William T. Dickson v. American Electric Power, Inc. and Public Service Company of Oklahoma ( 2015 )

AFFIRM; and Opinion Filed December 1, 2015.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-14-00690-CV
WILLIAM T. DICKSON, Appellant
V.
AMERICAN ELECTRIC POWER, INC. AND
PUBLIC SERVICE COMPANY OF OKLAHOMA, Appellees
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC 14-04316
MEMORANDUM OPINION
Before Justices Lang-Miers, Brown, and Schenck
Opinion by Justice Lang-Miers
Appellant William T. Dickson, an attorney, sued appellees American Electric Power, Inc.
(AEP) and Public Service Company of Oklahoma (PSO), alleging that appellees interfered with a
contingent fee contract between Dickson and his client. Appellees moved for summary
judgment and the trial court granted their motion and dismissed Dickson’s claims. Dickson
appeals from that order. We affirm.
BACKGROUND
Dickson represented B. Willis, C.P.A. in numerous state and federal lawsuits in
Oklahoma against PSO and others that arose from PSO’s condemnation of an easement on
Willis’s property for the construction of a railroad track. The lengthy factual and procedural
background of the Oklahoma cases is set forth in our opinion in Dickson v. BNSF Railway Co.,
05-14-01575-CV, 2015 WL 6777876 (Tex. App.—Dallas November 6, 2015, no pet. h.) (mem.
op.), as well as in two Tenth Circuit opinions, B. Willis, C.P.A., Inc. v. Public Service Co. of
Oklahoma, 511 Fed. Appx. 753 (10th Cir. 2013), and B. Willis, C.P.A., Inc. v. BNSF Railway
Corp., 531 F.3d 1282 (10th Cir. 2008). We do not recount that history in detail here because it is
not germane to our disposition of this appeal. In a nutshell, Willis fought the condemnation on
multiple fronts and lost. After more than two decades of litigation, summary judgment was
granted against Willis, and Dickson was ordered to pay sanctions of $ 152,281.57 in attorney’s
fees and $1,324.84 in expenses pursuant to 28 U.S.C. § 1927 for what the Tenth Circuit
described as “objectively unreasonable conduct.”
In the instant case, Dickson sued PSO and its parent company, AEP, among others,
alleging that they interfered with his contingent fee contract with Willis. More specifically,
Dickson alleged that appellees went around Dickson and convinced Willis to dismiss his appeal
of the summary judgment ruling in exchange for appellees’ agreement to dismiss a pending
motion for sanctions against Willis. Dickson asserted claims against appellees seeking actual
and exemplary damages for four claims under Oklahoma law: (1) “Breach of Legal Duty under
23 O.S. § 3,” (2) tortious interference with contract, (3) tortious interference with prospective
economic advantage, and (4) abuse of process. Appellees moved for summary judgment on
multiple grounds and the trial court granted their motion without stating the basis for its ruling.
ISSUES ON APPEAL
On appeal Dickson argues that the trial court erred when it granted summary judgment in
favor of appellees. Dickson phrases his issues on appeal as follows:
1. Summary Judgment was improper.
2. Dickson’s claims against AEP/PSO were not precluded by the [sic] either
the rulings of the U.S. District Court or the Oklahoma state condemnation
action.
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3. Dickson has a claim against PSO for circumventing Dickson and
interfering with his contract.
APPLICABLE LAW AND STANDARD OF REVIEW
We review a trial court’s decision to grant summary judgment de novo. Natividad v.
Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). In reviewing a trial court’s ruling on a motion
for summary judgment, we accept as true all evidence favoring the nonmovant, indulging every
reasonable inference and resolving all doubts in the nonmovant’s favor. Nixon v. Mr. Prop.
Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985). A defendant seeking summary judgment must
negate as a matter of law at least one element of each of the plaintiff’s theories of recovery or
plead and prove as a matter of law each element of an affirmative defense. See Centeq Realty,
Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). If the defendant establishes a right to
summary judgment, the burden shifts to the plaintiff to present evidence that raises a genuine
issue of material fact precluding summary judgment. See id. A conclusory argument raised in
response to a motion for summary judgment is not sufficient to raise a genuine issue of material
fact. See, e.g., Pace v. Whatley, No. 04-13-00136-CV, 2014 WL 954755, at *3 (Tex. App.—San
Antonio Mar. 12, 2014, no pet.) (mem. op.).
When a motion for summary judgment asserts several independent grounds and the trial
court’s order granting summary judgment does not specify the ground or grounds on which it
was based, a party who appeals that order must negate all possible grounds upon which the order
could have been based by either asserting a separate issue challenging each possible ground, or
asserting a general issue that the trial court erred in granting summary judgment and within that
issue providing argument negating all possible grounds upon which summary judgment could
have been granted. See Borsella v. Whitis, No. 05-06-00617-CV, 2007 WL 2325813, at *2 (Tex.
App.—Dallas Aug. 15, 2007, no pet.) (mem. op.) (citing Malooly Bros., Inc. v. Napier, 461
S.W.2d 119, 121 (Tex. 1970)). If an appellant does not challenge each possible ground on which
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summary judgment could have been granted, we must uphold the summary judgment on the
unchallenged ground. See Adams v. First Nat’l Bank of Bells/Savoy, 154 S.W.3d 859, 875 (Tex.
App.–Dallas 2005, no pet.) (“[A] reviewing court will affirm the summary judgment as to a
particular claim if an appellant does not present argument challenging all grounds on which the
summary judgment could have been granted.”).
ANALYSIS
Although Dickson phrases his first issue as a general issue challenging the entire
summary judgment ruling on all four of his claims, in his brief he does not address three of his
claims-“Breach of Legal Duty under 23 O.S. § 3,” tortious interference with prospective
economic advantage, or abuse of process. As a result, Dickson has waived any error as to those
claims and we do not address them. See Ontiveros v. Flores, 218 S.W.3d 70, 71 (Tex. 2007) (per
curiam) (if trial court grants summary judgment on multiple claims, and appellant does not assert
error on appeal as to some claims, appellant waives error as to those claims).
Dickson has also waived any error as to the summary judgment in favor of AEP. In
appellees’ motion for summary judgment, AEP moved for traditional summary judgment on the
ground that it is not liable in the capacity in which it has been sued. More specifically, AEP
argued, and submitted summary judgment evidence to demonstrate, that it is a holding company
that “has no employees and therefore could not engage in any of the conduct alleged by
[Dickson].” Dickson does not challenge this ground for summary judgment on appeal. As a
result, we must affirm the summary judgment as to AEP on this unchallenged ground. See
Holloway v. Starnes, 840 S.W.2d 14, 23 (Tex. App.—Dallas 1992, writ denied) (if summary
judgment may have been rendered, properly or improperly, on ground not challenged on appeal,
judgment must be affirmed); Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898
(Tex. App.—Houston [1st Dist.] 2002, no pet.) (when party moves for summary judgment on
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several grounds, appealing party must assign error to each ground, or judgment will be affirmed
on ground about which no complaint is made).
What remains for us to analyze is Dickson’s claim against PSO for tortious interference
with contract. “A party alleging tortious interference must prove four elements to sustain its
claim: (1) that a contract subject to interference exists; (2) that the alleged act of interference was
willful and intentional; (3) that the willful and intentional act proximately caused damage; and
(4) that actual damage or loss occurred.” ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426,
430 (Tex. 1997).
With respect to Dickson’s claim for tortious interference with contract, PSO challenged,
among other things, the element of damages. More specifically, in its motion for summary
judgment, PSO argued that Dickson “has suffered no damages caused by any alleged conduct of
[PSO], including settlement of PSO’s claim for attorneys fees against Willis” because the
underlying case at issue was dismissed on the merits by the trial court.
In response to PSO’s argument, Dickson argued that he was damaged when PSO
wrongfully convinced Willis to abandon a “slam dunk” appeal of the underlying case, and that
Dickson’s damages “are equal to the fee he would have recovered” if Willis had not dismissed
the appeal. On appeal, Dickson makes a similar argument:
The amount of Dickson’s damages that resulted from the tortious acts of [PSO]
depends on the resolution of “the case within the case,” i.e., what would have
been the outcome of the appeal had not [PSO] tortiously interfered with
Dickson’s contract making it impossible to earn his fee.
(Emphasis original.) He then argues that summary judgment was “woefully inappropriate”
because what would have been the outcome of the appeal “remains to be determined.”
Dickson’s summary judgment response below that the appeal was a “slam dunk” is
conclusory because it does not provide the underlying facts to support it. See, e.g., Eberstein v.
Hunter, 260 S.W.3d 626, 630 (Tex. App.—Dallas 2008, no pet.) (“A conclusory statement is one
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that does not provide the underlying facts to support the conclusion.”). As the Texas Supreme
Court has explained, conclusory statements do not create a question of fact to defeat summary
judgment. See, e.g., Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013). As a result, Dickson
did not meet his burden to raise a genuine issue of material fact as to his claim against PSO for
tortious interference.
CONCLUSION
We resolve Dickson’s issues against him and affirm the trial court’s judgment.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
140690F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
WILLIAM T. DICKSON, Appellant On Appeal from the 193rd Judicial District
Court, Dallas County, Texas
No. 05-14-00690-CV V. Trial Court Cause No. DC 14-04316.
Opinion delivered by Justice Lang-Miers.
AMERICAN ELECTRIC POWER, INC. Justices Brown and Schenck participating.
AND PUBLIC SERVICE COMPANY OF
OKLAHOMA, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee American Electric Power, Inc. and Public Service
Company of Oklahoma recover their costs of this appeal from appellant William T. Dickson.
Judgment entered this 1st day of December, 2015.
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