Grant Vassberg and Kallion Cattle Company LLC v. John E. McFarlane, High Prairie Ranch Cattle Company, Carter Interests Ltd., Catherine Carter Malone, John Mason Carter, John Mason Carter, Jr., Madeline Browne Carter, Carter Davis Malone, Catherine Megan Malone, & John E. McFarlane, Sr. as the Sole Trustee of the John E. McFarlane Family Trust

• Court: Court of Appeals of Texas
• Decided: October 12, 2023
• Docket: 10-22-00017-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00017-CV

GRANT VASSBERG AND KALLION CATTLE COMPANY LLC, Appellants v.

JOHN E. MCFARLANE, HIGH PRAIRIE RANCH CATTLE COMPANY, CARTER INTERESTS LTD., CATHERINE CARTER MALONE, JOHN MASON CARTER, JOHN MASON CARTER, JR., MADELINE BROWNE CARTER, CARTER DAVIS MALONE, CATHERINE MEGAN MALONE, & JOHN E. MCFARLANE, SR. AS THE SOLE TRUSTEE OF THE JOHN E. MCFARLANE FAMILY TRUST, Appellees

From the 361st District Court Brazos County, Texas Trial Court No. 20-002473-CV-361

MEMORANDUM OPINION

Grant Vassberg and Kallion Cattle Company, LLC (‘the Vassbergs”) appeal the

trial court’s “Final Summary Judgment” by which it dismissed and also entered a take-

nothing judgment on all of the Vassbergs’ causes of action and assessed attorney’s fees to be paid by the Vassbergs. All other relief was denied. For the reasons set forth in this

opinion, the trial court’s “Final Summary Judgment” is affirmed.

BACKGROUND

According to the Vassbergs’ first amended original petition, the Vassbergs leased

a large amount of land for their cattle operations. They also worked to improve the land

by clearing it from invasive plants that interfered with cattle grazing. After signing a new

lease on March 2, 2020, which set a minimum monthly rental of $4,500, the Vassbergs

failed to pay that amount, claiming the monthly rental amount had been reduced by oral

agreement. In August of 2020, John E. McFarlane gave notice of termination of the lease,

and the Vassbergs vacated the land in November.

Initially, Grant Vassberg filed suit against McFarlane, d/b/a High Prairie Ranch

Cattle Company (“HPRCC”) for specific performance and injunctive relief related to the

lease agreement. When the original petition was amended, Kallion Cattle Company was

added as a plaintiff/third-party beneficiary, and Carter Interests Ltd., Catherine Carter

Malone, John Mason Carter, John Mason Carter, Jr., Madeline Browne Carter, Carter

Davis Malone, Catherine Megan Malone, and John E. McFarlane, Sr. as the Sole Trustee

of the John E. McFarlane Family Trust were added as defendants. McFarlane, d/b/a

HPRCC filed a counterclaim. Various motions for summary judgments were filed by the

defendants, opposed by the Vassbergs, and granted by the trial court. A final, appealable

summary judgment was rendered by the trial court against the Vassbergs on

November 1, 2021.

Vassberg v. McFarlane, et al. Page 2 SUMMARY JUDGMENT

We review a trial court's summary judgment de novo. KCM Fin. LLC v. Bradshaw,

457 S.W.3d 70, 79 (Tex. 2015); Nichols v. McKinney, 553 S.W.3d 523, 527 (Tex. App.—Waco

2018, pet. denied). Our review is limited to consideration of the summary judgment

evidence presented to the trial court. See TEX. R. CIV. P. 166a(c). A trial court can consider,

and a defendant can rely on, evidence and pleadings by a plaintiff to determine whether

the summary judgment burden of proof has been met. See Schlumberger Tech. Corp. v.

Pasko, 544 S.W.3d 830, 835 (Tex. 2018).

We take as true all evidence favorable to the nonmovant and 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). A party moving for traditional summary

judgment must state specific grounds, and a defendant who conclusively negates at least

one essential element of each of the plaintiff's causes of action or who conclusively

establishes all the elements of an affirmative defense is entitled to summary judgment.

KCM Fin. LLC, 457 S.W.3d at 79; Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).

Summary judgments must stand on their own merits. Anderson Hosp. & Tumor

Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). Accordingly, the non-movant has no burden

to respond to or present evidence regarding the motion until the movant has carried its

burden. See id.; Nichols, 553 S.W.3d at 527. If the movant meets its burden, the burden

then shifts to the non-movant to raise a genuine issue of material fact. See Centeq Realty,

Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of

material fact if reasonable and fair-minded jurors could differ in their conclusions in light

Vassberg v. McFarlane, et al. Page 3 of all the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d

754, 755 (Tex. 2007). And when the trial court does not specify the grounds for its ruling,

a summary judgment must be affirmed if any of the grounds on which judgment is

sought are meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).

ISSUES—RES JUDICATA

In their first issue, the Vassbergs contend the trial court erred as a matter of law

when it granted summary judgment in favor of McFarlane and HPRCC (hereinafter

referred to in this issue as McFarlane) based on res judicata. This is the only issue raised

by the Vassbergs which attacks the summary judgment granted in favor of McFarlane.

However, McFarlane also moved for summary judgment based on the statute of frauds

defense. See TEX. BUS. & COM. CODE § 26.01(a), (b)(5).

When a party moves for summary judgment on multiple grounds and the trial

court does not specify the basis for its summary judgment, as in this case, "the appealing

party must show it is error to base it on any ground asserted in the motion." Star-

Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995); see Malooly Bros., Inc. v. Napier, 461

S.W.2d 119, 121 (Tex. 1970). If the appealing party “fails to negate or challenge all possible

grounds on which summary judgment could have been granted, we will uphold the

judgment on those grounds.” Lesher v. Coyel, 435 S.W.3d 423, 429 (Tex. App.—Dallas

2014, pet. denied); see Malooly, 461 S.W.2d at 121; see also Heister v. W. Shamrock, No. 10-

01-00366-CV, 2003 Tex. App. LEXIS 5160, *2 (Tex. App. Waco June 18, 2003, no pet.) (mem.

op.).

Vassberg v. McFarlane, et al. Page 4 The Vassbergs failed to challenge the statute of frauds defense raised by

McFarlane. Thus, the trial court’s grant of McFarlane’s motion for summary judgment is

affirmed, and the Vassbergs’ first issue is overruled.

—AGENCY

Next, the Vassbergs contend the trial court erred in granting summary judgment

for the McFarlane Trust and Carter Interests Ltd. (collectively referred to in this issue as

Carter Interests) on the ground that McFarlane was not an agent of Carter Interests and

Carter Interests had no knowledge of his conduct.

The Vassbergs do not cite this Court to any authority to as to what is required to

prove agency and why, according to that authority, the evidence presented raises a fact

issue as to whether McFarlane was Carter Interests’ agent. Citation to authorities is

required in order to properly present an issue to this Court. TEX. R. APP. P. 38.1(i).

Further, we "know of no authority obligating us to become advocates for a particular

litigant through performing their research and developing their argument for them."

Tello v. Bank One, N.A., 218 S.W.3d 109, 116 (Tex. App.—Houston [14th Dist.] 2007, no

pet.) (internal quotation omitted) (quoting Jordan v. Jefferson County, 153 S.W.3d 670, 676

(Tex. App.—Amarillo 2004, pet. denied). Thus, this issue is inadequately briefed and

presents nothing for review. See TEX. R. APP. P. 38.1(i).; Fredonia State Bank v. Gen. Am.

Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994) (observing that error may be waived by

inadequate briefing); In the Int. of T.B., 641 S.W.3d 535, 540 (Tex. App.—Waco 2022, pet.

denied); Dorton v. Chase, 262 S.W.3d 396, 400 (Tex. App.—Waco 2008, pet. denied). The

Vassbergs’ second issue is overruled.

Vassberg v. McFarlane, et al. Page 5 —VICARIOUS LIABILITY

In Issue Three, the Vassbergs complain that the trial court erred in granting

summary judgment for the individual Carter family members because, as general

partners to the limited partnership, they were jointly and severally liable for the limited

partnership’s obligations. The disposition of this issue relies solely on a favorable

disposition of the Vassbergs’ second issue. 1 Because the second issue is overruled, this

third issue is overruled as well.

—JOINT AND SEVERAL LIABILITY

The Vassbergs complain in their fourth issue that the trial court erred in holding

Vassberg and Kallion jointly and severally liable to HPRCC because HPRCC failed to

conclusively establish that type of liability. Specifically, the Vassbergs contend HPRCC

did not conclusively establish that the Vassbergs are jointly and severally liable based on

the alter ego theory or on Kallion’s status as a third-party intended beneficiary. In other

words, because HPRCC did not establish either an alter ego theory or that Kallion was a

third-party beneficiary, joint and several liability cannot be ordered.

HPRCC claimed in its motion for final summary judgment that the summary

judgment evidence conclusively proved Vassberg and Kallion were the same and thus,

were jointly and severally liable for the indebtedness to HPRCC. In the alternative,

HPRCC contended the Vassbergs judicially admitted Kallion was a third-party intended

beneficiary.

1 “If Carter Interests is liable to [the Vassbergs], so too are the general partners—the Carter Family.”

Vassberg v. McFarlane, et al. Page 6 As a general rule, the benefits and burdens of a contract belong solely to the

contracting parties, and "no person can sue upon a contract except he be a party to or in

privity with it." First Bank v. Brumitt, 519 S.W.3d 95, 102 (Tex. 2017) (quoting House v.

Hous. Waterworks Co., 88 Tex. 233, 31 S.W. 179, 179 (Tex. 1895)). An exception to this

general rule permits a person who is not a party to the contract to sue for damages caused

by its breach if the person qualifies as a third-party beneficiary. Id.

A judicial admission is a formal act of waiver of proof usually found in pleadings

or the stipulations of the parties. Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d

692, 694 (Tex. 1980). It is conclusive upon the party making it, and it relieves the opposing

party's burden of proving the admitted fact and bars the admitting party from disputing

it. Id.

Kallion was added as a plaintiff in the Vassbergs’ “First Amended Original

Petition & Request for Disclosures and Demand for Jury Trial.” In that petition, the

Vassbergs referred to themselves as “Plaintiffs” in the petition and asserted the

“Plaintiffs” leased the premises, leased the premises for the benefit of the plaintiffs, and

were long-time tenants of “the Defendants.” They also asserted the lease agreement was

between “Plaintiffs” and “Defendants” and that “Plaintiffs” and “Defendants” entered

into the lease with HPRCC. The Vassbergs, as “Plaintiffs” also specifically requested

attorney’s fees. Further, Kallion specifically asserted in its claims for damages that “it

was a third-party intended beneficiary of the Lease and hereby makes a claim as a third-

party intended beneficiary against all Defendants.” Kallion also admitted that rent was

paid to HPRCC “on checks drawn from accounts owned by” Kallion.

Vassberg v. McFarlane, et al. Page 7 After reviewing the entirety of the Vassbergs’ “First Amended Original Petition &

Request for Disclosures and Demand for Jury Trial,” we find the trial court could

properly conclude the Vassbergs judicially admitted Kallion was a third-party intended

beneficiary. Thus, they are barred from disputing Kallion’s third-party-intended-

beneficiary status in the trial court and on appeal.

In this issue, the Vassbergs’ criticism with the imposition of joint and several

liability rests on their assertion that HPRCC did not prove Kallion was a third party

beneficiary. They did not assert that joint and several liability cannot be imposed on a

third-party beneficiary. Because the Vassbergs judicially admitted Kallion is a third-

party beneficiary, HPRCC had no burden to prove, and the Vassbergs are barred from

disputing, Kallion’s status as a third-party beneficiary. Thus, the Vassbergs’ fourth issue

is overruled. 2

—ATTORNEY’S FEES

Lastly, the Vassbergs complain in their fifth issue that the award of attorney’s fees

to HPRCC must be vacated because the terms and conditions of the award are not clearly

discernable, the award is excessive, and HPRCC failed to segregate its claims.

As to the complaint that the award of attorney’s fees must be vacated because the

terms and conditions of the award are not clearly discernable, the Vassbergs present

nothing to inform us as to what the terms and conditions should be or are required to be.

They only present what was ordered and assert that the terms and conditions are not

2 We need not discuss whether HPRCC established the alter ego doctrine because the Vassbergs complain that either third party beneficiary was not established or alter ego was not established—not both.

Vassberg v. McFarlane, et al. Page 8 typical and are conflicting and confusing. Again, we "know of no authority obligating us

to become advocates for a particular litigant through performing their research and

developing their argument for them." Tello v. Bank One, N.A., 218 S.W.3d 109, 116 (Tex.

App.—Houston [14th Dist.] 2007, no pet.) (internal quotation omitted) (quoting Jordan v.

Jefferson County, 153 S.W.3d 670, 676 (Tex. App.—Amarillo 2004, pet. denied)). Thus, this

part of Issue Five is inadequately briefed and presents nothing for review. See TEX. R.

APP. P. 38.1(i).; Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994)

(observing that error may be waived by inadequate briefing); In the Int. of T.B., 641 S.W.3d

535, 540 (Tex. App.—Waco 2022, pet. denied); Dorton v. Chase, 262 S.W.3d 396, 400 (Tex.

App.—Waco 2008, pet. denied).

The Vassbergs also claim the attorney’s fee award is excessive. However, they fail

to present any argument or authority to support that claim. The word “excessive” is

mentioned three times in the issue but is not connected to any separate argument or

authority other than the claim for failure to segregate. Accordingly, if excessiveness is a

separate complaint, it is inadequately briefed and presents nothing for review. See TEX.

R. APP. P. 38.1(i).; Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex.

1994); In the Int. of T.B., 641 S.W.3d 535, 540 (Tex. App.—Waco 2022, pet. denied); Dorton

v. Chase, 262 S.W.3d 396, 400 (Tex. App.—Waco 2008, pet. denied).

Finally, the Vassbergs complain that HPRCC failed to segregate its attorney’s fees

claims. This complaint was not raised before the trial court, despite Vassbergs’ assertion

Vassberg v. McFarlane, et al. Page 9 otherwise. 3 Accordingly, this particular complaint is not preserved and is waived. See

TEX. R. APP. P. 33.1; THF Hous. Mgmt. Corp. v. Gideon, 617 S.W.3d 624, 632 (Tex. App.—

Amarillo 2021, no pet.) (overruling appellant's complaint about Gideon's entitlement to

attorney's fees because it was not first presented to the trial court). Issue Five is overruled.

CONCLUSION

Having overruled each issue on appeal, we affirm the trial court’s “Final Summary

Judgment.”

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Johnson, and Justice Jim R. Wright 4 Affirmed Opinion delivered and filed October 12, 2023 [CV06]

3 The Vassbergs also assert in their brief that they “challenged” the sufficiency of the evidence to support HPRCC’s request for attorney’s fees in their motion for new trial. The only citation to the record for this alleged challenge is to the last page of their motion for new trial. No such claim was made on that page or any page of the Vassberg’s motion for new trial, and no challenge to the sufficiency of the evidence to support the attorney’s fees award has been made on appeal. Although the terms “reasonable and necessary” were used in the brief, the only complaint on appeal is that the fees were not segregated. And that complaint was not brought before the trial court.

4 The Honorable Jim R. Wright, Senior Chief Justice (Retired) of the Eleventh Court of Appeals, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV'T CODE §§ 74.003, 75.002, 75.003.

Vassberg v. McFarlane, et al. Page 10