Patricia Cantu v. Frye and Associates, PLLC, Phyllis R. Frye, and Salvador Benavidez ( 2014 )

Opinion issued June 12, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00868-CV
———————————
PATRICIA CANTU, Appellant
V.
FRYE & ASSOCIATES, PLLC, PHYLLIS R. FRYE, AND SALVADOR
BENAVIDEZ, Appellees
On Appeal from the 189th District Court
Harris County, Texas
Trial Court Case No. 2010-66038
MEMORANDUM OPINION
After the trial court resolved this case on cross-motions for summary
judgment, appellant Patricia Cantu appealed the judgment entered in favor of the
appellees, Frye & Associates, PLLC, Phyllis R. Frye, and Salvador Benavidez. In
three issues, she argues that summary judgment should not have been granted as to
her causes of action and that summary judgment should have been granted in her
favor with respect to appellees’ counterclaims.
We affirm.
Background
Patricia Cantu joined the law firm of Simoneaux and Frye, PLLC as an
associate attorney. Attorneys Jerry Simoneaux and Phyllis Frye each owned a 50%
interest in the firm. Approximately eight months after Cantu became an associate,
Simoneaux decided to sell his ownership interest and leave the law firm. Cantu
became a partner by purchasing from Simoneaux a 30% ownership interest in the
firm. Frye purchased an additional 10% interest, and Salvador J. Benavidez
purchased the remaining 10%.
On October 8, 2008, Simoneaux and Frye, the two managers of the firm,
held a special meeting at which Cantu and Benavidez were admitted as members
and Simoneaux resigned as manager. A special meeting of the members was also
held that day. The minutes of that meeting stated the partners’ ownership interests
as: Frye 60%, Cantu 30%, and Benavidez 10%. The minutes state that the firm’s
name would be changed to Frye and Cantu, PLLC; that it would continue to be
governed by the Company Agreement which was adopted in 2007 by the firm then
known as Simoneaux, Frye, and Thomason and later known as Simoneaux and
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Frye; and that profits and monthly earnings would be shared as set forth in the
minutes. The minutes were signed by Frye, Cantu, and Benavidez.
Among other things, the Company Agreement provided that the firm should
have at least one manager. Because Simoneaux resigned as manager and no other
person was appointed manager, Frye remained as the firm’s sole manager.
According to the Company Agreement, the manager had “the sole and exclusive
control of the management, business and affairs of the Company,” including,
among other things “selecting and changing the authority and responsibility of
lawyers, accountants, and other advisers and consultants.” The Company
Agreement provided the firm with certain remedies for a member’s default,
including “forfeiture of the Defaulting Member’s Membership Interest,” and it
established a procedure for expulsion of a member for cause:
15.04 Expulsion. A Member may be expelled from the
Company by unanimous vote of all other Members (not including the
Member to be expelled) if that Member (a) has willfully violated any
provision of this Agreement; (b) committed fraud, theft, or gross
negligence against the Company or one or more Members of the
Company; or (c) engaged in wrongful conduct that adversely and
materially affects the business or operation of the Company. Such a
Member shall be considered a Defaulting Member, and the Company
or other Members may also exercise any one or more of the remedies
provided for in Article 15.01. The Company may offset any damages
to the Company or its Members occasioned by the misconduct of the
expelled member against any amounts distributable or otherwise
payable by the Company to the expelled Member.
3
Over the course of the year following Cantu’s purchase of an ownership
interest in the firm, she used the law firm’s debit card for numerous personal
expenses, totaling $8,468.63. In her deposition, Cantu admitted that she had never
discussed the personal use of the firm debit card with Frye or the office manager,
Jeffrey Forbes. She testified that the law firm had no policy prohibiting the use of
the firm’s debit card for personal expenses, “just so long as it was repaid . . . on
payday.”
Meanwhile, Cantu’s clients were not paying their bills. Cantu explained how
her clients’ nonpayment of their bills related to her use of the firm’s debit card for
her personal expenses:
The income that I was receiving from the firm, the money wasn’t
coming in because the collections weren’t being done . . . I even tried
sending letters with the invoices trying to get people . . . to pay. And
so . . . I would use the card . . . as an advancement, and then pay it
back when I got paid.
Cantu’s paycheck continued to shrink. In various pleadings, in her affidavit, and at
her deposition, Cantu said that her outstanding accounts receivable were not
collected because Forbes failed or refused to collect the fees in her cases.
In addition, the undisputed evidence was that Cantu did not repay her
personal use of the debit card in full each payday. She testified as follows:
Q. Well, you didn’t actually pay it back when you got paid,
because by October of 2009, you were down almost $9,000,
and it was going up every month.
4
A. That’s right, because my check was getting smaller.
Q. Right. And your check was getting smaller because your clients
weren’t paying their bills, right?
A. Right. But I was still working.
Q. Right. But did anyone at the law firm authorize you to use the
debit for your own personal expenses to the tune of $2,000 a
month, because your clients weren’t paying their bills?
A. I didn’t ask anyone.
Q. Well, what made you think it would be okay for you to do that
then?
A. Because I was an owner of the company.
Q. So, in—your mind-set, as you’re doing this, was that you were
30-percent owner, so you could use the firm debit card for
whatever you wanted and pay them back whenever you felt like
it, right?
A. Sure.
According to her affidavit, Frye first learned of Cantu’s use of the debit card
for personal expenses on October 7, 2009. That day, she sent Cantu an email
accusing her of using “the firm’s debit card to bilk the firm in the amount of
$8,468.63—in less than six months—since April 13, 2009. . . . for such things as
music, ice cream, groceries, meals, clothing, medicine, cash and your health
insurance premiums or co-pays.” Frye denied having given Cantu permission to
use the debit card in this manner. She also averred that she first learned that same
day that Cantu had more than $33,239.52 in outstanding fees owed to the firm,
5
which she characterized as “very past due or uncollectable.” Frye closed Cantu’s
debit card, changed the office locks, and instructed Cantu to resign from the firm
and vacate her office within two days. She also told Cantu that her portion of
outstanding client fees would be credited toward what she owed the firm and that
she had until the end of November 2009 to repay an unrelated personal loan.
Finally, Frye warned that if Cantu did not repay the money by November 2009,
then she would file criminal charges with the police and district attorney, file a
complaint with the State Bar “to have your license suspended,” and approach
“every judge that you get work from and let them know that you stole money from
our firm.”
Cantu did not resign, and on October 13, 2009, the firm held a meeting
where Frye and Benavidez voted to expel her pursuant to Article 15.04 of the
Company Agreement. The minutes of that meeting state, “The vote was unanimous
as prescribed by Section 15.04.” The minutes reflect that Cantu was “expelled”
from the firm, that she had “zero membership interest,” that she had until the end
of the month to provide letters from clients who wished to follow her so that she
could take their files and trust accounts, and that the usual split of fees between her
and the firm remained through the end of the month.
Cantu repaid the money owed by August 16, 2010. Two months later, she
filed suit against Frye & Associates, PLLC (the successor to Frye and Cantu,
6
PLLC), plus Frye and Benavidez individually. She alleged causes of action for:
(1) civil theft; (2) statutory and common-law fraud, in connection with her
purchase of stock in the firm; (3) common-law fraud, in connection with her
expulsion from the firm; and (4) conspiracy and aiding and abetting, in connection
with her expulsion from the firm. 1 Frye, Benavidez, and the law firm
counterclaimed for the bringing of a frivolous lawsuit, breach of fiduciary duty,
and theft of property.
Approximately one year later, the appellees filed a no-evidence motion for
summary judgment on the grounds that there was no evidence of any false
representation, reliance thereon, or damages that would support Cantu’s claims for
statutory or common-law fraud. The motion also argued that there was no evidence
of any underlying tort or damages to support her conspiracy and aiding and
abetting causes of action.
Instead of responding with summary-judgment evidence, Cantu filed three
motions to compel discovery, moved for a continuance of the no-evidence motion
for summary judgment, and noticed the depositions of Benavidez and Forbes.
However the depositions were quashed because they were scheduled days before
Christmas and without any consultation with the witnesses as to their availability.
1
She also sued for defamation. The trial court granted summary judgment in
the appellees’ favor as to the defamation claims, and Cantu does not
challenge that ruling on appeal.
7
The appellees amended their answer and counterclaims, adding claims for
breach of contract and unjust enrichment. Cantu filed a no-evidence motion for
summary judgment as to the counterclaims. In February 2012, the appellees
responded to her no-evidence motion for summary judgment and filed another
motion for summary judgment on her claims, arguing both traditional and no-
evidence grounds.
In their second no-evidence summary-judgment motion, the appellees
argued that there was no evidence of: (1) any appropriation of Cantu’s property,
(2) any damages caused by such an appropriation, or (3) any wrongful taking of
Cantu’s property. The motion for summary judgment stated that her
“‘misappropriation’ claim fails as a matter of law,” that there was no evidence of
causation in regard to Cantu’s purchase of an interest in the firm, and that “nothing
they did or failed to do is a cause of [her] purchasing her interest, or a cause of her
paying too much or too little for that interest.” They alleged that conspiracy and
“aiding and abetting” were derivative claims and that there was no evidence that
they had engaged in any tort or wrongful action to which conspiracy or “aiding and
abetting” could apply. In addition, they argued that it was “unclear how
shareholders could ever fit under the umbrellas of co-conspirators with the
company that they own,” but in any event, there was “no evidence of any
conspiracy, and no evidence of any damages caused by the alleged conspiracy.”
8
In their traditional motion for summary judgment, the appellees asked the
court to take judicial notice of its file, including business records of the firm. They
argued that the entity “can have done nothing to harm [Cantu] with respect to her
ownership interest.” They argued that because Cantu had all the knowledge the
entity had, there could be no cause of action or recovery against the entity itself.
They also argued that the “summary judgment proof establishes that the rules of
the entity were complied with and therefore there can be no claim against the
individual other owners that compliance with the rules somehow damaged the
Plaintiff.” They attached the following summary-judgment evidence:
• minutes of the October 8, 2008 meeting;
• the Company Agreement;
• the October 7, 2009 email from Frye to Cantu, with account
statements showing Cantu’s use of the debit account for
personal expenses and summaries of her uncollectible accounts
receivable;
• minutes from the October 13, 2009 meeting when Cantu was
expelled; and
• excerpts from the Texas Bar Journal showing a prior
disciplinary action against Cantu.
Cantu did not respond with summary-judgment evidence. Rather, she
amended her petition to add claims for conversion and “fraud by nondisclosure,”
and to revise the aiding-and-abetting claim to one for “conspiracy and
participating, assisting or encouraging theft and fraud.” She also added “vicarious
9
liability—respondeat superior” as a theory of the firm’s liability. Then she filed
motions to compel additional discovery, and the ensuing discovery disputes
occupied the better part of two months.
After Cantu’s deposition in March 2012, the appellees supplemented their
motion for summary judgment, arguing that the summary-judgment evidence
conclusively showed that Cantu was lawfully expelled from the firm for
wrongfully using the firm’s funds. In addition to documents previously attached to
the summary-judgment motion, they also included excerpts from Cantu’s
deposition.
Cantu responded to the motions for summary judgment with objections and
evidence. She argued that the no-evidence motion lacked specificity, noting that
the appellees referred to her “misappropriation” claim and arguing that she did not
bring a claim for “misappropriation.” She objected to appellees’ failure to
“reference any specific evidence in support of their motion,” their request that the
court take judicial notice of their business records, and Frye’s affidavit. As
summary-judgment proof, she attached several pleadings and an affidavit sworn
approximately three weeks after her deposition. She averred that with respect to
her purchase of a share in the firm from Simoneaux, she relied on the following
representations made by Frye: that she would be an equal partner except in regard
to percentage ownership; that she would have access to research and educational
10
materials and administrative staff; and that the office manager would help her with
appointments, scheduling, and collection of fees. In her affidavit, Cantu stated that
she did not read the “exhaustive Company Agreement” because she “relied on
Frye’s representations” that she would be an equal partner except in regard to
percentage ownership. Cantu averred, “She explicitly told me that I could rely on
her and unilaterally opted to change the name of the company to Frye and Cantu,
PLLC thus assuring me that what she was telling me was true.”
In her affidavit, Cantu also stated that all of the members of the firm used
their debit cards for personal expenses. As to her use of the debit card, she
asserted:
It is not true that I needed permission from Phyllis Frye to use my
debit card for purchases or cash withdrawals. As owner of the
company, I was entitled to use the debit card assigned to me. I was not
the only one who had a debit card. Phyllis Frye, Salvador Benavidez
and Jeffrey Forbes all had debit cards. A review of the operating
account statement produced by the defendants shows that every
person who had a debit card used it for both business and personal
reasons.
The operating account statement to which she refers was not attached as summary-
judgment evidence. She also averred that her accounts receivable had not been
collected because Forbes had not done his job and that Frye violated the Company
Agreement by construing section 15.01(g) out of context in connection with her
expulsion from the firm. As to the wrongfulness of her expulsion, Cantu attested:
11
Frye and Benavidez accused me of having breached the Firm’s
“bylaws” and that the breach subjected me to expulsion and forfeiture
of my ownership interest in the Firm. Frye put the matter to a vote and
she and Benavidez immediately voted to formally expel me from the
Firm and to divest me of my 30% ownership interest without
compensation because, according to them, I was guilty of fraud, theft
and gross negligence against the Company or one or more Members
of the Company. Frye and Benavidez aiding and abetting each other,
and in furtherance of their conspiracy, effectively defrauded me of my
ownership interest in the Firm, tortuously [sic] interfered with the
operation of my law practice and tried to take my clients away from
me.
She attached the following documents to her affidavit:
• the Company Agreement;
• account statements that show her income from legal fees with
deductions made each month for such things as “cash advance”
and “reimbursables” and notations such as “total owed to firm;”
• a letter from Frye and Associates, PLLC dated August 16, 2010
showing that she paid her debt to the firm in full;
• a transcript of an audiotape she made of the October 13, 2009
meeting;
• a summary of her accounts receivable showing many had been
written off by the firm because the clients refused to pay; and
• the October 7, 2009 email from Frye to Cantu.
Cantu filed a separate response to the traditional motion for summary
judgment. In it, she objected to the request that the court take judicial notice of
business records filed in the case, the appellees’ failure to “incorporate by
reference” Frye’s affidavit (arguing that their identification of the exhibit was
12
insufficient and asking the court to strike the affidavit), and the substance of Frye’s
affidavit as “unsubstantiated opinion” that was conclusory as to Cantu’s use of the
debit card being for personal expenses. Cantu again attached her affidavit with
exhibits as controverting summary-judgment evidence. As to the motion itself, she
argued that it was conclusory and not sufficiently specific to give her fair notice of
the appellees’ contentions with regard to her causes of action.
After further discovery disputes, the trial court granted summary judgment
in favor of the appellees, who then nonsuited their counterclaims. The appellate
record does not include a transcript from any summary-judgment hearing. The
summary judgment order does not specify the grounds upon which it is based or
which of the various motions was granted. It simply states, “Came to be heard
Defendants’ Motion for Summary Judgment and the Court, after reviewing the
pleadings of the parties and oral hearing arguments, is of the opinion that the
motion is meritorious and therefore GRANTED.” Cantu filed a motion for new
trial in which she reiterated her objections to the form of the motions for summary
judgment, to the request for the court to take judicial notice of business records on
file with the court, and to the form and substance of Frye’s affidavit. Cantu asked
the court to rule on her objections and grant her a new trial. The trial court denied
Cantu’s motion for new trial and did not rule on her evidentiary objections. Cantu
appealed.
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Analysis
I. Appellees’ motions for summary judgment
The appellees filed three motions seeking summary judgment in this case.
The first was a motion filed in October 2011. The court granted that motion in part,
as to the defamation claims, but it did not rule at that time on the other grounds for
summary judgment included in that motion, i.e., appellees’ no-evidence summary
judgment grounds as to Cantu’s other causes of action. The second motion for
summary judgment was filed in February 2012, and the third was a supplemental
motion filed in March 2012. The grounds and arguments in these summary-
judgment motions are not identical.
In her first two appellate issues, Cantu challenges the trial court’s summary
judgment on both traditional and no-evidence grounds, with specific reference to
the February and March 2012 motion and supplement. She challenges the
sufficiency of both motions, and she argues that the summary-judgment evidence
presented a genuine issue of material fact sufficient to defeat summary judgment.
The purpose of a traditional motion for summary judgment is not to deprive
a litigant of his right to trial by jury, but to eliminate patently unmeritorious claims.
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n.5 (Tex. 1979).
The party moving for traditional summary judgment bears the burden of showing
that no genuine issue of material fact exists and that it is entitled to judgment as a
14
matter of law. TEX. R. CIV. P. 166a(c); see also Provident Life & Accident Ins. Co.
v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A defendant moving for traditional
summary judgment must conclusively negate at least one essential element of each
of the plaintiff’s causes of action or conclusively establish each element of an
affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.
1997).
A no-evidence motion for summary judgment is essentially a directed
verdict granted before trial, to which we apply a legal-sufficiency standard of
review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581–82 (Tex. 2006). A party
may move for no-evidence summary judgment if, after adequate time for
discovery, there is no evidence of one or more essential elements of a claim or
defense on which the nonmovant would have the burden of proof at trial. TEX. R.
CIV. P. 166a(i). The motion must state the elements as to which there is no
evidence. Id. The reviewing court must grant the motion unless the nonmovant
produces summary-judgment evidence raising a genuine issue of material fact. Id.;
Mack Trucks, 206 S.W.3d at 582. A genuine issue of material fact exists if the
nonmovant produces evidence that would enable reasonable and fair-minded jurors
to differ in their conclusions. Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.
2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005)).
15
We review de novo the trial court’s ruling on a motion for summary
judgment. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d
844, 848 (Tex. 2009). Grounds for summary judgment must be stated in the
motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342–43 (Tex.
1993). If the summary judgment does not specify the grounds on which it was
granted, the appealing party must demonstrate that none of the proposed grounds is
sufficient to support the judgment. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76,
79 (Tex. 1989). A reviewing court considers the evidence presented in the motion
and response in the light most favorable to the party against whom the summary
judgment was rendered, crediting evidence favorable to that party if reasonable
jurors could, and disregarding contrary evidence unless reasonable jurors could
not. Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848. A matter is
conclusively established if reasonable people could not disagree as to the
conclusion to be drawn from the evidence. City of Keller, 168 S.W.3d at 815–16.
To preserve objections to the form of summary-judgment evidence for
appeal, a party asserting the objections must obtain a ruling at or before the
summary-judgment hearing. Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied); see TEX. R. APP. P. 33.1(a)(1); TEX. R. CIV.
P. 166a(f). “[A] trial court’s ruling on an objection to summary-judgment evidence
is not implicit in its ruling on the motion for summary judgment.” Delfino v. Perry
16
Homes, 223 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (citing
Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex. App.—San Antonio
2000, no pet.)). Objections to hearsay, improper authentication, or lack of
foundation are defects in form, which require a ruling for appellate review.
Williams v. Bad–Dab, Inc., No. 01–11–00102–CV, 2012 WL 3776347, at *6 (Tex.
App.-Houston [1st Dist.] Aug. 30, 2012, no pet.) (mem. op.); see Grand Prairie
Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (per curiam) (lack
of personal knowledge is defect in form); Stewart v. Sanmina Tex. L.P., 156
S.W.3d 198, 207 (Tex. App.—Dallas 2005, no pet.) (hearsay is defect in form). A
defect of substance, such as an objection that statements in an affidavit are
conclusory, may be raised for the first time on appeal. See Green v. Indus.
Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.]
1999, no pet.).
In this case, Cantu’s petition included causes of action for conversion, theft,
statutory and common-law fraud based on two separate factual allegations,
conspiracy, and aiding and abetting. The appellees filed three different motions for
summary judgment, which identified both traditional and no-evidence grounds, at
times raising legal arguments to negate more than one of Cantu’s causes of action.
Cantu responded separately to the appellees’ traditional and no-evidence motions,
presenting identical summary-judgment evidence. On appeal she challenged both
17
the form of the February and March 2012 motions and the merits of the court’s
ruling.
We address the arguments and evidence on a claim-by-claim basis to
determine if the trial court’s grant of summary judgment was properly based on
any expressed ground as to each cause of action that comprises a part of Cantu’s
lawsuit.
A. Conversion and theft claims
Cantu argues that the trial court erred by granting the appellees’ traditional
motion for summary judgment on her claims for conversion and theft. She also
contends that the no-evidence motion for summary judgment on these claims was
legally inadequate because it did not identify the causes of action for conversion
and theft and instead referred to her “misappropriation claims.”
The motion argued that these claims fail because the evidence conclusively
established that Cantu was lawfully expelled from the firm. Cantu first argues that
the trial court erred in granting summary judgment on traditional grounds because
the motion fails to state the ground upon which it is made. She relies on Golden
Triangle Energy v. Wickes Lumber, 725 S.W.2d 439 (Tex. App.—Beaumont 1987,
no writ), for the proposition that the grounds for summary judgment must be
specifically stated in the motion and cannot be supplied by a general prayer for
relief. Golden Triangle Energy, 725 S.W.2d at 441. We, of course, find no cause
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for debate with this statement of black-letter law. See TEX. R. CIV. P. 166a;
Richards v. Transocean, Inc., 333 S.W.3d 326, 329 (Tex. App.—Houston [1st
Dist.] 2010, no pet.). However, we disagree with Cantu’s contention that the
motion failed to state the ground upon which it was made.
Among other things, Cantu pleaded causes of action for conversion and
theft. Conversion is the wrongful assumption and exercise of dominion and control
over the personal property of another to the exclusion of, or inconsistent with, the
owner’s rights. Burns v. Rochon, 190 S.W.3d 263, 267–68 (Tex. App.—Houston
[1st Dist.] 2006, no pet.) (citing Waisath v. Lack’s Stores, Inc., 474 S.W.2d 444,
447 (Tex. 1971)); see Eun Bok Lee v. Ho Chang Lee, 411 S.W.3d 95, 108–09 (Tex.
App.—Houston [1st Dist.] 2013, no. pet.). To establish a claim for conversion, a
plaintiff must prove that (1) the plaintiff owned, possessed, or was entitled to
possess the property; (2) the defendant unlawfully and without authorization
assumed and exercised control over the property to the exclusion of, or inconsistent
with, the plaintiff’s rights as an owner; (3) the plaintiff demanded return of the
property; and (4) the defendant refused to return the property. Burns, 190 S.W.3d
at 268.
Likewise, a person commits theft if she unlawfully appropriates property
with intent to deprive the owner of it. TEX. PENAL CODE ANN. § 31.03(a) (West
Supp. 2012); see TEX. CIV. PRAC. & REM. CODE ANN. § 134.002(2) (theft is
19
defined by the Penal Code). To appropriate property means “to acquire or
otherwise exercise control over property other than real property,” or to transfer
title to property to one other than the property’s owner. TEX. PENAL CODE ANN.
§ 31.01(4).
For both causes of action, there is a common element that the defendant
must have acted unlawfully in taking or appropriating the property interest.
Considering that this argument, which was raised in the motion for summary
judgment, specifically applies to Cantu’s conversion and theft claims, we hold that
the grounds were sufficiently specific. Cf. Nall v. Plunkett, 404 S.W.3d 552, 556
(Tex. 2013) (traditional summary-judgment motion arguing specifically that Texas
does not recognize social-host liability and generally that defendants owed no duty
to plaintiff was specific enough to include negligent-undertaking claim).
On the merits, Cantu’s argument appears to be that the appellees acted
improperly in expelling her from the firm because there was a lack of proof that
she committed fraud, theft, or gross negligence, as provided in the “Expulsion”
clause of the Company Agreement, Section 15.04. The appellees presented as
summary-judgment evidence excerpts from Cantu’s deposition in which she
admitted using the company debit card for personal expenses. And she said that as
a part owner, she was entitled to use the debit card for personal expenses and repay
the firm at her pleasure, though she also admitted that she had no permission or
20
agreement from any other member to do so. The appellees also presented the
minutes of the October 2009 meeting showing that the members were present, that
Frye moved for Cantu’s expulsion under Section 15.04(b), and that both Frye and
Benavidez voted to expel Cantu from the firm. 2
The Company Agreement does not define fraud, theft, or gross negligence.
Theft is defined by the Texas Penal Code as the unlawful appropriation of property
with intent to deprive the owner of it. See TEX. PENAL CODE ANN. § 31.03(a). To
appropriate property means “to acquire or otherwise exercise control over property
other than real property.” Id. § 31.01(4). Intent to deprive the owner of the property
is evaluated at the time of the offense, and evidence of actual deprivation may be
2
Cantu argues that Frye’s affidavit contains an “unsubstantiated factual
conclusion” with respect to her expulsion from the firm, and that it therefore
is not competent summary-judgment evidence. The contention that a portion
of an affidavit submitted as summary-judgment evidence was conclusory is
an objection to the substance of the affidavit, which we must address. See
Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex. App.—
Houston [1st Dist.] 1999, no pet.). The disputed statement summarizes the
minutes of the meeting, as to which Cantu has made no objection. However,
because Frye’s statement provides the underlying facts—the meeting
minutes—based upon her own personal knowledge, we hold that it is not
conclusory as to any factual assertion, and we overrule Cantu’s objection. To
the extent we can infer that Cantu also complains that the affidavit embodies
a legal conclusion as to the validity of the board’s action, the bylaws did not
require a specific quantum of proof to substantiate an allegation of theft,
fraud, or other action that subjected a partner to expulsion. All that was
required was a unanimous vote by the members other than the member being
expelled, and the summary-judgment proof shows that this was satisfied.
21
evidence of intent to deprive. See Rowland v. State, 744 S.W.2d 610, 612 (Tex.
Crim. App. 1988).
Here, the appellees’ summary-judgment evidence showed that Cantu
appropriated company funds by using the debit card for personal expenses; that she
did so without consent of the company, a manager of the company, a majority of
the members, or in accordance with the distribution provisions in the Company
Agreement; and that she actually deprived the company of the money, which is
evidence of intent. The evidence shows that the two other members of the
company, Frye and Benavidez, voted to expel her, in conformity with the
Company Agreement. Finally, the Company Agreement provides a choice of
remedies under Section 15.01. Forfeiture is identified as a remedy for the default of
a member under Section 15.01(g).
Cantu presented her own affidavit as controverting summary-judgment
evidence. In it, she averred that she did not need permission and was entitled to use
the debit card for personal expenses because she owned 30% interest in the firm.
She averred that contrary to the contents of the minutes from the October 2009
meeting, it was not a regularly called meeting, but a specially called meeting. And
she alleged that her expulsion was not done in accordance with the by-laws:
Additionally, Article XV of the Company Agreement refers to the
default of a member for failure to contribute. Section 15.01(g) is a
remedy provided under Article XV when a member does not
contribute by the time required or all or any portion of a Capital
22
Contribution that member is required to make in the Company
Agreement. Frye violated the Company Agreement when she
deliberately took Article XV, Section 15.01(g) out of context and used
it for her personal benefit to expel me from my own company. My
expulsion was not according to the by-laws, and the meeting and
voting were a sham by Frye and Benavidez to rob me of my
ownership interest in the company.
Although Cantu’s summary-judgment evidence offers her differing
interpretation of the Company Agreement, we find no evidence that actually
contradicts the appellees’ summary-judgment evidence in this regard. To the
contrary, we conclude that the summary-judgment evidence conclusively shows
that the appellees’ actions in expelling Cantu and forfeiting her interest were not
unlawful.3 Section 15.04 of the Company Agreement incorporated the remedies of
Section 15.01 by reference. Cantu’s affidavit is consonant with the appellees’
summary-judgment evidence that they held a meeting, confronted her with the
allegations of theft and gross negligence, voted “unanimously” (as defined in the
Company Agreement) to expel her, and forfeited her ownership interest as
provided for in Section 15.01(g).
3
Cantu also argues that the court erred by not ruling on her objections to the
following summary-judgment evidence: (1) the request for the court to take
judicial notice of its file, (2) the failure of the appellees to incorporate Frye’s
affidavit by reference, (3) best evidence rule objections pertaining to Frye’s
statements about Cantu’s purchases, and (4) hearsay statements in Frye’s
affidavit. Cantu did not secure a ruling on these objections prior to the
rendition of summary judgment. Therefore, she did not preserve error as to
any objections to the form of the summary-judgment evidence. See TEX. R.
APP. P. 33.1(a)(1); Vice v. Kasprzak, 318 S.W.3d 1, 11 (Tex. App.—
Houston [1st Dist.] 2009, pet. denied).
23
Accordingly, we conclude that the trial court correctly granted summary
judgment as to Cantu’s conversion and theft claims.
B. Statutory and common-law fraud claims
Cantu pleaded causes of action for common-law and statutory fraud. The
elements of fraud are: (1) that a material representation was made; (2) the
representation was false; (3) when the representation was made, the speaker knew
it was false or made it recklessly without any knowledge of the truth and as a
positive assertion; (4) the speaker made the representation with the intent that the
other party should act upon it; (5) the party acted in reliance on the representation;
and (6) the party thereby suffered injury. Italian Cowboy Partners, Ltd. v.
Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011). The Texas Business
and Commerce Code establishes a cause of action for fraud in a transaction
involving stock in a corporation or joint-stock company, the elements of which are:
(1) a false representation of a past or existing material fact, which is (2) made to a
person for the purpose of inducing that person to enter into a contract, and
(3) relied on by that person in entering into that contract. TEX. BUS. & COM. CODE
ANN. § 27.01(a) (West 2012).
On appeal, Cantu argues that the trial court erred by granting summary
judgment on no-evidence grounds, but she does not specifically refer to the
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appellees’ December 2011 motion for summary judgment, which argued in
connection with these claims that there was no evidence:
• “that any of the Defendants made a representation to Cantu that
was false”;
• “that Cantu relied upon statements made by Ms. Frye,
Mr. Benavidez, or the law firm of Frye and Associates”; or
• “that Cantu suffered an[y] damages as a result of anything that
she was allegedly told.”
Cantu’s summary-judgment evidence included an affidavit in which she
averred that Frye made representations upon which she relied in connection with
her purchase of an ownership interest in the law firm. Specifically, she stated:
[P]rior to purchasing my ownership interest from Jerry Simoneaux,
Frye told me she had exclusive rights to purchase all of Simoneaux’s
interest, but that she especially wanted my skills and my participation
in the company because I was a productive and conscientious lawyer.
She told me that my ownership interest entitled me to the full benefits
of the company’s resources, which included high standards of
research materials and education and the full complement of
administrative staff. I relied on Frye’s representations.
She also averred that she did not owe the firm $33,239.52 in outstanding fees, but
that she and the firm together had $33,239.52 in accounts receivables. She stated
that the office manager refused to collect those fees with the approval and guidance
of Frye and Benavidez, that she informed Frye of the office manager’s lack of
support and insubordination, and that despite her earlier promises, Frye refused to
provide Cantu with support for her collection efforts. In addition, Cantu averred
25
that she had contributed $39,992.41 to the firm during the time that she was a
member.
The summary-judgment evidence suggests that Frye did not follow through
on the representations that she made and upon which Cantu contends that she
relied when purchasing Simoneaux’s interest in the firm. But the summary-
judgment evidence does not show that the statements were false at the time that
they were made. In response to appellees’ motions for summary judgment, which
included specific no-evidence allegations pertaining to the elements of her fraud
claims, Cantu brought forth no evidence that Frye or the other appellees made any
promises without the intent to perform. Moreover, the Company Agreement
included a merger clause which stated that it “includes the entire agreement of the
Members and their Affiliates relating to the Company and supersedes all prior
contracts or agreements with respect to the Company, whether oral or written.” In
light of this provision, the oral representations referenced by Cantu made before
her purchase of Simoneaux’s partnership interest had no legal effect,4 and therefore
4
One effect of a merger clause in this circumstance is to invoke the
substantive doctrine of the parol evidence rule, such that all prior
negotiations and agreements with regard to the same subject matter are
excluded from consideration, whether they were oral or written. See, e.g.,
Edascio, L.L.C. v. NextiraOne L.L.C., 264 S.W.3d 786, 796 (Tex. App.—
Houston [1st Dist.] 2008, pet. denied); Ledig v. Duke Energy Corp., 193
S.W.3d 167, 178 (Tex. App.—Houston [1st Dist.] 2006, no pet.); Baroid
Equip., Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App.—Houston
[1st Dist.] 2005, pet. denied); see also Restatement (Second) of Contracts
26
her affidavit constituted no evidence of an actionable misrepresentation.
Accordingly, we hold that the trial court correctly granted summary judgment as to
these claims. See TEX. R. CIV. P. 166a(i); Mack Trucks, 206 S.W.3d at 581–82; see
also Clear Creek Basin Auth., 589 S.W.2d at 678 n.5 (summary judgment is tool to
eliminate patently unmeritorious claims); cf. Aquaplex, Inc. v. Rancho La Valencia,
Inc., 297 S.W.3d 768, 775 (Tex. 2009) (evidence showing only breach of contract
does not demonstrate intent not to perform at time promise made or support claim
for fraud); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 305 (Tex. 2006)
(same). We overrule Cantu’s issues as to her fraud causes of action.
C. Conspiracy, aiding and abetting claims
Finally, as to Cantu’s conspiracy claims, the appellees alleged that there was
“no evidence of any underlying tort to which the charge of ‘aiding and abetting’
would apply.” They argued that both conspiracy and aiding and abetting are
derivative claims and “there is no evidence of any underlying wrongful action to
which it might be said that the individual defendants or the entity defendant could
be found responsible.” Finally they argued that it was “unclear how shareholders
could ever fit under the umbrellas of co-conspirators with the company that they
§ 215 (1981). “The rule is particularly applicable when the written contract
contains a recital that it contains the entire agreement between the parties or
a similarly-worded merger provision.” Baroid Equip., 184 S.W.3d at 13.
27
own,” but in any event, there was “no evidence of any conspiracy, and no evidence
of any damages caused by the alleged conspiracy.”
Cantu’s conspiracy claim related only to her complaint about being expelled
from the firm, and did not relate to her other complaint about being fraudulently
induced to buy an ownership interest in the firm. Her live pleading at the time that
the trial court ruled on the motion for summary judgment alleged:
Conspiracy and Participating, Assisting or Encouraging
Theft and Fraud
39. The conduct described in ¶¶7 to through 21, inclusive, as if
fully set forth herein, which clearly establish that the Defendants
participated with and assisted or encouraged each other to deprive
Cantu of her ownership interest in the Firm by fraud, by violating the
Theft Liability Act and converting her ownership interest . . . .
Moreover, the Defendants are jointly and severally liable for all of
Cantu’s damages because they conspired to divest her of her
ownership interest in the Firm. They had a meeting of the minds on
the object of the course of action against Cantu; they each committed
one or more unlawful, overt act against Cantu; and Cantu has suffered
injury as a proximate result.
40. Defendants Frye and the Firm devised and set the scheme to
defraud and divest Cantu of her ownership into motion. Defendant
Benavidez had sufficient information to know that the conduct of Frye
and the Firm constituted a tort against Cantu. Benavidez intended to,
and did assist Frye and the Firm, in committing the tort against Cantu.
Benavidez intended to, and did assist Frye and the Firm, in
committing the tort against Cantu. Benavidez gave Frye and the Firm
assistance and/or encouragement and the assistance and/or
encouragement was a substantial factor in causing the tort.
To prove civil conspiracy, a plaintiff must show that the defendant
participated in an underlying tort for which he seeks to hold at least one named
28
defendant liable. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). We have
already explained that the appellees have proven as a matter of law that the
expulsion was properly done and Cantu’s summary-judgment evidence does not
refute that holding. Her conspiracy cause of action is based entirely on the actions
taken in connection with her expulsion from the firm. There are no references to
her fraud allegations that the appellees’ misrepresentations induced her to purchase
her 30% interest in the firm. Accordingly, we hold that the trial court correctly
granted summary judgment in the appellees’ favor on this cause of action.
II. Cantu’s no-evidence motion for summary judgment
In her third issue, Cantu argues that the court erred in not granting her no-
evidence motion for summary judgment as to the appellees’ counterclaims. There
is no order in the record granting or denying Cantu’s no-evidence motion for
summary judgment. It is axiomatic that to preserve error for appeal, a party must
obtain a ruling from the trial court. See TEX. R. APP. P. 33.1(a); Ford Motor Co. v.
Ledesma, 242 S.W.3d 32, 43 (Tex. 2007) (“Preservation of error generally depends
on ‘whether the party made the trial court aware of the complaint, timely and
plainly, and obtained a ruling.’”) (quoting State Dep’t of Highways & Pub. Transp.
v. Payne, 838 S.W.2d 235, 241 (Tex. 1992)). Because Cantu did not obtain a ruling
from the trial court on her motion for summary judgment, this issue is waived. We
overrule Cantu’s third issue.
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Conclusion
We affirm the judgment of the trial court.
Michael Massengale
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
30