William Wyroski v. Danny R. Choate and Insultech of Texas, Inc., D/B/A Insultech ( 2008 )


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  •                            COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-07-262-CV
    WILLIAM WYROSKI                                                   APPELLANT
    V.
    DANNY R. CHOATE AND                                               APPELLEES
    INSULTECH OF TEXAS, INC.,
    D/B/A INSULTECH
    ------------
    FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
    ------------
    MEMORANDUM OPINION 1 ON REHEARING
    ------------
    I. INTRODUCTION
    On February 28, 2008, this Court issued an opinion affirming the trial
    court’s judgment. Appellant William Wyroski filed a motion for rehearing. After
    due consideration, we deny Wyroski’s motion for rehearing, but we withdraw
    1
    … See T EX. R. A PP. P. 47.4.
    our opinion and judgment dated February 28, 2008, and substitute the
    following. Our disposition of this case remains unchanged.
    This is a summary judgment appeal.       Wyroski sued Appellees Danny
    Choate and Insultech of Texas, Inc. (Insultech), claiming that he and Choate
    were equal partners of Insultech and that when he left Insultech, Choate failed
    to pay him half of Insultech’s book value as the two had purportedly verbally
    agreed.   Appellees moved for summary judgment, the trial court granted
    summary judgment, and now Wyroski brings four grounds 2 in this appeal
    challenging the summary judgment in favor of Choate and Insultech. We will
    affirm.
    II. F ACTUAL AND P ROCEDURAL B ACKGROUND
    In early 2003, Wyroski, who has over twenty years of experience in the
    business of installing and servicing heating, venting, and air conditioning
    (HVAC) systems, lost his job when his company downsized.            Choate had
    previously worked with Wyroski, and when Wyroski left his job, he, Choate,
    and a mutual friend discussed working in a HVAC business together.           The
    deposition testimony varied as to whether the three were to be equal partners
    2
    … Appellant uses the term “grounds” to describe the issues he presents
    on appeal; we, therefore, will similarly refer to his issues presented as grounds
    of error.
    2
    in the business or whether Choate was to be the boss and sole owner of the
    company. But Wyroski claimed that, even though many specifics of the joint
    ownership were not discussed and nothing was put into writing, the three
    nevertheless intended to be equal partners of Insultech.
    By late 2004, Wyroski and Choate were fighting, and Wyroski decided to
    leave Insultech (the mutual friend had left Insultech shortly after he began
    working there). Wyroski asked for half of the book value of Insultech, and,
    according to Wyroski’s original petition, Choate agreed to buy Wyroski “out of
    his 50% of the business using Insultech book values for the year end 2004 as
    the basis for the valuation of . . . Wyroski’s 50% share.”
    Choate never paid Wyroski, so Wyroski brought suit on breach of
    contract, quantum meruit, unjust enrichment, and promissory estoppel claims.
    After discovery, Choate and Insultech filed a combined traditional and no-
    evidence motion for summary judgment, asserting as one of four bases for
    summary judgment that Wyroski had no damages.          The trial court granted
    Choate and Insultech’s motion without stating the ground on which it based the
    summary judgment. Wyroski now appeals.
    III. S TANDARDS OF R EVIEW
    In a traditional summary judgment case, the issue on appeal is whether
    the movant met the summary judgment burden by establishing that no genuine
    3
    issue of material fact exists and that the movant is entitled to judgment as a
    matter of law.   T EX. R. C IV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 
    73 S.W.3d 211
    , 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 
    589 S.W.2d 671
    , 678 (Tex. 1979). The burden of proof is on the movant, and all
    doubts about the existence of a genuine issue of material fact are resolved
    against the movant. Sw. Elec. Power 
    Co., 73 S.W.3d at 215
    .
    W hen 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). Evidence that favors the movant’s
    position will not be considered unless it is uncontroverted. Great Am. Reserve
    Ins. Co. v. San Antonio Plumbing Supply Co., 
    391 S.W.2d 41
    , 47 (Tex. 1965).
    A defendant who conclusively negates at least one essential element of
    a cause of action is entitled to summary judgment on that claim. IHS Cedars
    Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W .3d 794, 798 (Tex.
    2004). Once the defendant produces sufficient evidence to establish the right
    to summary judgment, the burden shifts to the plaintiff to come forward with
    competent controverting evidence raising a genuine issue of material fact with
    regard to the element challenged by the defendant. Centeq Realty, Inc. v.
    Siegler, 
    899 S.W.2d 195
    , 197 (Tex. 1995).
    4
    After an adequate time for discovery, the party without the burden of
    proof may, without presenting evidence, move for summary judgment on the
    ground that there is no evidence to support an essential element of the
    nonmovant’s claim or defense.       T EX. R. C IV . P. 166a(i).   The motion must
    specifically state the elements for which there is no evidence. Id.; Johnson v.
    Brewer & Pritchard, P.C., 
    73 S.W.3d 193
    , 207 (Tex. 2002). The trial court
    must grant the motion unless the nonmovant produces summary judgment
    evidence that raises a genuine issue of material fact. See T EX. R. C IV. P. 166a(i)
    & cmt.; Sw. Elec. Power 
    Co., 73 S.W.3d at 215
    .
    When reviewing a no-evidence summary judgment, we examine the entire
    record in the light most favorable to the nonmovant, indulging every reasonable
    inference and resolving any doubts against the motion. Sudan v. Sudan, 
    199 S.W.3d 291
    , 292 (Tex. 2006). If the nonmovant brings forward more than a
    scintilla of probative evidence that raises a genuine issue of material fact, then
    a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 
    981 S.W.2d 266
    , 269 (Tex. App.—San Antonio 1998, pet. denied).
    IV. C HOATE AND INSULTECH’S S UMMARY J UDGMENT E VIDENCE
    In support of their “no damages” ground for traditional summary
    judgment, Choate and Insultech attached the affidavit of Insultech’s certified
    public accountant as summary judgment evidence. That affidavit establishes
    5
    that, under generally accepted accounting principles (GAAP), at the end of
    2004 Insultech’s book value was negative $159,314.           Insultech’s balance
    sheet, showing the breakdown of its assets, liabilities, and stockholder’s equity,
    is attached to the accountant’s affidavit.        Thus, Choate and Insultech
    conclusively negated the damages element of Wyroski’s claim—even if Wyroski
    was entitled to 50% of the book value of Insultech at the end of 2004, that
    value was negative.    See 
    Mason, 143 S.W.3d at 798
    .          Consequently, the
    burden shifted to Wyroski to present controverting summary judgment evidence
    raising a genuine issue of material fact concerning the book value of the
    company at the end of 2004. See Centeq Realty, 
    Inc., 899 S.W.2d at 197
    .
    Wyroski apparently attempted to meet this burden by attaching his
    deposition as summary judgment evidence. In his deposition, Wyroski attacks
    the valuation method used by Insultech’s accountant as reflecting an inherently
    unreliable figure because it failed to take into account earning capacity, going
    concern, or goodwill values. But Wyroski presented no summary judgment
    evidence that a book value calculation based on something other than GAAP
    should be used (i.e., using the items urged by Wyroski), was commonly used
    in the industry, or was actually agreed upon by he and Choate. In fact, the only
    potential summary judgment evidence proffered by Wyroski concerning the
    6
    company’s value was his own testimony that Choate had told him that the
    company had a $700,000 net profit.3
    3
    … After testifying that Choate had told him that the company had a
    $700,000 net profit, Wyroski testified to the following:
    Q.     Well, it sounds like that -- that your understanding of
    what the value of the company was always from what [Choate]
    was telling you.
    A.    Correct.
    Q.   Okay. Did you ever independently calculate the value
    of the company?
    A.    No, I did not.
    Q.  Did you ever see anything that reflected the value of
    the company at any time before you left, other than what [Choate]
    showed you . . . ?
    A.    No, I did not.
    Q.  Did you -- anybody else talk to you about the value of
    the company?
    A.    No.
    Q.    And do you have any other basis for estimating the
    value of the company at that time, in October -- the fall of ‘04,
    other than what you’ve told me about so far?
    A.    Just our conversations.
    7
    Wyroski’s deposition testimony concerning his belief as to the book value
    of the company in the fall of 2004, even viewed in the light most favorable to
    Wyroski, does not raise a genuine issue of material fact controverting the
    summary judgment evidence that Insultech had a negative book value at the
    end of 2004.4      See Anderson v. Snider, 
    808 S.W.2d 54
    , 55 (Tex. 1991)
    (stating that “[l]ay testimony is insufficient to refute an expert’s testimony” in
    summary judgment proceedings). Thus, Wyroski failed to meet the summary
    judgment burden that shifted to him when Choate and Insultech conclusively
    negated the damages element of Wyroski’s claim. See Centeq Realty, 
    Inc., 899 S.W.2d at 197
    . We hold that the trial court did not err by granting Choate and
    Insultech’s motion for summary judgment on Wyroski’s breach of contract
    claim.
    In the alternative, Wyroski asserts equitable claims against Choate for
    quantum meruit, unjust enrichment, and promissory estoppel. Choate filed a
    no-evidence motion for summary judgment on all claims, including these, and
    our evaluation of the record has uncovered no evidence of any amount of
    4
    … Although Wyroski testified that he once saw the $700,000 figure on
    Choate’s computer, Wyroski admitted that the numbers on Choate’s computer
    were a reflection of the “circle” of both incoming and outgoing money from
    Insultech. When specifically asked about where the $700,000 was, Wyroski
    said that it was in “[s]ome bank” where the money was “coming in” but
    “mostly going out.”
    8
    damages asserted by Wyroski against Choate concerning these equitable
    theories. Wyroski first claimed that he had worked without pay for a period of
    time but admitted that he received a weekly paycheck and a W2 form for most
    of the time that he was with the company. Wyroski further claimed that he had
    bought materials for the company without being fully reimbursed. Wyroski
    provided no specifics on exactly which materials he bought, where he bought
    them, how much he paid for them, or how much he was reimbursed. When
    questioned whether he had “any idea or concept to quantify . . . the amount
    you gave or the amount that you were reimbursed,” Wyroski admitted that he
    did not. And while he said that he could provide documents showing these
    amounts, Wyroski never produced any documents, to rebut Choate’s no-
    evidence motion for summary judgment concerning damages related to the
    equitable theories. Accordingly, we hold that the trial court did not err by
    granting Choate and Insultech’s no-evidence motion for summary judgment on
    Wyroski’s equitable claims.5
    5
    … Choate and Insultech are entitled to summary judgment because they
    conclusively negated the damage element of all of Wyroski’s claims and
    because Wyroski presented no evidence of damages on his equitable claims;
    consequently, we need not address the remaining grounds presented in this
    appeal by Wyroski. See FM Props. Operating Co. v. City of Austin, 
    22 S.W.3d 868
    , 872–73 (Tex. 2000) (holding where summary judgment does not specify
    grounds relied on, reviewing courts are to affirm if any ground is meritorious);
    Ross v. Arkwright Mut. Ins. Co., 
    892 S.W.2d 119
    , 130 (Tex. App.—Houston
    
    9 Va. C
    ONCLUSION
    Having determined that summary judgment was proper in this case, we
    affirm the trial court’s judgment.
    SUE WALKER
    JUSTICE
    PANEL A:    CAYCE, C.J.; HOLMAN and WALKER, JJ.
    DELIVERED: June 19, 2008
    [14th Dist.] 1994, no writ) (recognizing that because defendant is entitled to
    summary judgment based on its negation of damage element of plaintiff’s claim,
    it is unnecessary to consider remaining grounds presented in the motion).
    10