Eil Sasson on Behalf of 78 Acres, LP and Inwood Partners, LP v. Andrew Schatte

• Court: Court of Appeals of Texas
• Decided: April 30, 2015
• Docket: 01-14-00633-CV
• Status: Published

Opinion

Opinion issued April 30, 2015

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00633-CV ——————————— ELI SASSON, ON BEHALF OF 78 ACRES, LP AND INWOOD PARTNERS, LP, Appellant V. ANDREW SCHATTE, MICHAEL SURFACE, TOWN & COUNTRY VENTURES, LLC, TOWN & COUNTRY VENTURES II, INC., THE KEYSTONE GROUP F/K/A TOWN & COUNTRY VENTURES, INC., HC 5815, LLC, DAVID BLUMHARDT, AND GERALD EVERSOLE, Appellees

On Appeal from the 189th District Court Harris County, Texas Trial Court Case No. 2010-08868

MEMORANDUM OPINION

Eli Sasson, on behalf of 78 Acres, LP and Inwood Partners, LP, appeals a

summary judgment in favor of Andrew Schatte, Michael Surface, Town & Country Ventures, LLC, Town & Country Ventures II, Inc., The Keystone Group f/k/a

Town & Country Ventures, Inc., HC 5815, LLC, David Blumhardt, and Gerald

Eversole. Sasson sued appellees for fraud, tortious interference, and conspiracy,

alleging that Eversole, a Harris County commissioner, was improperly influenced

by the remaining appellees to ensure that appellee Surface, instead of Sasson,

received an office space contract from Harris County. Appellees moved for

summary judgment on all of Sasson’s claims, and the trial court granted the

motions. We affirm.

Background

The bid process

In March 2005, Harris County issued a request for proposal (“RFP”) for the

purchase or lease of property to house its Juvenile Probation office, Public Health

and Environmental Services Clinic, and Women and Infant Care Clinic.

According to Sasson’s deposition testimony, which was submitted as summary-

judgment evidence, he was contacted by Pat Pollan of Yancey Hausman &

Associates, Inc., an independent broker, on behalf of Harris County. Pollan

requested that Sasson submit a proposal for Sasson’s property on Antoine Drive.

Sasson testified that he bought the property next door to his original property in

order to submit the proposal because the RFP required more square footage than he

originally owned.

2 Proposals were due by 3:00 p.m. on April 4, 2005. Sasson testified that he

arrived at Yancey Hausman’s office on time, but that the receptionist waited to

stamp his proposal until after 3:00. Sasson averred in his affidavit in opposition to

summary judgment that his proposal was rejected for being submitted late, but that

after he complained, Harris County restarted the bid process. Two proposals were

submitted in response to the first RFP–Sasson’s, and a proposal from HC 5815,

LLC, an entity from which Surface was entitled to receive all profits. According to

Sasson, he did not know that Surface was involved in the competing proposal

because his name did not appear on any of the proposal documents.

Sasson averred that he felt that Pollan had not given him a fair chance and

asked for and received assurances that Pollan would not be involved in the second

RFP. Harris County issued a second RFP, with a proposal deadline of October 24,

2005, to be run by the Harris County Purchasing Department instead of Yancey

Hausman. Once again, two proposals were submitted–one from Sasson and one

from HC 5815. The Purchasing Department appointed an Evaluation Committee

to review the proposals, and the committee recommended to the Facilities and

Property Management Department (“FPM”) that HC 5815’s proposal be accepted.

FPM in turn recommended to the Harris County Purchasing Department that

Harris County accept HC 5815’s proposal, and the Purchasing Department

3 recommended to the Harris County Commissioners Court that it award the contract

to HC 5815. The Commissioners Court voted to award the contract to HC 5815.

Sasson averred that he was suspicious about improper influence in the

bidding process because he believed his proposal was superior. He inquired about

the process with the Harris County Attorney’s Office and the District Attorney’s

Office. He averred that both offices told him that no improprieties were found.

The lawsuit

Sasson averred that in March 2008, he was contacted by a news reporter

investigating claims that Surface had improperly influenced Harris County

officials, including Eversole, in order to obtain Harris County contracts. The

reporter told Sasson that the bid process in which he participated was part of the

investigation, and Sasson ultimately met with the FBI to discuss the bid process.

Eversole and Surface were indicted on charges that Surface bribed Eversole to

obtain Harris County contracts, including the contract that is the subject of this

case, but the charges were later dismissed. Eversole and Surface each pleaded

guilty to a charge of lying to a federal official, and Surface pleaded guilty to

falsifying a tax return for improperly deducting an expense associated with

Eversole as a business expense.

4 In February 2010, Sasson sued Surface and most of the other appellees for

fraud, tortious interference with a prospective business relationship, and

conspiracy. A year later, Sasson added Eversole as a defendant.

Eversole moved for summary judgment, arguing among other things that

Sasson’s claims were barred by the statute of limitations and that he was entitled to

immunity. The appellees also filed two joint motions for no-evidence summary

judgment. The trial court granted the appellees’ motions.

Discussion

In his first, third, and fourth issues, Sasson contends that the trial court erred

in granting summary judgment because (1) he raised a fact issue regarding the

applicability of the statute of limitations, (2) he presented more than a scintilla of

evidence of each challenged element of his causes of action, and (3) he raised more

than a scintilla of evidence of causation. Sasson also contends that the trial court

erred in granting summary judgment in Eversole’s favor because Eversole is not

entitled to immunity. We address Sasson’s third issue regarding causation first,

because it is dispositive.

A. Standard of Review

We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary

judgment without specifying the grounds for granting the motion, we must uphold

5 the trial court’s judgment if any of the grounds are meritorious. Beverick v. Koch

Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, pet.

denied). When a party has filed both a traditional and no-evidence summary

judgment motion, we typically first review the propriety of the summary judgment

under the no-evidence standard. See TEX. R. CIV. P. 166a(i); Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no-evidence summary

judgment was properly granted, we need not reach arguments under the traditional

motion for summary judgment. Ford Motor Co., 135 S.W.3d at 600. When

reviewing a summary judgment, we take as true all evidence favorable to the

nonmovant, and we indulge every reasonable inference and resolve any doubts in

the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661

(Tex. 2005).

To prevail on a no-evidence motion for summary judgment, the movant

must establish that there is no evidence to support an essential element of the

nonmovant’s claim on which the nonmovant would have the burden of proof at

trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the

nonmovant to present evidence raising a genuine issue of material fact as to each

of the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d

572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.

6 B. Applicable Law and Analysis

Appellees asserted in their summary-judgment motion that Sasson’s claims

could not survive summary judgment because there was no evidence that any

alleged improper conduct attributable to Eversole was the cause in fact of Sasson’s

damages. Among other things, the appellees argued that there was no evidence

that the alleged bribery of Eversole, who had only one of five votes, caused the

other members of the Commissioners Court to vote to award the contract to HC

5815.1

Both tortious interference with prospective business relationships and fraud

require the plaintiff to demonstrate cause in fact. S & I Mgmt., Inc. v. Choi, 331

S.W.3d 849, 856 (Tex. App.—Houston [1st Dist.] 2011, no pet.); COC Servs., Ltd.

v. CompUSA, Inc., 150 S.W.3d 654, 679 (Tex. App.—Dallas 2004, pet. denied).

To prevail on a tortious interference with prospective business relationships claim,

the plaintiff must prove that the alleged tortious conduct constitutes a cause in fact

that prevented the prospective business relationship from occurring. COC Servs.,

150 S.W.3d at 679. Likewise, to prevail on a fraud claim, the plaintiff must prove

that the fraud was the proximate cause of his injury, and the components of

proximate causation are cause in fact and foreseeability. S & I Mgmt., 331 S.W.3d

at 856.

1 The four commissioners voted in favor of the proposal and the county judge voted against it.

7 “[C]ause-in-fact . . . is satisfied by proof that (1) the act was a substantial

factor in bringing about the harm at issue, and (2) absent the act (‘but for’ the act),

the harm would not have occurred.” HMC Hotel Props. II Ltd. P’ship v. Keystone-

Texas Prop. Holding Corp., 439 S.W.3d 910, 913 (Tex. 2014) (citing Akin, Gump,

Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. and Research Corp., 299 S.W.3d 106,

122 (Tex. 2009)). “These elements cannot be established by mere conjecture,

guess, or speculation.” Id. (citing Doe v. Boys Clubs of Greater Dallas, Inc., 907

S.W.2d 472, 477 (Tex. 1995)). “If the defendant’s negligence merely furnished a

condition that made the injuries possible, there can be no cause in fact.” W. Invs.,

Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).

Thus, Sasson bore the burden to adduce evidence raising a genuine issue of

material fact as to causation with respect to his fraud and tortious interference

claims. See Mack Trucks, Inc., 206 S.W.3d at 582; Hahn, 321 S.W.3d at 524. The

parties agree that only the Commissioners Court could award the contract. Sasson

contends that he raised a fact issue on causation by adducing evidence that

Surface’s property was in Eversole’s precinct and that Eversole testified that he

would defer to the other commissioners regarding the county’s purchase or lease of

property in their respective precincts. Thus, Sasson argued in his response to the

no-evidence motion, and argues on appeal, that he was entitled to an inference that

the other commissioners similarly deferred to Eversole and voted to approve the

8 award of the contract to HC 5815 because the property was in Eversole’s precinct

and Eversole approved it.

But evidence regarding how Eversole would vote in a hypothetical scenario,

without more, is no evidence that the other commissioners awarded the contract to

HC 5815 out of deference to Eversole because the property subject to the contract

was located in his precinct. Sasson correctly argues that he is entitled to all

reasonable inferences, see Valence Operating Co., 164 S.W.3d at 661, but here, he

is urging us to hold that he may raise a fact issue by stacking one inference upon

another. See HMC Hotel, 439 S.W.3d at 913 (cause in fact may not be established

by conjecture, guess, or speculation).

Sasson adduced no evidence that the three other commissioners who voted

to award the contract to HC 5815 did so out of deference to Eversole because the

property was located in his precinct and he wanted it awarded to HC 5815. See

Ford Motor Co., 135 S.W.3d at 601 (“Evidence that is so slight as to make any

inference a guess is in legal effect no evidence.”). Thus, taking all of Sasson’s

evidence as true and assuming, as Sasson alleges, that Surface bribed Eversole to

win the contract, Sasson adduced no evidence raising a fact issue regarding

whether the three other commissioners who also voted to award the contract to HC

5815 were improperly influenced by the alleged bribe or anything else. See id.

The votes of the three other commissioners were sufficient to award the contract to

9 HC 5815, regardless of Eversole’s vote. Accordingly, Sasson failed to raise a fact

issue on causation. See Mack Trucks, Inc., 206 S.W.3d at 582; Hahn, 321 S.W.3d

at 524.

Because Sasson failed to raise a fact issue on an essential element of his

fraud and tortious interference claims, his civil conspiracy claim must also fail.

Civil conspiracy is a derivative tort; that is, a defendant’s liability for conspiracy is

dependent on his participation in an underlying tort for which the plaintiff seeks to

hold at least one of the named defendants liable. Preston Gate, LP v. Bukaty, 248

S.W.3d 892, 898 (Tex. App.—Dallas 2008, no pet.). Thus, if summary judgment

is proper on the underlying tort claims—here, fraud and tortious interference—then

it is also proper on Sasson’s conspiracy claim. See id.; see also Grant Thornton

LLP v. Prospect High Income Fund, 314 S.W.3d 913, 930–31 (Tex. 2010).

We overrule Sasson’s third issue. Because we have concluded that the trial

court properly could have granted summary judgment on all of Sasson’s claims

based on causation, we do not reach Sasson’s remaining issues.

10 Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle Justice

Panel consists of Justices Jennings, Higley, and Huddle.