anubis, Selig expressed concern to Brownlee that “if” she helped Anubis

raise capital for Downslope, she wanted to make sure she was “attached as a

producer with fees pari [passu]to [Anubis].” Contrary to Selig’s stated requirement,

the letter of intent drafted by Anubis did not grant her the same compensation that

Anubis was to receive. Accordingly, the letter of intent upon which Anubis relies

did not reflect the deal Selig stated she wanted.

Over the next several days, Anubis repeatedly requested that Selig sign the

letter of intent so that she would be “officially attached.” Brownlee stated Anubis

could not get approvals on producer credits for Selig until she and Anubis had “an

executed agreement.” Additionally, Brownlee sent an email to Selig’s attorney

–26– suggesting that a clause be added to the agreement stating the terms of her

attachment and remuneration would be subject to her performance in obtaining

financing. It is clear from this, that the terms of a transactional agreement between

Anubis and Selig were still being negotiated.

Finally, on two different occasions, Brownlee indicated Selig was free to

discontinue her involvement with Downslope. When Selig told Brownlee she did

not want to continue exploring funding without a chain of title guaranteeing

authenticity of the script, Brownlee responded that he understood if she chose not to

continue with the project at that point. Brownlee later asked Selig if she was “still

wanting to proceed with ‘The Downslope?’” All communications between Selig

and Anubis clearly demonstrate Selig did nothing unequivocally inconsistent with

her right to insist upon a formal, written agreement signed by both parties. We

conclude the trial court properly granted summary judgment on Anubis’s claim for

breach of the letter of intent. See Chalker, 595 S.W.3d at 677.

II. Quantum Meruit

As an alternative to its contract claims, Anubis additionally sought to recover

from Selig under a quantum meruit theory. Anubis asserts that Selig’s email to

Lanning in which she suggested Anubis was entitled to a “finder’s fee” for bringing

the parties together was “legally sufficient evidence that Anubis provided her with

valuable services or materials.” We disagree.

–27– Quantum meruit is an equitable remedy based upon the promise implied by

law to pay for beneficial services rendered and knowingly accepted. Hill v. Shamoun

& Norman, LLP, 544 S.W.3d 724, 732 (Tex. 2018). To recover under quantum-

meruit, the claimant must prove that: (1) valuable services were rendered or

materials furnished; (2) to the person sought to be charged; (3) those services and

materials were accepted by the person sought to be charged, and were used and

enjoyed by her; and (4) the person sought to be charged was reasonably notified that

the claimant performing such services or furnishing such materials was expecting to

be paid by the person sought to be charged. Id. at 732–33. A party generally cannot

recover under a quantum meruit claim when there is a valid contract covering the

services or materials furnished. Id. at 733.7

Anubis contends that it expected compensation for introducing Selig to

Philco. To succeed on its claim, however, Anubis was required to show that it

7 In her first motion for summary judgment, Selig contended that any services or materials furnished to her by Anubis were covered by the NDA, which specifically prohibited recovery for work performed or expenses incurred related to a potential transaction if the parties did not enter into a formal, written transactional agreement. After a hearing on Selig’s motion, the trial court granted summary judgment against Anubis on its contract claims, but reserved judgment on the remaining claims, including the quantum meruit claim, until after further discovery was conducted. Sometime later, Selig filed a second motion for summary judgment on Anubis’s remaining claims. In this motion, Selig did not reassert her argument that the NDA contractually barred Anubis’s claim for quantum meruit. Nor did she incorporate her prior motion for summary judgment by reference. In its order granting summary judgment in favor of Selig on Anubis’s claims for quantum meruit, breach of fiduciary duty, fraud, and promissory estoppel, the trial court stated it considered only Selig’s second motion for summary judgment. Accordingly, our review is limited to the grounds presented in that motion.

–28– expected compensation from Selig for introducing her to Philco. Id.8 The evidence

presented by Anubis showed that it cultivated a relationship with Selig in the hope

that she would agree to provide financing to Philco. If the deal was consummated,

both Anubis and Selig would receive compensation from Philco. Anubis presented

no evidence that there was ever any contemplation that Selig would compensate

Anubis for anything. See Peko Oil USA v. Evans, 800 S.W.2d 572, 576 (Tex. App.—

Dallas 1990, writ denied) (quantum meruit claim fails absent evidence of expectation

of payment from defendant).

Even the gratuitous “finder’s fee” statement made by Selig, and relied upon

by Anubis, cannot support Anubis’s claim. First, Selig was brought in by Anubis

for the benefit of itself and Philco. As the “found” party, Selig would not be the one

obligated to pay the fee. More importantly, Anubis’s alleged contract with Philco

stated that Anubis was to provide funding for the Downslope project, not find other

parties who would provide funding.9 Anubis provided no evidence that either Selig

or Philco expected or agreed at the time the introduction was made that Anubis

would be paid a finder’s fee for its introduction of Selig to Philco. See id. (court will

8 Anubis contends that Selig’s second motion for summary judgment challenged only the first two elements of its quantum meruit claim. We do not read Selig’s motion so narrowly. In her motion, Selig clearly argued that Anubis could not show it expected payment from her for any services it rendered. 9 Anubis contends that its due-diligence letter with SCTVA contemplated Anubis could arrange financing for Downslope with “one or more lenders.” This letter, by its terms, (1) was between only Anubis and SCTVA, (2) specified SCTVA as the recipient of funds raised by Anubis, and (3) “imposed no liability or obligation on Anubis in any way.” Selig was not a recipient of this letter and there is no evidence she was ever aware of it. Anubis does not explain how this letter concerning a potential loan that never occurred between two unrelated entities could create an implied obligation owed by Selig. –29– not fabricate promise implied by law for cash payment parties neither expected nor

agreed upon).

Finally, it is elementary in the law governing quantum meruit that no recovery

can be had for preliminary services that are performed with a view to obtaining

business through a hoped-for contract. Id. at 577. “Where preliminary services are

conferred for business reasons, without the anticipation that reimbursement

will directly result, but rather, with the expectation of obtaining a hoped-for contract

and incidental to continuing negotiations relating thereto, quasi-contractual relief is

unwarranted.” Id. Quantum meruit relief may not be obtained where the claimant

did not contemplate compensation at the time the services were rendered or the

defendant could not have reasonably believed the plaintiff expected compensation.

Id. at 577–78.

Anubis relies on the Texas Supreme Court’s opinion in Vortt Exploration Co.

v. Chevron U.S.A., Inc., 787 S.W.2d 942 (Tex. 1990), to argue that quantum meruit

relief can be based on the expectation of a future contract. In that case, the supreme

court concluded that Chevron had sufficient notice that Vortt expected to be

compensated for confidential information it provided Chevron when both parties

understood the information was being disclosed based on the expectation of it being

used as part of a joint operating agreement. Id. at 945. Anubis contends it is

similarly entitled to quantum meruit relief because it furnished confidential

information to Selig with the expectation that she and Anubis would enter into a

–30– transactional agreement. As this Court has stated, however, Vortt was decided on

the narrow issue of sufficient notice only. Peko, 800 S.W.2d at 579. Vortt does not

alter longstanding law that no quantum meruit recovery may be obtained based on

services performed with a view toward obtaining a hoped-for contract.

Unlike the facts presented in Vortt, Anubis has presented no evidence that

Selig was reasonably notified that Anubis expected her to compensate it for the

information it provided or that the information was disclosed to her based on the

understanding that an agreement between them was certain to occur. Most of the

alleged confidential information was disclosed to Selig on January 10, well before

any discussions about working together on the Downslope project began. It was not

until more than two weeks later that Anubis reached out to Selig to ask if she was

interested in discussing the possibility of working with Anubis on Downslope. It

was at this point that Anubis disclosed the remaining information and stated “If you

are interested, let us know.” At the time the information was disclosed, therefore,

there was clearly no understanding between the parties that an agreement to work

together was expected. Indeed, the NDA drafted by Anubis notified Selig of the

opposite – that neither party should expect a transactional agreement to necessarily

occur based on the parties’ discussions. We conclude the trial court properly granted

summary judgment on Anubis’s claim for quantum meruit.

–31– III. Breach of Fiduciary Duty

In contending the trial court erred in granting summary judgment on its claim

for breach of fiduciary duty, Anubis first argues that Selig failed to move for

summary judgment on its claim that Selig owed it a fiduciary duty based on the

parties having formed a partnership. The trial court’s order granting summary

judgment on Anubis’s claim for breach of fiduciary duty was based on Selig’s

second motion for summary judgment. In that motion, Selig stressed that, even

though Anubis referred to her as a partner, “she never agreed to be anyone’s partner”

and “[s]he never partnered with Anubis.” She further stated that the letter of intent

drafted by Anubis “was not even close to being a partnership agreement” and, even

if it was, the agreement was never executed. In the portion of the motion specifically

addressing Anubis’s fiduciary duty claims, Selig summarized the history of the

parties’ business dealings, including the fact that she never executed the letter of

intent, and argued “there is no foundation from which the court could recognize a

fiduciary duty on these facts.” We conclude Selig’s motion sufficiently challenged

Anubis’s assertion that Selig had formed a partnership with Anubis giving rise to a

fiduciary duty.

Anubis next argues it presented sufficient evidence to create a fact issue as to

whether the parties created a partnership. Specifically, Anubis contends it presented

evidence of the factors indicating the creation of a partnership under section

152.052(a) of the Texas Business Organizations Code. See TEX. BUS. ORGS. CODE

–32– ANN. § 152.052(a). These factors are irrelevant, however, where the parties have

agreed that no binding or enforceable obligations will be created unless certain

conditions are met. See Energy Transfer Partners, L.P. v. Enter. Prods. Partners,

L.P., 593 S.W.3d 732, 741 (Tex. 2020). Such an agreement to not be bound absent

the specified conditions is ordinarily conclusive on the issue of partnership

formation. Id.

In this case, Selig and Anubis agreed they were not obligated to work together

on any transaction unless both parties signed a formal, written transactional contract.

It is undisputed that this did not occur. Although performance of a condition

precedent to forming a partnership can be waived, in determining whether such

waiver has occurred, we consider only evidence directly tied to the condition

precedent, and not the factors relevant to partnership creation set out in section

152.052(a). Id. As discussed above, the evidence conclusively shows Selig did not

waive her right to require a signed contract before being obligated to work with

Anubis. Accordingly, Selig negated the creation of a partnership as a matter of law.

See id. Anubis asserts no other basis upon which Selig would owe a fiduciary duty

to Anubis. Accordingly, we conclude the trial court properly granted summary

judgment in favor of Selig on this claim.

IV. Fraud and Promissory Estoppel

In its final challenge to the summary judgment, Anubis argues the trial court

erred in dismissing its claims for fraud and promissory estoppel because it presented

–33– evidence that Anubis forewent searching for other potential funding partners based

on alleged misrepresentations made by Selig. The statements Anubis contends it

relied upon were: (1) Selig’s request for permission to send the Downslope script to

her industry contacts; (2) Selig’s emails to her contacts stating that she and Anubis

were “on the hunt” for funding; (3) Selig’s email expressing concern that she not

“get left in the dust” if she helped Anubis find funding or funded the movie herself;

(4) Selig’s email stating that, if she helped Anubis raise capital, she expected

compensation equal to that being received by Anubis; and (5) Selig’s emails stating

that, after meeting independently with Russell, Lanning, and Hobbs, she was going

to “get this funded” and she was willing to meet with Anubis to “talk about how this

gets structured.” Anubis argues that Selig’s “expressed enthusiasm for partnering

on the project” induced it to “not solicit other funding sources to which it had

access.”

A central element to both fraud and promissory estoppel is detrimental

reliance. Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 558 (Tex. App.—San

Antonio 1998, no pet.). To support recovery, such reliance must be both reasonable

and justified. Id. Reliance is justified only when a promise is sufficiently specific

and definite that it is reasonable to rely on it as a commitment to future action. Davis

v. Tx. Farm Bureau Ins., 470 S.W.3d 97, 108 (Tex. App.—Houston [1st Dist.] 2015,

no pet.). Neither statements of hope nor expressions of expectations can support

reasonable reliance. Esty v. Beal Bank, S.S.B., 298 S.W.3d 280, 305 (Tex. App.—

–34– Dallas 2009, no pet.). We will not create a contract based on estoppel where none

existed before. Gillum v. Republic Health Corp., 778 S.W.2d 558, 570 (Tex. App.—

Dallas 1989, no pet.).

None of the statements Anubis points to constitutes a specific and definite

promise by Selig to partner with Anubis. Even taken together, they demonstrate

nothing more than engagement in the discussions referred to in the NDA that could

potentially lead to a signed transactional contract. “Expressed enthusiasm” cannot

take the place of a specific and definite promise upon which Anubis could have

justifiably relied. See Montgomery Cty. Hosp. Dist. v. Brown, 965 S.W.2d 501, 503

(Tex. 1998) (only definite promises, not vague assurances, can support justifiable

reliance); see also Hui Ye v. Xiang Zhang, No. 4:18-cv-4729, 2020 WL 2521292, at

*6–7 (S.D. Tex. May 15, 2020). This is particularly true given the NDA’s provision

that either party could opt out of going forward with the transaction at any point prior

to signing a transactional agreement even if the other party took actions in

anticipation that a written transactional agreement would occur. Cf. Davis, 470

S.W.3d at 109 (plaintiff could not justifiably rely on unaccepted settlement offer that

could be withdrawn at any time as basis for not filing action before limitations period

expired). Anubis’s choice to not solicit other funding partners was made at its own

peril. Id.

In addition, it must be noted that Anubis was brought in as an investor in the

Downslope project in October 2013, but did not begin talking to Selig until January

–35– 2014. It was not until January 27 that Brownlee began actual discussions with Selig

about Downslope and suggested that the parties enter into a transactional contract.

On February 3, Brownlee stated that he understood if Selig did not want to continue

with the project and, on February 5, Brownlee asked Selig if she was still interested

in working with them. After sending that inquiry, Brownlee informed Philco that

Anubis’s agreement to fund Downslope was “not contingent on [Selig’s]

involvement.” The record contains no communications between Anubis and Selig

after February 5. Three weeks later, Philco terminated its relationship with Anubis

for failure to provide proof that it could supply the promised funds. Therefore, of

the almost five months Anubis was involved in the Downslope project, it was in

discussions with Selig for only slightly more than one week. The content of those

discussions clearly presumes that Selig might not go forward with the project. We

conclude Selig established there was no reasonable or justifiable reliance by Anubis

as a matter of law and the trial court properly granted summary judgment on

Anubis’s claims for fraud and promissory estoppel.

Special Appearance

In its second issue, Anubis contends the trial court erred in granting the special

appearance filed by Lanning and Hobbs and dismissing its claims against them for

lack of jurisdiction. Anubis’s first amended petition alleged the trial court had

personal jurisdiction over Lanning and Hobbs because they (1) made

misrepresentations regarding Philco’s rights and interests in Downslope, (2) worked

–36– with Anubis in connection with the Downslope project, in part, because of Anubis’s

presence in Texas, (3) agreed to shoot the film at a Texas location through a Texas-

based studio in Dallas County and prepared budgets detailing a Texas-focused

production, and (4) made intentional misrepresentations to Anubis in Texas with the

intent that Anubis rely on them. Anubis further alleged that, even if the actions at

issue were conducted by Lanning and Hobbs as agents for Philco, all of Philco’s

contacts could be attributed to Lanning and Hobbs because Philco was their alter ego

and the men used Philco to perpetrate a fraud in Texas. Anubis sought a declaratory

judgment on its alter ego allegation and asserted claims against Lanning and Hobbs

for unjust enrichment, breach of the letter of intent, fraud, and fraudulent transfer.

Lanning and Hobbs filed a special appearance, supported by affidavits,

contending they had insufficient contacts with Texas to support either general or

specific jurisdiction of the trial court over them and Anubis had no evidence to

support its jurisdictional allegations. On appeal, Anubis does not contend the trial

court had general jurisdiction over Lanning or Hobbs. It contends only that the trial

court had specific jurisdiction based on Philco’s business dealings with Anubis,

including the NDA and letter of intent, which were attributable to Lanning and

Hobbs based on an alter ego theory of liability. Anubis further asserts Lanning and

Hobbs are independently liable for their own fraudulent and tortious acts.

Whether a trial court has personal jurisdiction over a nonresident defendant is

a question of law we review de novo. Old Republic Nat’l Title Ins. Co. v. Bell, 549

–37– S.W.3d 550, 558 (Tex. 2018). To resolve this question, however, the trial court

frequently must resolve preliminary questions of fact. BMC Software Belgium, N.V.

v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). If, as here, the trial court does not

issue findings of fact and conclusions of law with its special appearance ruling, all

findings of fact necessary to support the ruling that are supported by the evidence

are implied. Id. at 795. When the appellate record includes the reporter’s and clerk’s

records, these implied findings are not conclusive and may be challenged for legal

and factual sufficiency on appeal. Id. Where jurisdictional facts are undisputed, we

need not consider any implied findings of fact and consider only the legal question

whether the undisputed facts establish jurisdiction. Old Republic, 549 S.W.3d at

558.

Anubis does not dispute that the alleged agreements and business dealings

made the basis of its claims against Lanning and Hobbs were between Anubis and

Philco. Anubis asserts that Philco’s contacts with Texas were sufficient to give rise

to specific jurisdiction and are attributable to Lanning and Hobbs on an alter ego

theory of liability. Even assuming Philco’s contacts were sufficient to subject it to

jurisdiction in this state, we conclude Anubis failed to meet its burden to show an

alter ego relationship.

“Jurisdiction over an individual cannot, as a general rule, be based upon

jurisdiction over a corporation.” Wilmington Trust, Nat’l Ass’n v. Hsin-Chi-Su, 573

S.W.3d 845, 855 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The party

–38– seeking to pierce the corporate veil for jurisdictional purposes has the burden to

present evidence demonstrating the alter ego relationship. BMC Software 83 S.W.3d

at 798. An individual’s status as an officer, director, or shareholder of an entity,

standing alone, is not enough to support an alter ego finding. Wilmington Trust, 573

S.W.3d at 855. The plaintiff must prove the individual exercises atypical control

over the internal business operations and affairs of the corporation that is

inconsistent with his role as owner, director, or shareholder. Id. Factors relevant to

the determination of an alter ego relationship for jurisdictional purposes include the

degree to which corporate and individual property have been kept separate, the

amount of financial interest, ownership, and control the individual maintains over

the corporation, and whether the corporation has been used for personal purposes.

Id. Ultimately, for a court to find personal jurisdiction under an alter ego theory, the

evidence in the record must show that the individual and the entity cease to be

separate so that the corporate fiction should be disregarded to prevent fraud or

injustice. BMC Software, 83 S.W.3d at 799. A conclusory allegation that a

nonresident defendant used a corporation “as a sham to perpetrate fraud” is

insufficient to pierce the veil for jurisdictional purposes where the plaintiff does not

plead or otherwise offer evidence of any facts to establish how a defendant allegedly

used the corporation to perpetrate fraud. Booth v. Kontomitras, 485 S.W.3d 461,

483 (Tex. App.—Beaumont 2016, no pet.).

–39– The primary evidence submitted by Anubis on the alter ego issue was

deposition testimony by Lanning about a company formed by one of his sons to

produce films called ForLan Underground. ForLan Underground was originally

named Philco Film Productions, Ltd. (“PFP”) and, from March 24, 2015 to February

14, 2018, PFP had no employees and no bank account. Lanning stated PFP was

“literally a company name” that “remained dormant until it was required to do

something for my son.” When asked why the company was given a name similar to

Philco’s, Lanning responded that “the hope was that we would be successful in the

same way as one hoped that Philco Films, Limited would be successful.” Lanning

continued by stating “the opposite” occurred and “[i]t was a dormant company that,

in the end, didn’t function.”

On appeal, Anubis attempts to use this testimony as evidence that Philco was

a “meaningless paper entity.” None of this testimony, however, concerned Philco.

It concerned only PFP. Anubis points to a reference to “Philco Film Productions,

Ltd.” in the 2013 contract between Philco and SCTVA as evidence of “a failure to

maintain corporate separateness” between PFP and Philco. When asked about this

reference, Lanning testified it was a typo and the contract shows he signed on behalf

of Philco. Additionally, the record suggests that PFP was not created until 2015.

Even if PFP existed in 2013, this evidence would go to show only a potential alter

ego relationship between Philco and PFP, not Philco and Lanning or Hobbs.

–40– Finally, Anubis relies on Lanning’s testimony that he and Hobbs used Philco

as “the vehicle” to seek financing for another Kubrick Film, and that he was

authorized to represent Philco as a producer despite no longer being an officer of the

company. Anubis argues that this testimony, “with no mention of corporate

formalities,” demonstrates an alter ego relationship. Lanning’s “failure to mention”

corporate formalities does not constitute proof that such formalities did not exist,

particularly when the deposition evidence Anubis submitted as proof contained no

questions posed to Lanning regarding corporate formalities. Nor does this testimony

show that Lanning or Hobbs used Philco for personal purposes. Indeed, Anubis

presented no evidence whatsoever regarding Philco’s operations. We conclude

Anubis failed to meet its burden to show an alter ego relationship such that Philco’s

alleged contacts with Texas could be attributed to Lanning and Hobbs.

This does not end our analysis, however. As Anubis correctly notes, even if

all of a corporate officer’s or employee’s contacts were performed in a corporate

capacity, the agent is not shielded from the exercise of specific jurisdiction if he

engaged in tortious or fraudulent conduct for which he may be held personally liable.

Tabacinic v. Frazier, 372 S.W.3d 658, 668 (Tex. App.—Dallas 2012, no pet.). In

this case, Anubis asserted three claims sounding in tort against Lanning and Hobbs:

unjust enrichment, fraud, and fraudulent transfer. But, as to each of these causes of

action, Anubis provides little, if any, explanation as to how these claims arise from

Lanning’s or Hobbs’s alleged contacts with Texas. For each claim, Anubis merely

–41– states “This cause of action is related to [Anubis’s] allegations concerning The

Downslope and Lanning and Hobbs’s intentional acts directed toward the forum.”

Specific jurisdiction requires us to analyze jurisdictional contacts on a claim-by-

claim basis. Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex.

2013). Anubis makes no argument, and cites no authority, to show how the trial

court had jurisdiction over its individual tort claims. When a party fails to adequately

brief a complaint, the issue is waived on appeal. Washington v. Bank of New York,

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

Furthermore, specific jurisdiction is not established merely because a

nonresident “directed a tort” at the forum state. Michiana v. Easy Livin' Country,

Inc. v. Holten, 168 S.W.3d 777, 790–92 (Tex.2005). Nor is injury to a forum

resident a sufficient connection to invoke jurisdiction. TV Azteca v. Ruiz, 490

S.W.3d 29, 42 (Tex. 2016). Our analysis looks to the defendant’s contacts with the

forum state itself, not the defendant’s contacts with persons who reside there. Id.

The defendant’s conduct must connect him to the forum in a meaningful way. Id.

For a Texas court to exercise specific jurisdiction over a defendant, the defendant's

purposeful contacts with the state must be substantially connected to the operative

facts of the litigation or form the basis of the cause of action. Old Republic, 549

S.W.3d at 559–60.

Anubis’s unjust enrichment claim, like its quantum meruit claim against Selig,

appears to be based upon the introduction of Selig to Philco. The evidence shows

–42– that it was Anubis’s choice to initiate discussions with Selig, a California resident,

and it was Selig who first approached Lanning and Hobbs. That Lanning and Hobbs

chose to respond to an unsolicited invitation to do business with a California resident

is not conduct with a meaningful connection to the State of Texas.

In its brief, Anubis points to a single alleged misrepresentation as the basis

for the trial court’s jurisdiction over its fraud claim. According to Anubis, Lanning

and Hobbs misrepresented that Philco had the rights to produce Downslope.

Anubis’s own evidence submitted in response to the special appearance included

documents showing the Kubrick estate authorized Philco, Lanning, and Hobbs to

“seek arrangements” for the production of Downslope. No party appears to dispute

that Philco had the capacity to enter into contracts for the production of Downslope

and Anubis’s primary claims against Lanning and Hobbs assume that it did.

Accordingly, Anubis has failed to demonstrate how this alleged “misrepresentation”

is substantially connected to the operative facts of the litigation or forms the basis of

a cause of action.

In its fraudulent transfer claim, Anubis alleged that, upon information and

belief, Philco orchestrated the transfer of its rights in the Downslope project to PFP

and this transfer was made with the intent to defraud Anubis. Anubis makes no

argument to show how the alleged transfer of an asset from one European company

to another, assuming it occurred, creates sufficient contact with the State of Texas

to make Lanning and Hobbs subject to jurisdiction. See Ruiz, 490 S.W.3d at 43

–43– (courts cannot base specific jurisdiction on fact that defendant knows brunt of injury

will be felt by particular resident in forum state). Because Philco’s contacts cannot

be attributed to Lanning and Hobbs, and Anubis failed to show sufficient

jurisdictional contacts giving rise to its tort claims against the men, we conclude the

trial court did not err in granting Lanning and Hobbs’s special appearance.

Motion for Sanctions

In her cross-appeal, Selig contends the trial court abused its discretion in

refusing to grant her motion for sanctions against Anubis and its counsel. Selig

argues that rule 13 of the Texas Rules of Civil Procedure mandates an award of

sanctions because Anubis and its counsel knew the claims asserted against her were

groundless when they were filed and this suit was brought in bad faith and solely for

the purpose of harassment.

Rule 13 authorizes the imposition of sanctions against an attorney, a party, or

both, who filed a pleading that is: (1) groundless and brought in bad faith; or (2)

groundless and brought to harass. See TEX. R. CIV. P. 13. Courts presume that

pleadings, motions, and other papers are filed in good faith, and the party moving

for sanctions has the burden of overcoming this presumption. GTE Commc’n Sys.

Corp. v. Tanner, 856 S.W.2d 725, 731 (Tex. 1993). A pleading is “groundless” if it

has no basis in law or fact and is not warranted by a good faith argument for the

extension, modification, or reversal of existing law. TEX. R. CIV. P. 13; Thielmann

v. Kethan, 371 S.W.3d 286, 294 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

–44– “Bad faith” requires the conscious doing of a wrong for a dishonest, discriminatory,

or malicious purpose. Stites v. Gillum, 872 S.W.2d 786, 794–96 (Tex. App.—Fort

Worth 1994, writ denied). A party acts in bad faith if he has been put on notice that

his understanding of the facts may be incorrect and he does not make reasonable

inquiry before pursuing the claim further. Robson v. Gilbreath, 267 S.W.3d 401,

407 (Tex. App.—Austin 2008, pet. denied). Bad faith does not exist when a party

merely exercises bad judgment or is negligent. Thielmann, 371 S.W.3d at 294. To

“harass” means to annoy, alarm, and verbally abuse another person. Id.

In deciding whether a pleading was filed in bad faith or for the purpose of

harassment, the trial court is required to consider the acts or omissions of the

represented party or counsel, not merely the legal merit of a pleading or motion.

Parker v. Walton, 233 S.W.3d 535, 540 (Tex. App.—Houston [14th Dist.] 2007, no

pet.). The court examines the signer’s credibility, taking into consideration all the

facts and circumstances available at the time of the filing, and it may consider the

entire history of the case before it. Home Owners Funding Corp. of Am. v.

Scheppler, 815 S.W.2d 884, 889 (Tex. App.—Corpus Christi–Edinburg 1991, no

writ); Great W. Drilling, Ltd. v. Alexander, 305 S.W.3d 688, 698 (Tex. App.—

Eastland 2009, no pet). Ultimately, the trial court is in the best position to determine

whether sanctionable conduct has occurred and a decision not to impose sanctions

generally will not be reversed for an abuse of discretion. See Manning v. Enbridge

Pipelines (East Tx.) L.P., 345 S.W.3d 718, 728 (Tex. App.—Beaumont 2011, pet.

–45– denied); Allstate Ins. Co. v. Garcia, No. 13-02-092-CV, 2003 WL 21674766, at *2

(Tex. App.—Corpus Christi–Edinburg 2003, no pet.) (mem. op.).

Although Selig was successful in having Anubis’s claims against her

dismissed, she made no showing that Anubis made statements in its pleadings that

it knew to be false. The parties simply had different interpretations of the legal effect

of the facts. Anubis has made extensive arguments to support its positions and, while

we have concluded those arguments are without merit, we do not view them as

frivolous.

Selig points to an email exchange between Anubis and CMA Entertainment

in July 2014 to show that the purpose of the lawsuit was solely to harass her. In the

email exchange, Brownlee and Troy Allen with CMA discussed how to

communicate with Selig and Philco about the Downslope Project following Philco’s

termination of its relationship with Anubis. Brownlee stated he thought it would be

good for CMA to “weigh in officially” on the situation to show that Anubis and

CMA are “communicating and acting as one party.” Brownlee also stated he wanted

a paper trail. In response to a question from Allen regarding whether CMA should

respond to an email chain on which they had been blind copied, Brownlee responded,

“I actually think you should write an entirely new email. This way they will have

multiple points of contact to deal with and not just one party. Let’s make this as

difficult as possible for them.”

–46– Selig focuses on the last sentence in this exchange to argue that the sole

purpose of this lawsuit was to make things “as difficult as possible” for her. The

trial court was within its discretion, however, to conclude that Brownlee’s statement

did not reflect a belief that Anubis had no valid claims against Selig, but rather his

belief that it did, combined with a desire to force Selig and Philco to explain their

actions to multiple parties. Sanctions should only be assessed “in those egregious

situations where the worst of the bar uses our honored system for ill motive without

regard to reason and the guiding principles of the law.” Thielemann, 371 S.W.3d at

295 (quoting Dyson Descendant Corp. v. Sonat Expl. Co., 861 S.W.2d 942, 951

(Tex. App.—Houston [1st Dist.] 1993, no writ). Based on the record before us, we

cannot conclude the trial court abused its discretion in refusing to award sanctions.

We affirm the trial court’s judgments and orders.

/Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE

190817F.P05

–47– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ANUBIS PICTURES, LLC AND On Appeal from the 162nd Judicial CMA FILMS, LLC, Appellants District Court, Dallas County, Texas Trial Court Cause No. DC-17-17579. No. 05-19-00817-CV V. Opinion delivered by Justice Reichek. Justice Pedersen, III LAUREN SELIG, SHAKE & BAKE participating. PRODUCTIONS, STEPHEN LANNING, AND PHILIP HOBBS, Appellees

In accordance with this Court’s opinion of this date, we AFFIRM (1) the judgments of the trial court dismissing the claims made by ANUBIS PICTURES, LLC and CMA FILMS, LLC against LAUREN SELIG and SHAKE & BAKE PRODUCTIONS, (2) the order of the trial court granting the special appearances of STEPHEN LANNING and PHILIP HOBBS, and (3) the order of the trial court denying the motion for sanctions brought by LAUREN SELIG and SHAKE & BAKE PRODUCTIONS against ANUBIS PICTURES, LLC and its counsel.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered March 3, 2021

–48–