NUMBER 13-14-00017-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CARLOS MACIAS, Appellant,
v.
JULIAN GOMEZ ET.AL., Appellees.
On appeal from the County Court at Law No. 8 of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Chief Justice Valdez Appellant, Carlos Macias, appeals the trial court’s summary judgment in favor of
appellees, Julian Gomez and the Gomez Law Firm PLLC (collectively, “Gomez”). By
three issues, Macias contends the trial court erred in granting the summary judgment because: (1) there were genuine issues of material fact; (2) defendants did not meet their
burden of proof; and (3) Macias did not waive his claim. By his fourth issue, Macias
contends that appellees did not get a ruling on their objection to his affidavit, and even if
the trial court sustained the objections, “the [sham] doctrine did not preclude Macias’s
testimony or negate the remaining evidence.”1 We affirm.
I. BACKGROUND
According to Macias, he hired Gomez to represent him in a separate court
proceeding involving a business he co-owed with others not involved in this dispute,
Border Furniture, LLC Inc., (the “Border Furniture Suit”). The Border Furniture Suit was
resolved by settlement and was dismissed. As payment to Gomez for attorney’s fees in
the Border Furniture Suit, Macias assigned a one-percent interest in Border Furniture to
Julian C. Gomez and Kerri S. Gomez Children’s Trust.
According to Gomez, after Macias made the assignment in Border Furniture,
Gomez learned that Macias may have engaged in conduct that negatively affected the
other owners of Border Furniture. Gomez then withdrew from the representation of
Macias, and Macias authored and signed a waiver of a conflict of interest (the “waiver”).
The waiver stated, in pertinent part:
As per our discussion, I have been explained by your firm that you will continue with your representation of [my fellow Border Furniture business owners] in this matter and I have agreed to waive any conflict of interest that may exist with you and your firm in the matter including but not limited to any conflict that might arise if you or your clients file suit against me or any of my entities.[2]
1 We have reorganized and renumbered Macias’s issues for purposes of our analysis. 2 Neither party has explained what was meant by the term “in this matter” in the waiver.
2 According to the parties, after Macias signed the waiver, the Trust sued Macias
alleging claims of breach of contract, fraud, and breach of fiduciary duty in relation to
Border Furniture in a separate cause of action. Macias then sued Gomez in this cause
claiming that Gomez breached a fiduciary duty. Gomez moved for traditional and no
evidence summary judgment, which the trial court granted, without specifying the
grounds. This appeal followed.
III. BREACH OF FIDUCIARY DUTY3
By his first issue, Macias contends that the trial court erred in granting Gomez’s
motion for summary judgment because there is evidence that Gomez obtained the
“conflict of interest waiver . . . in Macias’s business without full, open, and candid
disclosure.” We construe this argument as a claim that he produced evidence that Gomez
breached a fiduciary duty by failing to acquire the waiver prior to representing him in the
Border Furniture Suit because Gomez had a conflict of interest.4 Macias also claims that
Gomez acquired the waiver under a false pretense.
A. Acquisition of the Waiver Prior to Representation
3We will address Macias’s first and third issues together as he argues in both that he provided more than a scintilla of evidence raising an issue of material fact regarding the challenged elements of his breach of fiduciary duty claim. 4 This is the extent of Macias’s argument. Although Macias generally cites his affidavit as supporting his claim that fact issues exist, he does not specifically cite the evidence that raised a fact issue, which leaves us guessing what portions of the affidavit allegedly support his argument. See TEX. R. APP. P. 38.1(i).
Moreover, although Macias also argues that Gomez obtained the assignment without full, open, and candid disclosure, he has not explained why we should reverse the summary judgment on his claim of breach of fiduciary duty because the assignment of Macias’s business was obtained without full, open, and candid disclosure. See TEX. R. APP. P. 38.1(i). Thus, we will not address this assertion.
3 In the motion for summary judgment, Gomez claimed that there was no evidence
of a breach.5 See TEX. R. CIV. P. 166a(i); Timpte Inds., Inc. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009). Macias therefore had the burden to bring forth more than a scintilla of
evidence raising a question of material fact regarding the alleged breach. See TEX. R.
CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
Macias claimed in his petition that Gomez breached a fiduciary duty because
Gomez had a conflict of interest and failed to secure the waiver prior to representing
Macias in the Border Furniture Suit.6 As we understand his argument, Macias claims that
if Gomez knew prior to representing him that a conflict of interest existed, then he
breached his fiduciary duty by representing Macias without disclosing the conflict or
obtaining the waiver. Thus, in order to defeat the motion for summary judgment, Macias
must have provided evidence supporting his claim that Gomez knew of the conflict of
interest prior to representing him.
Macias provided no evidence that Gomez knew prior to representing him in the
Border Furniture Suit that a conflict of interest existed. Therefore, we conclude that no
fact issue existed regarding Macias’s claim that Gomez knew prior to representing him
that a conflict of interest existed.7 See King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
5The elements of a breach of fiduciary duty are (1) the existence of a fiduciary relationship; (2) a breach of a fiduciary duty; and (3) an injury to the plaintiff or benefit to the defendant as a result of the breach. See Heritage Gulf Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 650 (Tex. App.— Houston [14th Dist.] 2013, no pet.). 6 Specifically, Macias stated, “Defendant Julian Gomez represented Carlos Macias and his own father in [another cause], which involved litigation against other parties. Julian Gomez was in fact in a conflict of interest and did not secure, prior to the representation [of Macias], a conflict of interest waiver.” (Emphasis in original). 7In his affidavit, Macias claimed that Gomez knew of the conflict when Macias signed the waiver, which Macias stated occurred about one year after Gomez represented him in the Border Furniture Suit. This evidence supports the trial court’s implied finding that Julian learned of the conflict of interest after he
4 751 (Tex. 2003) (explaining that a no-evidence summary judgment is properly granted if
the respondent does not bring forth more than a scintilla of probative evidence to raise a
genuine issue of material fact).
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NUMBER 13-14-00017-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
CARLOS MACIAS, Appellant,
v.
JULIAN GOMEZ ET.AL., Appellees.
On appeal from the County Court at Law No. 8 of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Chief Justice Valdez Appellant, Carlos Macias, appeals the trial court’s summary judgment in favor of
appellees, Julian Gomez and the Gomez Law Firm PLLC (collectively, “Gomez”). By
three issues, Macias contends the trial court erred in granting the summary judgment because: (1) there were genuine issues of material fact; (2) defendants did not meet their
burden of proof; and (3) Macias did not waive his claim. By his fourth issue, Macias
contends that appellees did not get a ruling on their objection to his affidavit, and even if
the trial court sustained the objections, “the [sham] doctrine did not preclude Macias’s
testimony or negate the remaining evidence.”1 We affirm.
I. BACKGROUND
According to Macias, he hired Gomez to represent him in a separate court
proceeding involving a business he co-owed with others not involved in this dispute,
Border Furniture, LLC Inc., (the “Border Furniture Suit”). The Border Furniture Suit was
resolved by settlement and was dismissed. As payment to Gomez for attorney’s fees in
the Border Furniture Suit, Macias assigned a one-percent interest in Border Furniture to
Julian C. Gomez and Kerri S. Gomez Children’s Trust.
According to Gomez, after Macias made the assignment in Border Furniture,
Gomez learned that Macias may have engaged in conduct that negatively affected the
other owners of Border Furniture. Gomez then withdrew from the representation of
Macias, and Macias authored and signed a waiver of a conflict of interest (the “waiver”).
The waiver stated, in pertinent part:
As per our discussion, I have been explained by your firm that you will continue with your representation of [my fellow Border Furniture business owners] in this matter and I have agreed to waive any conflict of interest that may exist with you and your firm in the matter including but not limited to any conflict that might arise if you or your clients file suit against me or any of my entities.[2]
1 We have reorganized and renumbered Macias’s issues for purposes of our analysis. 2 Neither party has explained what was meant by the term “in this matter” in the waiver.
2 According to the parties, after Macias signed the waiver, the Trust sued Macias
alleging claims of breach of contract, fraud, and breach of fiduciary duty in relation to
Border Furniture in a separate cause of action. Macias then sued Gomez in this cause
claiming that Gomez breached a fiduciary duty. Gomez moved for traditional and no
evidence summary judgment, which the trial court granted, without specifying the
grounds. This appeal followed.
III. BREACH OF FIDUCIARY DUTY3
By his first issue, Macias contends that the trial court erred in granting Gomez’s
motion for summary judgment because there is evidence that Gomez obtained the
“conflict of interest waiver . . . in Macias’s business without full, open, and candid
disclosure.” We construe this argument as a claim that he produced evidence that Gomez
breached a fiduciary duty by failing to acquire the waiver prior to representing him in the
Border Furniture Suit because Gomez had a conflict of interest.4 Macias also claims that
Gomez acquired the waiver under a false pretense.
A. Acquisition of the Waiver Prior to Representation
3We will address Macias’s first and third issues together as he argues in both that he provided more than a scintilla of evidence raising an issue of material fact regarding the challenged elements of his breach of fiduciary duty claim. 4 This is the extent of Macias’s argument. Although Macias generally cites his affidavit as supporting his claim that fact issues exist, he does not specifically cite the evidence that raised a fact issue, which leaves us guessing what portions of the affidavit allegedly support his argument. See TEX. R. APP. P. 38.1(i).
Moreover, although Macias also argues that Gomez obtained the assignment without full, open, and candid disclosure, he has not explained why we should reverse the summary judgment on his claim of breach of fiduciary duty because the assignment of Macias’s business was obtained without full, open, and candid disclosure. See TEX. R. APP. P. 38.1(i). Thus, we will not address this assertion.
3 In the motion for summary judgment, Gomez claimed that there was no evidence
of a breach.5 See TEX. R. CIV. P. 166a(i); Timpte Inds., Inc. v. Gish, 286 S.W.3d 306, 310
(Tex. 2009). Macias therefore had the burden to bring forth more than a scintilla of
evidence raising a question of material fact regarding the alleged breach. See TEX. R.
CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
Macias claimed in his petition that Gomez breached a fiduciary duty because
Gomez had a conflict of interest and failed to secure the waiver prior to representing
Macias in the Border Furniture Suit.6 As we understand his argument, Macias claims that
if Gomez knew prior to representing him that a conflict of interest existed, then he
breached his fiduciary duty by representing Macias without disclosing the conflict or
obtaining the waiver. Thus, in order to defeat the motion for summary judgment, Macias
must have provided evidence supporting his claim that Gomez knew of the conflict of
interest prior to representing him.
Macias provided no evidence that Gomez knew prior to representing him in the
Border Furniture Suit that a conflict of interest existed. Therefore, we conclude that no
fact issue existed regarding Macias’s claim that Gomez knew prior to representing him
that a conflict of interest existed.7 See King Ranch, Inc. v. Chapman, 118 S.W.3d 742,
5The elements of a breach of fiduciary duty are (1) the existence of a fiduciary relationship; (2) a breach of a fiduciary duty; and (3) an injury to the plaintiff or benefit to the defendant as a result of the breach. See Heritage Gulf Props., Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 650 (Tex. App.— Houston [14th Dist.] 2013, no pet.). 6 Specifically, Macias stated, “Defendant Julian Gomez represented Carlos Macias and his own father in [another cause], which involved litigation against other parties. Julian Gomez was in fact in a conflict of interest and did not secure, prior to the representation [of Macias], a conflict of interest waiver.” (Emphasis in original). 7In his affidavit, Macias claimed that Gomez knew of the conflict when Macias signed the waiver, which Macias stated occurred about one year after Gomez represented him in the Border Furniture Suit. This evidence supports the trial court’s implied finding that Julian learned of the conflict of interest after he
4 751 (Tex. 2003) (explaining that a no-evidence summary judgment is properly granted if
the respondent does not bring forth more than a scintilla of probative evidence to raise a
genuine issue of material fact). Accordingly, the trial court properly granted Gomez’s
motion for summary judgment.8
B. False Pretense
Next, Macias claims that he produced evidence that Gomez breached a fiduciary
duty because Gomez acquired the waiver under a false pretense. Specifically, Macias
claims that Gomez told him, prior to signing the waiver, that he would not sue him or
represent anyone in a suit against him. However, we agree with Gomez that “the clear
purpose of the waiver, apparent on the face of the waiver, is to waive an existing or future
conflict of interest in the event of a future suit against Macias” by Gomez. Specifically,
the waiver states, that Macias “agreed to waive any conflict of interest that may exist with
[Gomez] in the [Border Furniture] matter including but not limited to any conflict that might
arise if [Gomez] or [Gomez’s] clients file suit against [Macias] or any of [his] entities.”
(Emphasis added.) Even assuming that Gomez knew that he would represent parties
adverse to Macias and sue Macias in a separate proceeding, on appeal, Macias does not
cite any authority supporting his argument, and we find none, and he does not explain
how Gomez breached a fiduciary duty when Macias signed the waiver. Thus, we are not
represented Macias in the Border Furniture Suit. 8 Moreover, in his summary judgment evidence, Julian attested that when he undertook the representation of Macias, he did not believe and “had no reason to believe that the representation presented a conflict of interest.” Macias did not bring forth any contrary evidence, and the trial court also granted Gomez’s motion for traditional summary judgment, wherein it argued that the evidence conclusively established that Julian did not know of any conflict of interest prior to representing Macias. Thus, the trial court properly granted Gomez’s motion for traditional summary judgment on that basis.
5 able to reverse the summary judgment on the basis of Macias’s “false pretense”
argument.9 We overrule Macias’s first issue.
IV. APPELLEES FAILED TO ESTABLISH ELEMENTS OF UNFAIRNESS
By his second issue, Macias contends that Gomez was required to prove the
following: (1) the questioned transaction was made in good faith, (2) for fair consideration,
and (3) after a full and complete disclosure of all material information to the principal.
Macias does not explain under what theory Gomez was required to prove the above
elements.10 Macias further states that Julian’s affidavit “says nothing about any
disclosure of facts surrounding the conflict of interest waiver.”
We conclude that this issue is inadequately briefed because Macias has not
provided any argument with citation to appropriate authorities explaining why Gomez had
such a burden.11 See TEX. R. APP. P. 38.1(i). Therefore, we cannot conclude that Gomez
had the burden to establish the above-listed elements.12 We overrule Macias’s second
issue.13
9 Gomez presented evidence that Macias authored the waiver himself. 10 Although Macias cites case law in this issue, this case law does not address why Gomez had the burden to prove these elements. However, the case law cited requires a finding of self-dealing. Thus, it appears that Macias may be arguing that Gomez engaged in self-dealing when he acquired the one- percent interest in Border Furniture as part of the fee agreement and should have informed him that he intended to sue Macias. However, Macias does not mention self-dealing in his brief. 11 We note that Macias did not allege self-dealing in his petition or in his response to Gomez’s motion for summary judgment. 12Moreover, regarding the fee agreement, in reply to Macias’s response to the motion for summary judgment, Gomez argued that the fee agreement was not a prohibited act as argued by Macias and that Macias had cited no authority supporting such a conclusion. Thus, the trial court may have granted summary judgment after concluding that the fee agreement was not a prohibited act. On appeal, Macias has not addressed this basis for the trial court’s granting summary judgment. 13Having found that the trial court properly granted Gomez’s motion for summary judgment, we need not address Macias’s fourth issue arguing that he did not waive his breach of fiduciary claim by signing the waiver. See TEX. R. APP. P. 47.4.
Also, by his fifth issue, Macias contends that the trial court did not rule on Gomez’s objections to
6 V. CONCLUSION
We affirm.
/s/ Rogelio Valdez ROGELIO VALDEZ Chief Justice
Delivered and filed the 29th day of December, 2015.
his affidavit as a sham. We need not address this issue as it is not dispositive of this appeal, and we have considered the affidavit for purposes of our analysis. See id.