Vulcan Gas Company v. Civic Entertainment Group, LLC and National Geographic Partners, LLC

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-25-00432-CV

Vulcan Gas Company, Appellant v.

Civic Entertainment Group, LLC and National Geographic Partners, LLC, Appellees

FROM THE 201ST DISTRICT COURT OF TRAVIS COUNTY NO. D-1-GN-21-002102, THE HONORABLE DANIELLA DESETA LYTTLE, JUDGE PRESIDING

MEMORANDUM OPINION

Vulcan Gas Company appeals from the trial court’s final summary judgment in favor of appellees Civic Entertainment Group, LLC and National Geographic Partners, LLC. We affirm the trial court’s summary judgment.

BACKGROUND

Civic is a New York-based marketing agency that works with brands in many sectors including the entertainment industry; National Geographic is one of its clients who was searching for a venue for a private event during the 2017 annual SXSW conference in Austin. Vulcan is a bar and music venue in Austin. Over several months in late 2016, Civic and Vulcan negotiated the terms of Civic’s exclusive use of Vulcan for National Geographic’s event. In late January 2017, Civic and Vulcan executed a Venue Buyout and Service Agreement (Agreement), whereby Civic was granted a temporary lease of Vulcan’s premises for a nine-day period during

March 2017. The Agreement specified that Civic would pay Vulcan a one-time fee of $280,000—in installments—for venue rental and enumerated services. Among the services Vulcan agreed to provide was “open bar service,” which included Vulcan’s “customary offering of non-alcoholic beverages and mixers” plus “any and all draught and bottled beer, wine and the premium liquor including but not limited to specific brands to be determined and requested by” Civic. The Agreement also provided that the fee was inclusive of applicable sales and alcohol taxes.

The event proceeded in March 2017, and prior thereto Civic had made all required installment payments towards the $280,000, leaving one final payment of $80,000 due upon Civic’s “receipt of an appropriate invoice.” On April 12, 2017, Kirk Franceschini—one of Vulcan’s owners—emailed Civic seeking additional compensation beyond the agreed-upon flat fee, contending that it was owed an additional $227,516.82 based on the “actual bar consumption” at the event. Civic responded the same day, stating that the parties had explicitly agreed that the buyout was “inclusive of open bar throughout all hours of operation without any cap.” A few days later, after Vulcan and Civic conversed via phone, Civic reiterated its position in an email that the fee agreement had always been an “all-in-fee for the use of the venue, staff and beverage” and informed Vulcan that it “cannot go back [to its client] after the fact and request additional funds to cover costs outside of our contractual obligation.” Civic made its final installment payment on June 7, 2017, and did not hear anything further about the event for nearly four years.

On May 7, 2021, Vulcan filed this lawsuit for breach of contract, fraud, and quantum meruit, alleging that Civic and National Geographic failed to pay in full for alcoholic beverages at the 2017 event. After filing suit, Vulcan did not prosecute the suit for almost three

3

years, when it attempted to seek discovery from appellees, shortly after which the trial court denied Vulcan’s motion to reopen discovery and ordered the case to be set for trial within ninety days.

In June 2024, appellees filed a traditional and no-evidence motion for summary judgment. Vulcan filed a response to the motion, to which it attached the declaration of Franceschini and a draft of the Agreement containing some handwritten mark-ups, which was signed only by Vulcan. The trial court denied appellees’ motion.

In October 2024, appellees filed a second traditional and no-evidence motion for summary judgment, in which they represented that they had “combed through email records, talked to witnesses, and assembled a new and more robust summary judgment record.” Attached to this second motion was not only the same evidence as that attached to the first, but the following new evidence: the declaration of Taylor Tate, a Vice President of Civic during the events the subject of this suit; a January 13, 2017 voicemail left by a Vulcan representative for Tate; and several additional emails exchanged between the parties between December 2016 and May 2017. In the traditional motion, appellees argued that Vulcan’s claims were barred by the statute of limitations, that appellees had not breached the Agreement, that appellees had not defrauded Vulcan, and that Vulcan’s quantum meruit claim was barred as a matter of law because the Agreement controls the subject matter of this dispute. In the no-evidence motion, appellees asserted that Vulcan had no evidence to support certain elements of each of its claims. Vulcan filed a response to this second motion, attaching the following relevant evidence: a new declaration of Franceschini, the same marked-up draft of the Agreement Vulcan had attached to its prior response, and email exchanges from December 2016 and January 2017 between

4

representatives for the parties. The trial court granted appellees’ second motion for summary judgment without specifying its reasons, and Vulcan perfected this appeal.

DISCUSSION

On appeal, Vulcan argues in two issues that (1) the judgment must be reversed because the same judge that ruled on appellees’ prior summary-judgment motion was required to rule on the subject summary-judgment motion pursuant to Travis County Local Rule 1.5, and (2) Vulcan filed its lawsuit within the four-year statute of limitations and thus summary judgment on the ground of limitations was improper.

As to Vulcan’s first issue, Travis County Local Rule 1.5 (“Motions Challenging a Prior Ruling”) provides,

A request to be heard on a motion for new trial; motion to modify, correct, reform, or reconsider; or any other motion challenging a prior ruling, except on by default, must be presented to the judge who made the ruling, including a visiting judge, if available.

Contact the Court Administrator’s office to determine if the visiting judge who made the ruling is available.

Travis Cnty. Loc. R. 1.5. This rule serves as an exception to the general rule providing for a central docket in Travis County, except for specialized dockets, meaning that “unless a case is specially assigned to a particular judge . . . each hearing or trial in a case may be heard by any judge.” See id. R. 1.2, 1.3. A visiting judge, Judge Joe Carroll, denied appellees’ first summary- judgment motion, while Judge Daniella DeSeta Lyttle heard and ruled on appellees’ second motion. Vulcan argues on appeal that Local Rule 1.5 was violated when Judge Carroll did not rule on appellees’ second summary-judgment motion because the latter motion served as a “motion challenging a prior ruling.” See id. R. 1.5.

5

However, Vulcan did not object before or at the April 1, 2026 summary-judgment hearing to Judge Lyttle’s presiding over and ruling on the second summary-judgment motion. It was not until after Judge Lyttle granted the motion that Vulcan—in a motion for new trial—for the first time challenged Judge Lyttle’s authority to hear the second motion. As a prerequisite to presenting a complaint for appellate review, the record must demonstrate that the complaint was made to the trial court by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). A “timely” objection is one “interposed at a point in the proceedings which gives the trial court the opportunity to cure any alleged error.” Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.—Dallas 2015, pet. denied) (quoting Driver v. Conley, 320 S.W.3d 516, 518 n.3 (Tex. App.—Texarkana 2010, pet. denied)); see In re S.N.Z., 421 S.W.3d 899, 908 (Tex. App.—Dallas 2014, pet. denied) (holding that “Mother’s objection [to assigned judge] was not timely because it was filed after the assigned judge had heard and ruled on the motions”).

This Court has held that a party’s failure to object to a purported Rule 1.5 violation until after the allegedly incorrect judge has ruled on the matter does not constitute a timely request or objection that preserves the complaint for appellate review. See Enriquez v. Crain, No. 03-17-00363-CV, 2018 WL 3320986, at *2–3 (Tex. App.—Austin July 6, 2018, no pet.) (mem. op.) (considering predecessor rule to Rule 1.5). While Vulcan cites a case holding that a failure to comply with the mandatory provisions in Texas Rule of Civil Procedure 18a for the recusal and disqualification of a judge warrants reversal, that rule and case are distinguishable and inapplicable here. See Feist v. Sekaly, 739 S.W.2d 491, 492 (Tex. App.— Beaumont 1987, no writ); see Tex. R. Civ. P. 18a(b) (requiring motion to recuse or disqualify judge to be filed “as soon as practicable after the movant knows of the ground stated in the motion”), 18b (listing grounds supporting recusal or disqualification). Thus, even assuming that

6

the alleged violation of Rule 1.5 was error and of the reversible type, Vulcan was required to preserve such error by making a timely objection to Judge Lyttle’s hearing and ruling on the motion. See Tex. R. App. P. 33.1(a). It failed to do so, and we accordingly overrule Vulcan’s first issue.

As to Vulcan’s second issue—whether summary judgment on the ground of limitations was proper—we first observe that the trial court granted appellees’ combined traditional and no-evidence motion without specifying the reasons for its ruling. When a trial court’s summary-judgment order does not specify the grounds on which it is based, the appealing party must negate each ground upon which judgment could have been granted to overturn the ruling on appeal. See Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 226 (Tex. 2022). That is, if the appellant does not challenge each independent ground on which the trial court could have granted summary judgment, the appellate court must affirm. See id. at 226–27; Daneshjou Fam. Ltd. P’ship v. VSD Tr. 2016-1, No. 03-24-00070-CV, 2026 WL 31155, at *4 (Tex. App.—Austin Jan. 6, 2026, no pet. h.) (mem. op.) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995)).

Appellees moved for no-evidence summary judgment on each of Vulcan’s claims—breach of contract, fraud, and quantum meruit—identifying the elements of each claim for which Vulcan had no evidence. Appellees also moved for traditional summary judgment on each of Vulcan’s three claims not only on the grounds of limitations but also on the grounds that they had not breached the Agreement as a matter of law, that they had made no fraudulent misrepresentations or omissions on which Vulcan had justifiably relied, and that the Agreement’s existence forecloses recovery on the theory of quantum meruit. On appeal, Vulcan does not challenge any of these other grounds or attempt to identify any evidence in opposition

7

to the no-evidence portion of appellees’ motion. Because Vulcan failed to challenge these independent grounds for affirming the trial court’s summary judgment, we must affirm it on those unchallenged grounds. See Daneshjou Fam. Ltd. P’ship, 2026 WL 31155, at *4. We accordingly overrule Vulcan’s second issue.

CONCLUSION

Having overruled Vulcan’s issues, we affirm the trial court’s final summary judgment.

__________________________________________

Karin Crump, Justice

Before Chief Justice Byrne, Justices Theofanis and Crump Affirmed Filed: August 6, 2026