MaximusAlliance Partners, LLC v. Dan Faber, Frank Vingerhoets

• Court: Court of Appeals of Texas
• Decided: February 17, 2015
• Docket: 05-13-01688-CV
• Status: Published

Opinion

AFFIRMED; and Opinion Filed February 17, 2015

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-13-01688-CV

MAXIMUSALLIANCE PARTNERS, LLC, Appellant V. DAN FABER, FRANK VINGERHOETS, ET AL., Appellee

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-11-16379-H

MEMORANDUM OPINION Before Justices Lang, Brown, and Whitehill Opinion by Justice Lang MaximusAlliance Partners, LLC (“Maximus”) appeals from the trial court’s order

granting partial summary judgment in favor of the appellees, Dan Faber (“Faber”), Frank

Vingerhoets (“Vingerhoets”), Katoen Natie Gulf Coast, Inc., Katoen Natie USA, Inc., Katoen

Natie Norfolk, Inc., Katoen Natie Louisiana, LLC, and Baton Rouge Polymers Terminal, LLC

(“the KTN entities”) (collectively, “appellees”). In three issues, Maximus contends the trial

court erred by (1) granting summary judgment in favor of the KTN entities on its fraud claim, (2)

granting summary judgment in favor of all appellees on its claim for aiding and abetting a breach

of fiduciary duty, and (3) “assessing the court costs” against Maximus.

While the appellees filed both a traditional and a no-evidence motion for summary

judgment, the KTN entities argue only that the no-evidence motion addressed Maximus’s fraud

claim. For the reasons discussed below, we conclude that the no-evidence motion was legally insufficient to address the fraud claim against the KTN entities. We decide in favor of Maximus

on its first issue, and we reverse the trial court’s summary judgment as to the fraud claim and

remand for further proceedings on this issue. We decide against Maximus on its second issue

and affirm the trial court’s summary judgment in favor of all appellees as to the aiding and

abetting claim. Because we reverse in part and remand, we also reverse the portion of the trial

court’s order taxing court costs against Maximus and remand the issue for further consideration.

I. FACTUAL AND PROCEDURAL BACKGROUND

John Castro (“Castro”) was employed by Maximus as “Managing Director for the

Location Optimization Group” from approximately September 1, 2009, to September 22, 2011.

On or about January 26, 2011, Maximus entered into a “business incentives agreement” with

“Katoen Natie” (“KTN”) (“Maximus agreement”). Castro signed the agreement as “Managing

Director” of Maximus, and Faber, who according to the record is the “vice president of finance

administration” for Katoen Natie Gulf Coast, Inc., Katoen Natie USA, Inc., Katoen Natie

Norfolk, Inc., and Katoen Natie Louisiana, LLC, signed on behalf of KTN. Under the

agreement, Maximus would “provide incentive negotiation services,” and KTN would pay

Maximus “a fee of fifteen percent (15%) of all Incentives.” The agreement further provided that

Maximus’s “services hereunder will be provided by John Castro, CEcD.”

Maximus alleges that after the agreement was signed, Castro, acting on behalf of

Maximus, began work on various projects for KTN. 1 According to Maximus, later that year

while still employed by Maximus, Castro decided to join a newly formed company, KLM

Consulting, LLC (“KLM”). On August 24, 2011, Castro informed KTN that he was “disecting

[sic] [his] incentives and economic development consulting activity so as to be independent of

[Maximus]” and provided KTN with “a new version of our Incentives Agreement,” which he

1 The parties dispute which projects were covered under the Maximus agreement. We do not address this issue.

–2– claimed was “the same as what you have signed before as it has been my template for years.”

The “new version” of the agreement, in which KLM agreed to “provide incentive negotiation

services” for KTN in return for a fee, was executed by Faber on September 8, 2011, cancelled,

and then re-executed by Faber on October 5, 2011. Castro resigned from Maximus on

September 22, 2011. KTN cancelled the Maximus agreement on October 20, 2011. Maximus

alleges that Castro continued to work on the KTN projects that he started for Maximus and that

KLM received payment from KTN for one or more of those projects.

Maximus sued Castro, KLM, and others on December 30, 2011, asserting claims of

tortious interference, breach of fiduciary duty, breach of contract, and “aiding/abetting Castro

breach of fiduciary duty.” Maximus amended its petition several times, adding more claims and

defendants, including the appellees. Although many claims, counterclaims, and cross-claims

were asserted in the trial court, the only claims relevant to this appeal are Maximus’s claim for

fraud against the KTN entities and its claim for aiding and abetting Castro’s breach of fiduciary

duty against all of the appellees.

The appellees filed a traditional and no-evidence motion for summary judgment on May

9, 2013, asserting that the KTN entities were entitled to summary judgment on Maximus’s

claims for breach of contract, quantum meruit, tortious interference, and aiding and abetting, and

that Faber and Vingerhoets were entitled to summary judgment on Maximus’s claims for tortious

interference and aiding and abetting. On May 23, 2013, Maximus filed a response to the

summary judgment motion and its seventh amended petition, which added, among others, a

claim for fraud against the KTN entities. The appellees filed a reply to Maximus’s response on

May 28, 2013, but they did not amend or supplement the motion for summary judgment after

Maximus’s seventh amended petition was filed. The trial court held a hearing, and, in an order

dated June 20, 2013, rendered judgment as follows: (1) summary judgment was granted in favor

–3– of Faber, Vingerhoets, and Baton Rouge Polymers Terminal, LLC on all of Maximus’s claims

against them; (2) summary judgment was granted in favor of Katoen Natie Gulf Coast, Inc.,

Katoen Natie USA, Inc., Katoen Natie Norfolk, Inc., and Katoen Natie Louisiana, LLC on

Maximus’s claims of aiding and abetting, tortious interference, and fraud; and (3) summary

judgment was denied as to Maximus’s claims for breach of contract and quantum meruit against

Katoen Natie Gulf Coast, Inc., Katoen Natie USA, Inc., Katoen Natie Norfolk, Inc., and Katoen

Natie Louisiana, LLC.

Maximus filed a “motion for sanctions and limited reconsideration of KTN summary

judgment,” which the trial court denied in an order dated September 18, 2013. On October 25,

2013, the KTN entities and Castro filed a “joint motion,” requesting the trial court “to dismiss all

claims between them with prejudice,” which would dispose of all remaining parties and claims,

and requesting “the entry of a final judgment in this case.” In an order dated October 28, 2013,

the trial court granted the motion, taxed the court costs against Maximus, and rendered final

judgment. This appeal followed.

II. SUMMARY JUDGMENT

A. Standard of Review

“We review a trial court’s grant of summary judgment de novo.” Neely v. Wilson, 418

S.W.3d 52, 59 (Tex. 2013). “We must review the summary judgment record ‘in the light most

favorable to the nonmovant, indulging every reasonable inference and resolving any doubts

against the motion.’” Id. at 59–60 (citing City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.

2005)). In a no-evidence motion for summary judgment, “a movant must establish that ‘[a]fter

adequate time for discovery . . . there is no evidence of one or more essential elements of a claim

or defense on which an adverse party would have the burden of proof at trial.’” Fort Worth

Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004) (quoting TEX. R. CIV. P.

–4– 166a(i)). “The court must grant the motion unless the respondent produces summary judgment

evidence raising a genuine issue of material fact.” TEX. R. CIV. P. 166a(i). “A genuine issue of

material fact exists if the nonmovant produces more than a scintilla of evidence establishing the

existence of the challenged element.” Reese, 148 S.W.3d at 99.

In a traditional motion for summary judgment, “a movant must establish that there is no

genuine issue of material fact so that the movant is entitled to judgment as a matter of law.”

Reese, 148 S.W.3d at 99 (citing TEX. R. CIV. P. 166a(c)). “A defendant moving for traditional

summary judgment must either (1) disprove at least one essential element of the plaintiff’s cause

of action as a matter of law or (2) plead and conclusively establish each essential element of an

affirmative defense.” Howard v. Burlington Ins. Co., 347 S.W.3d 783, 789 (Tex. App.—Dallas

2011, no pet.). “Once the defendant establishes its right to summary judgment as a matter of

law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact,

thereby precluding summary judgment.” Id.

B. Fraud Claim Against the KTN Entities

In its first issue, Maximus asserts the trial court erred in granting summary judgment in

favor of the KTN entities on its fraud claim because Maximus did not plead fraud until after the

summary judgment motion was filed, the motion did not address fraud, and it was not

subsequently amended or supplemented. The KTN entities respond that the fraud claim was

properly considered because “the grounds of the motion were broad enough to encompass the

fraud claim.” While the KTN entities filed both a traditional and a no-evidence motion for

summary judgment, on appeal, they argue only that the grounds asserted in the motion were

sufficient to raise a no-evidence challenge to the fraud claim. We agree with the KTN entities

that the traditional portion of the motion for summary judgment did not raise fraud.

–5– Accordingly, we do not address the traditional motion for summary judgment as to Maximus’s

fraud claim.

1. Applicable Law

No-evidence summary judgments “cannot be upheld upon grounds not raised in the

motion for summary judgment.” Jose Fuentes Co. v. Alfaro, 418 S.W.3d 280, 286 (Tex. App.—

Dallas 2013, pet. filed) (en banc); accord Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.

2009). “Generally, a movant who does not amend or supplement its pending motion for

summary judgment to address newly added claims alleged in a subsequent petition is not entitled

to summary judgment on those claims.” Callahan v. Vitesse Aviation Servs., LLC, 397 S.W.3d

342, 350 (Tex. App.—Dallas 2013, no pet.). “In such a case, the portion of the summary

judgment purporting to be final must generally be reversed because the judgment grants more

relief than requested in the motion.” Id. There are “limited exceptions” to this rule:

[A]n amended or supplemental motion for summary judgment is not required when the amended petition essentially reiterates previously pleaded causes of action, when a ground asserted in a motion for summary judgment conclusively negates a common element of the newly and previously pleaded claims, or when the original motion is broad enough to encompass the newly asserted claims.

Id. at 350–51; Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476, 487 (Tex. App.—Houston

[1st Dist.] 2007, pet. denied).

“Rule 166a(i) unconditionally requires a movant to specify the elements as to which there

is no evidence.” Jose Fuentes, 418 S.W.3d at 286 (citing TEX. R. CIV. P. 166a(i)). “We apply

the rule strictly so as not to deprive litigants of their right to a full hearing on the merits of any

real issue of fact.” Id. “The underlying purpose of this requirement ‘is to provide the opposing

party with adequate information for opposing the motion, and to define the issues for the purpose

of summary judgment.’” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) (quoting

Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex. 1978)).

–6– 2. Application of Law to Facts

Maximus contends the fraud claim “was not the subject of the motion,” and summary

judgment was granted in error because the KTN entities did not amend or supplement the motion

for summary judgment after the fraud claim was pleaded. The KTN entities contend that the

motion was “broad enough to encompass the fraud claim” and “attacked an essential element” of

fraud, as required by Rule 166a(i), when it stated, in part, “Maximus has no evidence (and

certainly not clear and convincing evidence) that Maximus suffered any harm as a result of fraud,

malice, or gross negligence.” 2 In response, Maximus contends “the entire section of [the motion]

purportedly supporting the summary judgment on fraud was really limited to only exemplary

damages and ‘fraud’ was only mentioned as a recitation of the statute.”

Maximus added the claim for fraud against the KTN entities in its seventh amended

petition, which was filed after the motion for summary judgment. The motion for summary

judgment was not subsequently amended or supplemented. In oral arguments, the KTN entities

asserted that the element of fraud addressed in their motion is “harm,” which they contend is the

equivalent of “injury.” “Injury” is an element of fraud long acknowledged by our appellate

courts. 3 However, the KTN entities have not cited any authority, and we have found none, that

identifies the element of “injury” as the equivalent of “harm.” Moreover, we note that the quoted

language from the motion does not suggest in any way that “harm” is an element of fraud.

Rather, it merely recites language from section 41.003 of the Civil Practices and Remedies Code

as follows, “Maximus’ claim for exemplary damages fails as a matter of law, because Maximus

2 On appeal, the KTN entities also argue that “the motion attacked an essential element that is common to the existing claims and the newly added fraud claim” by “assert[ing] that there was no evidence of damages on claims asserted by Maximus,” citing portions of the summary judgment motion that claimed Maximus had no evidence of damages from tortious interference and breach of contract. The KTN entities do not cite any authority supporting this contention. A ground asserted in the motion must “conclusively negate a common element of the newly and previously pleaded claims,” not merely “attack” a common element. See Callahan, 397 S.W.3d at 350. 3 See Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998) (quoting Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281, 282 (Tex. 1994)) (“A fraud cause of action requires ‘a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury.’”).

–7– has no evidence (and certainly not clear and convincing evidence) that Maximus suffered any

harm as a result of fraud, malice, or gross negligence.” (emphasis added). That language uses

the word “harm” to describe the predicate for recovery of exemplary damages: that is, the party

seeking exemplary damages must “prove[] by clear and convincing evidence that the harm with

respect to which the claimant seeks recovery of exemplary damages results from: (1) fraud; (2)

malice; or (3) gross negligence.” See TEX. CIV. PRAC. & REM. CODE § 41.003(a).

Rule 166a(i) requires the movant to clearly and specifically articulate the element of the

claim, fraud in this case, regarding which it contends there is no evidence. See TEX. R. CIV. P.

166a(i) (“The motion must state the elements as to which there is no evidence.”); Jose Fuentes,

418 S.W.3d at 283–85. As we state in Jose Fuentes,

the rule requires that each element challenged must be specifically identified as such, so the non-movant is not left to guess which elements the movant challenges. When a movant uses a word or phrase that does not clearly identify which element or elements the motion challenges, it is the obligation of the movant to provide a rational basis in the motion for the non-movant to eliminate other possible alternative meanings of the unclear identification of the challenged element or elements; otherwise, the motion is legally insufficient.

Jose Fuentes, 418 S.W.3d at 284. The KTN entities’ no-evidence motion for summary judgment

did not meet the requirements of Rule 166a(i) as to Maximus’s fraud claim. See TEX. R. CIV. P.

166a(i). We conclude the no-evidence motion for summary judgment was legally insufficient to

address the fraud claim. Accordingly, we decide Maximus’s first issue in its favor.

C. Aiding and Abetting Claim Against All Appellees

In its second issue, Maximus contends the trial court erred in granting summary judgment

in favor of all appellees on its claim for aiding and abetting Castro’s breach of fiduciary duty

because “evidence was presented for each element defeating summary judgment.” The appellees

argue that Maximus’s response did not comply with Rule 166a(i) “because it made no effort to

–8– specifically identify evidence on each challenged element of the claim,” and it did not offer

evidence that “creates a fact issue on any of the elements of the aiding and abetting claim.”

To avoid summary judgment, Rule 166a(i) requires the responding party to “produce[]

summary judgment evidence raising a genuine issue of material fact.” TEX. R. CIV. P. 166a(i).

The requirement is explained in the Supreme Court’s comment to the rule as follows: “the

respondent is not required to marshal its proof; its response need only point out evidence that

raises a fact issue on the challenged elements.” TEX. R. CIV. P. 166a(i) cmt. (1997) (emphasis

added). The Supreme Court has addressed the burden of the responding party to “point out”

evidence supporting each challenged element. See Johnson v. Brewer & Pritchard, P.C., 73

S.W.3d 193, 206–08 (Tex. 2002). In Brewer & Pritchard, P.C., the Supreme Court observed,

“While Brewer & Pritchard’s response might have been more specific in addressing the elements

of its conspiracy claim, the response was not wholly inadequate under Rule 166a(i).” Id. at 207.

The Court went on to quote Rule 166a(i) and the comment to the rule. After describing Brewer

& Prichard’s discussion of the evidence it asserted supported each element of the conspiracy

claim at issue, the Court said,

Whether Brewer & Pritchard adequately pointed out evidence relating to challenged elements of the conspiracy cause of action is a close question. But we conclude that the summary judgment response met the minimum requirements of Rule 166a(i). Accordingly, the court of appeals could not affirm the trial court’s judgment on the conspiracy claim because of a lack of specificity of the summary judgment response.

Id. at 207–08. In a later case, the Fourteenth Court of Appeals summarized how the summary

judgment response in Brewer & Pritchard, P.C. addressed the elements of the conspiracy claim

and “pointed out” pertinent evidence as follows:

In Brewer & Pritchard, P.C., the Texas Supreme Court held that a response with the following characteristics adequately pointed out evidence allegedly raising a fact issue as to the plaintiff’s conspiracy claim: –9– • The response detailed evidence allegedly indicating that one alleged co- conspirator benefitted from the fee agreement of the other alleged co- conspirator, and after identifying this evidence, the response stated that “these facts clearly evidence a . . . scheme to funnel half of the referral funds through [one alleged co-conspirator] and then, back to [the other alleged co-conspirator].”

• The response stated that the plaintiff’s conspiracy claim was based on one alleged co-conspirator’s breach of a fiduciary duty owed to the plaintiff, and then the response set forth argument and authorities regarding the alleged fiduciary duty, including a statement that third parties may be liable for aiding and abetting a breach of fiduciary duty. The response then pointed to facts that allegedly showed a breach of fiduciary duty by one of the alleged co-conspirators.

San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 331 (Tex. App.—Houston [14th Dist.]

2005, no pet.) (internal citations omitted).

Four courts of appeal have addressed similar questions and discussed the conclusions

stated in Brewer & Pritchard, P.C. 4 Two of these cases, San Saba Energy and Aleman, involve

facts and analyses that are particularly helpful to the application of law involved in this case. See

Aleman, 227 S.W.3d at 308–10; San Saba Energy, 171 S.W.3d at 330–32. In San Saba Energy,

the plaintiffs brought, among several others, a claim for breach of contract against the defendant.

San Saba Energy, 171 S.W.3d at 327. The defendant filed a motion asserting several grounds for

summary judgment on many of the plaintiffs’ claims, including a no-evidence challenge to the

damages element of the breach of contract claim. Id. at 327–28. Observing that the plaintiffs’

response to the motion was “more deficient” than the response in Brewer & Pritchard, P.C., the

4 See Holloway v. Texas Elec. Util. Const., Ltd., 282 S.W.3d 207, 212 (Tex. App.—Tyler 2009, no pet.) (construing Brewer & Pritchard, P.C. and concluding the summary judgment response was inadequate under Rule 166a(i) because it did not contain “any discussion of the element of proximate cause that points out evidence that raises a fact issue on that element”); P-K Charter, Inc. v. Tumche Corp., No. 2-06-350- CV, 2007 WL 3037743, at *2–3 (Tex. App.—Fort Worth Oct. 18, 2007, no pet.) (mem. op.) (concluding the motion for continuance, which was filed in lieu of a response, was inadequate because it “contain[ed] no section that references any argument or authorities addressing the challenged elements or even mentioning the causes of action alleged in [the non-movant’s] petition”); Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 309–10 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (construing Brewer & Pritchard, P.C. and concluding the response was adequate under Rule 166a(i)); Burns v. Canales, No. 14-04-00786-CV, 2006 WL 461518, at *5 (Tex. App.—Houston [14th Dist.] Feb. 28, 2006, pet. denied) (mem. op.) (construing Brewer & Pritchard, P.C. and concluding the response, which “contain[ed] no argument, and cite[d] to neither evidence nor authority,” was inadequate); San Saba Energy, L.P., 171 S.W.3d at 327 (construing Brewer & Pritchard, P.C. and concluding the response was inadequate under Rule 166a(i)).

–10– Fourteenth Court of Appeals concluded it was inadequate under Rule 166a(i). Id. at 331. The

plaintiffs’ response “state[d] generally that the summary-judgment evidence raises fact issues as

to all of the elements of all of their claims, and [it] incorporate[d] by reference more than six

hundred fifty pages of evidence.” Id. at 330–31. The court noted that “[a]lthough the response

describes much of the evidence filed in response to [defendant’s] motion, it does not state that

any of this evidence raises a fact issue as to damages regarding the [plaintiffs’ breach of contract

claim].” Id. at 330. In Aleman, an employee appealed the trial court’s no-evidence summary

judgment in favor of the employer on the employee’s negligence claim. Aleman, 227 S.W.3d at

308. On appeal, the employer argued that the employee’s response to the motion was “patently

inadequate” to address the challenged elements of breach and causation, but the First Court of

Appeals, applying Brewer & Pritchard, P.C., disagreed. Id. at 309. The court concluded the

employee’s “response recites a legal proposition followed by selected facts, similar to the

response found adequate by the Supreme Court in Brewer.” Id. at 310 (citing Brewer &

Pritchard, P.C., 73 S.W.3d at 207). The court noted that while the employee’s response did not

“expressly connect any specific fact to the specifically challenged elements,” the fact that the

motion challenged only two elements of the negligence claim and “the sheer brevity of the

evidence cited serve[d] to adequately ‘connect . . . the facts to the challenged elements of the

causes of action.’” Id. (quoting Brewer & Pritchard, P.C., 73 S.W.3d at 206).

2. Application of Law to Facts

The appellees moved for summary judgment on both traditional and no-evidence

grounds. In the no-evidence motion, the appellees asserted that Maximus did not have evidence

to support any of the elements of its aiding and abetting a breach of fiduciary claim.

Specifically, the motion stated, “Maximus has no evidence that: (a) a fiduciary relationship

–11– existed between Castro and Maximus; (b) Defendants knew of the fiduciary relationship between

Castro and Maximus; and (c) Defendants knowingly participated in Castro’s breach of his duty.”

Maximus’s response to the motion addressed the traditional and no-evidence motions

together. It first addressed the aiding and abetting claim in a section titled, “Summary Of The

Argument,” under the subheading “Aiding and Abetting – KTN Knew Castro Was an Owner

and/or Agent,” as follows:

The KTN Motion and the affidavits assert there was no knowledge that Castro was an owner of Maximus. The KTN Defendants did not have to know Castro was an owner since they knew he was an agent for Maximus. An agent owes a fiduciary duty to his principal. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 200-202 (Tex. 2002). The aiding and abetting of an agent in breaching his duty to the principal is actionable. Kinzbach Tool, 160 S.W.2d 509, 511 (Tex. 1942). Such is clearly the case at hand for all the KTN Defendants.

In the same section, under the subheading “Evidence Supports Each Cause of Action and

Punitive Damages,” Maximus stated, “Presented below is evidence supporting each element of

each cause of action. Likewise, the wrongful conduct outlined supports a jury submission as to

punitive damages.” Next, in a section titled, “Castro Known As Maximus Agent And/Or

Owner,” Maximus stated,

In their affidavits, Faber and Vingerhoets claim they did not know Castro was an owner of Maximus. While the conclusory statements are inadmissible, they also are irrelevant. While Faber testified he thought Castro “was” Maximus, it is completely undisputed that all the parties knew Castro was the agent for Maximus. As such, they knew he was working on behalf of Maximus and they aided and abetted him in breaching his fiduciary duty to Maximus.

The response then recited case law regarding an agent’s breach of fiduciary duty and the

liability of a third party who knowingly participates in another’s breach of his fiduciary duty.

Maximus concluded this section by stating, “Faber, Vingerhoets, and the KTN Defendants were

well aware that Castro was the agent for Maximus, the principal. As such, their self-serving

inadmissible statements fail to absolve them of liability for their conduct.” Next, Maximus

identified its evidence in a section titled “Evidence Of Causes Of Actions,” where it stated, “The –12– KTN Defendants have thrown in a perfunctory no-evidence motion, knowing there is evidence to

at least raise a fact issue for each element.” Without further explanation, in the space of

approximately ten pages, Maximus cited deposition testimony of four witnesses, attaching copies

of pertinent pages of those depositions, and described eighty exhibits, which were also attached.

Finally, Maximus stated its contention that its response addressed each element of each claim as

to breach of contract, quantum meruit, aiding and abetting, and exemplary damages. Specifically

as to aiding and abetting, it said, “The above evidence conclusively establishes each element of

the Plaintiff’s claims for aiding and abetting by the KTN Defendants. Whether agent or owner,

the KTN Defendants were aware Castro owed a fiduciary duty to Maximus. They knowingly

assisted in his breach.”

The appellees’ no-evidence motion for summary judgment challenged all three elements

of the aiding and abetting claim, so Maximus bore the burden to “point out” more than a scintilla

of probative evidence concerning each element. See TEX. R. CIV. P. 166a(i); Reese, 148 S.W.3d

at 99. As to the first and second element, the existence of the fiduciary relationship and the

defendants knowledge of that relationship, the response merely stated that the appellees “knew”

or “were aware” that Castro was an “agent” for Maximus. The response did not identify what

evidence supported the conclusion that Castro was an “agent” or how the appellees “knew” this.

See Hennen v. Allstate Ins. Co., No. 13-12-00645-CV, 2013 WL 4773245, at *2 (Tex. App.—

Corpus Christi Sept. 5, 2013, no pet.) (mem. op.) (citing Natural Gas Pipeline Co. of Am. v.

Justiss, 397 S.W.3d 150, 158 (Tex. 2012)) (concluding no-evidence summary judgment response

was inadequate because the respondent’s assertions supporting his claim were “conclusory and

speculative and therefore no evidence”).

On appeal, Maximus argues its response was sufficient because Castro was the only

person at Maximus with whom the appellees dealt and that the contract identified Castro as a

–13– “Managing Director.” These assertions are not articulated in any of the discussion in the

response. Maximus asserts those facts are contained somewhere in the ten pages describing the

evidence filed or the eighty attached exhibits. However, to meet the requirement of Rule 166a(i)

to “point out” evidence that an individual is an “agent,” a respondent must at least state that

Castro was an employee and “Managing Director,” rather than leaving the trial judge with the

“onerous task” of searching through the summary judgment evidence to see what, if anything,

supports that legal conclusion. See San Saba Energy, 171 S.W.3d at 331 (concluding plaintiffs’

response was inadequate despite their argument on appeal that an affidavit attached to the

response “raise[d] a fact issue as to the challenged damage element” because “they never made

this assertion in their summary-judgment response”). Moreover, a review of the response shows

us that the third element, knowing participation, is not discussed. After describing the evidence

being offered, Maximus merely stated that the appellees “knowingly assisted in [Castro’s]

breach.” Maximus did not cite any authority, make any argument, or “point out” any evidence to

support its contention that the appellees “knowingly assisted” Castro’s breach. See Holloway,

282 S.W.3d at 212 (concluding a response was inadequate for failing to address the challenged

element of proximate cause because the court could not “locate any discussion of the element of

proximate cause that points out evidence that raises a fact issue on that element”); Burns, 2006

WL 461518, at *5 (citing Brewer & Pritchard, P.C., 73 S.W.3d at 207–08) (concluding a

summary judgment response was inadequate under Rule 166a(i) because it “contain[ed] no

citation to any authority, no citation to specific evidence, no reference to any fact, and no

argument”).

We cannot make the observation that this is a “close question” as the Supreme Court did

in Brewer & Pritchard, P.C. See Brewer & Pritchard, P.C., 73 S.W.3d at 207–08. In its

response, Maximus addressed at least six claims that we can identify from the record, aiding and

–14– abetting breach of fiduciary duty, quantum meruit, interfering with contract, personal liability of

officers for torts, punitive damages, and breach of contract. However, nowhere in its lengthy

recitation of evidence did Maximus “point out” what evidence supported each element of the

aiding and abetting claim. As described above, the portions of Maximus’ response that discussed

the aiding and abetting claim did not cite any evidence to support the assertions being made. The

record before us is not similar to that in Brewer & Pritchard, P.C., where the motion was

directed toward conspiracy and breach of fiduciary claims and the respondent made specific

references to the evidence as to each. See id. at 207; San Saba Energy, 171 S.W.3d at 331. Nor

are we faced with a record as in Aleman, where the court of appeals determined that the party

proceeded in a manner similar to the respondent in Brewer & Pritchard, P.C., did not expressly

connect any specific fact to the challenged elements, but because there were only two challenged

elements, breach of duty and causation, “[t]he sheer brevity of the evidence cited serve[d] to

adequately ‘connect . . . the facts to the challenged elements of the causes of action.’” Aleman,

227 S.W.3d at 310 (quoting Brewer & Pritchard, P.C., 73 S.W.3d at 207). Rather, we have

before us a record where the respondent, Maximus, recited a large amount of evidence but gave

no direction as to what evidence supported which of the six claims it addressed. A court is left to

ponder what evidence, if any, supports any claim.

We recognize that, under Brewer & Pritchard, P.C., to satisfy the requirement that a

respondent “point out” evidence supporting a claim, it is not necessary for the response to

address the evidence and the claims by laying out each element of each claim and matching up

the evidence to each element. See Brewer & Pritchard, P.C., 73 S.W.3d at 207–08. However,

one must do more than itemize the evidence and then, in a section totally separate from the

recitation of the evidence, offer general conclusions that “[t]he above evidence conclusively

establishes each element of the Plaintiff’s claims for aiding and abetting by the [appellees].” See

–15– San Saba Energy, 171 S.W.3d at 331 (reasoning that “holding that a nonmovant can avoid

summary-judgment by filing voluminous and complicated summary-judgment evidence along

with a response that states generally that a genuine fact issue has been raised as to each

element. . . . would place an unreasonable burden on the trial court and would violate the

requirement of Rule 166a(i) that the response must point out evidence that raises a genuine issue

of fact as to each challenged element”). We conclude that Maximus’s response to the no-

evidence summary judgment motion was insufficient under the requirements of Rule 166a(i).

See TEX. R. CIV. P. 166a(i); San Saba Energy, 171 S.W.3d at 330–31.

Additionally, we address the traditional motion for summary judgment filed by the

appellees. The part of appellees’ motion for summary judgment that it characterized as

traditional asserted that “the evidence proves that [appellees] did not know that a fiduciary

relationship existed between Castro and Maximus and, thus, could not have knowingly

participated in Castro’s alleged breach.” The affidavits filed by Faber and Vingerhoets in

support of the motion state that they “did not know” and “still do not know whether Castro owed

any fiduciary duties to Maximus.” No contrary evidence was offered in Maximus’s response.

See TEX. R. CIV. P. 166a(c) (“A summary judgment may be based on uncontroverted testimonial

evidence of an interested witness, . . . if the evidence is clear, positive and direct, otherwise

credible and free from contradictions and inconsistencies, and could have been readily

controverted.”); Carr v. Brasher, 776 S.W.2d 567, 571 (Tex. 1989) (affirming summary

judgment in favor of defendants because defendants’ affidavits filed in support of motion

negated the actual malice element of defamation, and plaintiff “presented no controverting

proof”). Maximus simply argued in a general way that “all the parties knew Castro was the

agent for Maximus” and “[w]hether agent or owner, the KTN Defendants were aware Castro

owed a fiduciary duty to Maximus.” However, no evidence is identified by which a trial court

–16– could determine the existence of a material issue of fact as to the knowledge element of the

aiding and abetting claim. See Ellis v. Renaissance on Turtle Creek Condo. Ass’n, Inc., 426

S.W.3d 843, 855 (Tex. App.—Dallas 2014, pet. denied) (“[Nonmovant’s] argument in his

summary judgment response does not constitute evidence and therefore cannot raise a fact

issue”).

The only specific response Maximus made to the affidavits was to raise objections in the

trial court contending that certain paragraphs are “inadmissible parole evidence and . . . self-

serving conclusory statements.” The record does not show that the objections were ruled upon.

On appeal, Maximus again contends that the affidavits are conclusory and also asserts that the

testimony offered was irrelevant. As in the trial court, Maximus’s argument that the affidavits

are conclusory does not advise us what about the affidavits makes them conclusory. 5 Because

Maximus describes no particular basis for this argument, it has been waived. See TEX. R. APP. P.

38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record.”); Radenovich v. Eric D. Fein, P.C. &

Assocs., 198 S.W.3d 858, 861 (Tex. App.—Dallas 2006, no pet.) (“Failure to cite authority or

provide substantive analysis waives an issue on appeal.”). Maximus asserts that “the affidavits

are without relevance regarding the purported knowledge Faber (para. 7) and Vingerhoets (para.

5) deny because they are limited in time to August 2011, with significant aiding and abetting

occurring after such date.” Maximus does not accurately describe the evidence. In their

affidavits, Faber and Vingerhoets state “until August 2011, Castro was the only person at

Maximus that KTN had any contact with or knowledge of.” However, Faber and Vingerhoets

also state that they “did not know” and “still do not know whether Castro owed any fiduciary

5 Maximus’s appellate brief states the following: “First the affidavit statements of Faber and Vingerhoets constitute no credible evidence as they are conclusory and not readily controverted. [CR 456-463] Conclusory statements in affidavits are not competent evidence to support a summary judgment because they are not credible or susceptible to being readily contradicted. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996); TEX. R. CIV. P. 166a(c).”

–17– duties to Maximus.” Moreover, Maximus did not object to the relevancy of the affidavits at trial.

See Brown v. Bank of Am., N.A., No. 05-12-01382-CV, 2013 WL 6196295, at *3 (Tex. App.—

Dallas Nov. 25, 2013, pet. denied) (mem. op.) (citing TEX. R. APP. P. 33.1) (rejecting appellant’s

relevancy argument “for lack of preservation” when appellant argued on appeal that bank’s

summary judgment evidence was irrelevant but did not object to the evidence in the trial court).

Accordingly, we reject Maximus’s relevancy argument.

The appellees’ evidence negated the knowledge element of the aiding and abetting claim,

and Maximus did not raise a genuine issue of material fact on that element. We conclude the

trial court did not err in granting summary judgment in favor of all appellees on Maximus’s

claim for aiding and abetting Castro’s breach of fiduciary duty. We decide Maximus’s second

issue against it.

III. COURT COSTS

In its third issue, Maximus asserts the trial court erred in “assessing the court costs”

against it. The trial court taxed the court costs against Maximus pursuant to Texas Rule of Civil

Procedure 162, which states in relevant part, “Any dismissal pursuant to this rule which

terminates the case shall authorize the clerk to tax court costs against the dismissing party unless

otherwise ordered by the court.” TEX. R. CIV. P. 162. Because we reverse in part and remand,

we also reverse the portion of the trial court’s order taxing the court costs against Maximus and

remand the issue for further consideration. See id.; DeClaire v. G & B Mcintosh Family Ltd.

P’ship, 260 S.W.3d 34, 49 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (reversing the

judgment of the trial court and remanding the issue of costs for further proceedings); Cessna

Aircraft Co. v. Aircraft Network, L.L.C., 213 S.W.3d 455, 468 (Tex. App.—Dallas 2006, pet.

denied) (same).

–18– IV. CONCLUSION

The trial court erred in granting summary judgment in favor of the KTN entities on

Maximus’s fraud claim because the no-evidence motion for summary judgment was legally

insufficient to address the fraud claim. Accordingly, we reverse the trial court’s summary

judgment as to the fraud claim and remand to the trial court for further proceedings on this issue.

We also reverse the portion of the trial court’s order taxing court costs against Maximus and

remand the issue for further consideration. We affirm the trial court’s summary judgment in

favor of all appellees as to the claim for aiding and abetting a breach of fiduciary duty.

/Douglas S. Lang/ DOUGLAS S. LANG 131688F.P05 JUSTICE

–19– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MAXIMUSALLIANCE PARTNERS, LLC, On Appeal from the 160th Judicial District Appellant Court, Dallas County, Texas Trial Court Cause No. DC-11-16379-H. No. 05-13-01688-CV V. Opinion delivered by Justice Lang. Justices Brown and Whitehill participating. DAN FABER, FRANK VINGERHOETS, ET AL., Appellee

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED in part and REVERSED in part.

We REVERSE the portion of the trial court’s judgment that rendered summary judgment in favor of the appellees on appellant, MaximusAlliance Partners, LLC’s fraud claim, and we REVERSE the trial court’s judgment with respect to court costs. In all other respects, the trial court’s judgment is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 17th day of February, 2015.

–20–