Brian Shanklin and Todd Rimmer v. Bassoe Offshore (USA), Inc., Mike Smith, and Jonathan Fairbanks

415 S.W.3d 311, 2013 WL 1972199, 2013 Tex. App. LEXIS 5852
CourtCourt of Appeals of Texas
DecidedMay 14, 2013
Docket01-12-00563-CV
StatusPublished
Cited by3 cases

This text of 415 S.W.3d 311 (Brian Shanklin and Todd Rimmer v. Bassoe Offshore (USA), Inc., Mike Smith, and Jonathan Fairbanks) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brian Shanklin and Todd Rimmer v. Bassoe Offshore (USA), Inc., Mike Smith, and Jonathan Fairbanks, 415 S.W.3d 311, 2013 WL 1972199, 2013 Tex. App. LEXIS 5852 (Tex. Ct. App. 2013).

Opinions

OPINION

TERRY JENNINGS, Justice.

Appellants, Brian Shanklin and Todd Rimmer, challenge the trial court’s partial summary judgment rendered against them in their suit against appellees, Bassoe Offshore (USA) Inc. (“Bassoe”), Mike Smith, and Jonathan Fairbanks, for breach of contract, fraud, breach of fiduciary duty, misappropriation of trade secrets, tortious interference, and violations of the Texas Real Estate License Act (“RELA”).1 In three issues, Shanklin and Rimmer contend that the trial court erred in granting Bassoe partial summary judgment on their RELA claim on the ground that they did not have standing to assert the claim.

We affirm.

Background

In their second amended petition, Shanklin and Rimmer allege that in April 2006, Shanklin received a presentation from Pride International (“Pride”), wherein Pride announced that it would be willing to sell certain “operational and idle offshore rigs in the United States Gulf of Mexico, although Pride was not actively marketing those assets.” Shanklin and Rimmer were interested in the assets and through October 2006 conducted due diligence on Pride’s rigs, consisting of “12 platform drilling and workover rigs and related equipment.” Shanklin and Rim-mer intended to form a new company, Contender Offshore Services (“Contender”), and to raise “up to $60 million in capital” to acquire Pride’s rigs in the Gulf of Mexico.

Shanklin and Rimmer contacted Bassoe representatives Fairbanks and Smith regarding whether they would be able to assist in their negotiations with Pride. Fairbanks and Smith represented that Bassoe was “interested in [the] engagement,” and they agreed that any information shared with them by Shanklin and Rimmer “would be held in the strictest of confidence.” Eventually, Bassoe represented that it was willing to raise the [314]*314capital for the purchase and expected a broker’s fee of two to three percent of the total transaction price, but Bassoe requested an equity position in Contender and a seat on Contender’s board of directors. Shanklin and Rimmer reached an agreement with Bassoe to “pursue the acquisition on an exclusive basis.” Thus, Shanklin and Rimmer “terminated their discussions with other investment bankers and lenders and dealt exclusively with Bassoe.”

In late January 2007, Smith notified Pride’s director of business planning, Chris Weber, that Bassoe was interested in purchasing the Gulf of Mexico rigs. From February 14 to February 19, 2007, Smith collaborated with Shanklin and Rim-mer to prepare an offer to Pride, but on February 22, 2007, Smith informed Shank-lin and Rimmer that Weber was “busier than before” and “did not expect the negotiations to go rapidly.” From March to September 2007, Smith repeatedly told Shanklin that “he had communicated the Contender proposals to Pride’s representatives” but “Pride was busy on unrelated deals,” causing delays in the negotiation. However, in early September, Shanklin asked Smith several times about a rumor that Pride was considering an offer from a third party, Blake International, but Smith did not respond.

On May 27, 2008, Pride completed the sale of the Gulf of Mexico rigs to Blake International. During a deposition, one of Bassoe’s lawyers admitted that Bassoe had acted as a broker for Blake International in its transaction with Pride. Shanklin and Rimmer asserted that Bassoe, “while purporting to represent” them, “was actively promoting an acquisition proposal for the same Pride assets on behalf of one or more other clients, ultimately doing so on behalf of Blake International.” They further asserted that Bassoe “affirmatively represented that Pride was too busy” to negotiate so as to “induce” Shanklin and Rimmer “not to pursue negotiations with Pride independently.”

Shanklin and Rimmer brought several breach-of-contract and fraud claims, in addition to a claim under RELA. Specifically regarding their claim under RELA, Shanklin and Rimmer assert that “Bassoe, Smith, and/or Fairbanks acted as brokers in connection with their engagement.” They also assert that Fairbanks, the president of Bassoe at the time of the negotiations, “admitted that neither Bassoe nor any of its principles were licensed brokers in Texas,” but that Bassoe “acted as a broker in a transaction that involved real estate.” See Tex. Occ.Code Ann. § 1101.754(a) (Vernon 2012). They specifically seek “an amount of not less than $1,320,000.00 and not more than $3,960,000” for the violation of RELA.

In their summary-judgment motion, Bassoe, Smith, and Fairbanks asserted that from 2006 to 2007, they presented Shanklin and Rimmer’s proposals to Pride for the purchase of the Gulf of Mexico rigs. On February 20, 2007, Bassoe presented an offer to Pride, but the offer “expired by its own terms” on February 28, 2008. Pride also “confirmed it did not wish to sell rigs” to Shanklin and Rimmer. Bas-soe presented Pride an offer from Blake International six months later, which was eventually accepted, and Bassoe received a commission of two percent of the transaction price. Bassoe, Smith, and Fairbanks argued that Shanklin and Rimmer’s claims for fraud lacked merit because any obligations to Shanklin and Rimmer expired along with the final bid, no evidence existed of a fiduciary relationship, Bassoe provided no valuable services, Bassoe did not reveal any confidential information, and Shanklin and Rimmer’s proposed damages “amount[] to nothing more than rank [315]*315speculation.” Specifically regarding their claim under RELA, Bassoe argued:

(f) Plaintiffs lack standing to assert a private claim under the Texas Real Estate Licensing Act. Plaintiffs are not “aggrieved parties” within the meaning of the Act because Plaintiffs cannot establish that they ever paid Bassoe any commission or consideration for their services, as required under the act[.]

In their response to Bassoe’s summary-judgment motion, Shanklin and Rimmer asserted that they presented evidence precluding summary judgment on their claims for breach of contract, fraud, breach of fiduciary duty, tortious interference, and misappropriation of trade secrets. Regarding their claim under RELA, Shanklin and Rimmer asserted that Bassoe, through Smith and Fairbanks, acted as their brokers despite the fact that Smith and Fairbanks were not licensed brokers in Texas. Shanklin and Rimmer attached to their motion the depositions of Smith and Fairbanks, wherein both testified that they were not licensed as real estate brokers.

After a hearing, the trial court granted Bassoe summary judgment on Shanklin and Rimmer’s claim for fraudulent inducement and its claim under RELA, but it denied Bassoe summary judgment on the remaining claims. The trial court then conducted a bench trial on Shanklin and Rimmer’s remaining claims, and it ordered that they recover $2000 from Bassoe. After Shanklin and Rimmer asked the trial court to make findings of fact and conclusions of law, the trial court made its findings and conclusions and later signed an amended final judgment, ordering that Shanklin and Rimmer take nothing from Bassoe. The trial court found that:

12. Shanklin spent a considerable amount of time developing a Memorandum outlining a plan to acquire the rigs, to create the management team, and to create the financial projections. This Memorandum was shared with various individuals.

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Bluebook (online)
415 S.W.3d 311, 2013 WL 1972199, 2013 Tex. App. LEXIS 5852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brian-shanklin-and-todd-rimmer-v-bassoe-offshore-usa-inc-mike-smith-texapp-2013.