Dr. James Landero, D.O., D/B/A Landero Enterprises v. Future Healthcare Systems, Inc. and Christopher Helms ( 2023 )

Affirmed and Opinion Filed July 18, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00881-CV
DR. JAMES LANDERO, D.O., D/B/A LANDERO ENTERPRISES, Appellant
V.
FUTURE HEALTHCARE SYSTEMS, INC. AND CHRISTOPHER HELMS,
Appellee
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-12212
MEMORANDUM OPINION
Before Justices Reichek and Goldstein1
Opinion by Justice Goldstein
Appellant Dr. James Landero appeals the trial court’s summary judgment on
his claims against appellees Future Healthcare Systems, Inc. (Future Health) and its
president Christopher Helms. We affirm in this memorandum opinion. See TEX. R.
APP. P. 47.2(a).
1
The Honorable David J. Schenck, Justice, participated in the oral argument and submission of this
case but not the issuance of the opinion, which occurred after the expiration of his term on December 31,
2022. See TEX. R. APP. P. 41.1(b) (“After argument, if for any reason a member of the panel cannot
participate in deciding a case, the case may be decided by the two remaining justices.”).
BACKGROUND
In 2017, appellees provided marketing materials to Dr. Landero describing
their “DOL program,” a consulting program under which appellees offered to assist
physicians in becoming credentialed with the U.S. Department of Labor to provide
medical services to federal employees. On December 30, 2017, Dr. Landero signed
a “Department of Labor Consulting Agreement” (Agreement) with Future Health.
Under the Agreement, Dr. Landero was required to pay Future Health $120,000 in
four monthly installments of $30,000 each. In return, Future Health would provide
Dr. Landero a complete DOL training manual, all marketing materials, introduce Dr.
Landero to DOL billing and compliance experts, provide certain training to Dr.
Landero’s staff and various other services. Dr. Landero made the first three
payments under the Agreement but did not make the fourth. Rather, on May 1, 2019,
Dr. Landero, through counsel, sent a letter to Helms claiming that Future Health had
failed to provide the promised services. The letter demanded the return of the
$90,000 Dr. Landero had paid to that point.
On August 19, 2019, Dr. Landero initiated the instant lawsuit, asserting claims
for fraud, fraudulent inducement, breach of contract, negligent misrepresentation,
gross negligent misrepresentation, and violations of the Texas Deceptive Trade
Practices Act (DTPA). Dr. Landero sought his actual damages in the amount of
$90,000, punitive damages, and attorney’s fees. Dr. Landero also asserted that
Helms was an active participant and conspirator in Future Health’s tortious conduct
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and sought to hold him personally liable under officer-liability and vicarious-liability
theories.
On June 3, 2021, appellees filed a motion for no-evidence summary judgment.
In the motion, appellees challenged every element of Dr. Landero’s causes of action,
the elements of Dr. Landero’s claim for punitive damages, and each element of Dr.
Landero’s vicarious liability theories. Dr. Landero responded,2 and the trial court
held a hearing on the motion on July 23.3 At the hearing, appellees argued that Dr.
Landero’s response was inadequate because it failed to “specifically point the Court
or the Defendants to the evidence which supports each of the challenged elements,
which it absolutely has to do.” In response, Dr. Landero contended that appellees’
interpretation of the summary judgment standard was incorrect and that he was “not
required to say this particular evidence relates solely to this particular element.” The
trial court disagreed, stating: “That is not the requirement . . . . I see your summary,
2
Dr. Landero’s initial response and exhibits exceeded the page limit for filings under the January 5,
2021 General Order of the Dallas County District Courts to which the trial court was a signatory. Thus, On
July 14, 2021, Dr. Landero filed a motion for leave to exceed the page limits. In the motion for leave, Dr.
Landero explained that the original response was in thirteen-point font and, once reduced to twelve-point
font, the response complies with the page limit. Dr. Landero requested that the court accept the original
response or alternatively accept for filing the new response, attached to the motion for leave, which was in
twelve-point font. Regarding the exhibits, Dr. Landero requested that the trial court accept the original
exhibits for filing or alternatively grant him leave to cut certain pages out of the exhibit. The trial court
granted the motion for leave without indicating which of the requested relief it was granting. For the
purposes of this appeal, we will presume that the trial court accepted the original response and exhibits.
3
The transcript of the summary judgment hearing was submitted as part of the record before us despite
judicial precedent that recording of summary judgment hearings by court reporters is neither necessary nor
appropriate to purposes of such summary judgment hearings. See City of Houston v Clear Creek Basin
Auth., 589 SW 2d 671, 677 (Tex. 1979). We recite the trial transcript solely to determine whether the issue
of identified facts supporting the elements of each cause of action was actually presented to and considered
by the trial court. Id.–3–
I see your facts. There’s compilation and citations to that, but you don’t -- you
haven’t told the court how those facts specifically support each cause of action.”4
Ultimately, the trial court granted the motion without stating its basis. This appeal
followed.
DISCUSSION
In seven issues, Dr. Landero asserts that there are genuine issues of material
fact on each of his causes of action, his claim for punitive damages, and his theories
of vicarious liability. Appellees argue that the motion was properly denied both on
the merits and due to the deficiencies in Dr. Landero’s response. We need not
address the merits of Dr. Landero’s issues because we agree with appellees that Dr.
Landero’s response was deficient. See TEX. R. APP. P. 47.1
We review summary judgments de novo. Freyer v. Lyft, Inc., 639 S.W.3d 772,
779 (Tex. App.—Dallas 2021, no pet.). Under rule 166a(i), a party may move for
no-evidence summary judgment on the ground that there is no evidence of one or
more essential elements of a claim or no evidence of a defense on which an adverse
party has the burden of proof at trial. Id. (citing TEX. R. CIV. P. 166a(i)). The trial
4
The trial court also asked Dr. Landero’s counsel whether, given the deficiency in the response, “is the
remedy for that to grant a summary judgment, or is there some kind of motion that you can file for you to
essentially do your response over to address that deficiency?” Counsel responded that the trial court has
discretion to require another response but maintained that there was no deficiency. When the trial court
orally granted the motion for summary judgment, it explained to Dr. Landero’s counsel that “if you file any
kind of motion for reconsideration or anything like that, I would encourage you to specifically match the
facts with the law.” Dr. Landero did file a motion for reconsideration, which the trial court denied by written
order signed September 29, 2021. On appeal, Dr. Landero does not challenge the September 29 order.
Therefore, the motion for reconsideration is not before us.
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court may grant a no-evidence motion for summary judgment unless the nonmovant
brings forth more than a scintilla of evidence to raise a genuine issue of material fact
on the elements challenged by the motion. Id. at 779–80 (citing Ford Motor Co. v.
Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)).
In determining whether a summary judgment respondent successfully carried
its burden, neither this court nor the trial court is required to wade through a
voluminous record to marshal respondent’s proof. Arredondo v. Rodriguez, 198
S.W.3d 236, 238 (Tex. App.—San Antonio 2006, no pet.). Thus, when presenting
summary-judgment proof, a party must specifically identify the supporting proof on
file that it seeks to have considered by the trial court. Id. Therefore, “in responding
to a no-evidence motion for summary judgment, 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 the above evidence conclusively establishes each
element of the plaintiff’s claims.” De La Cruz v. Kailer, 526 S.W.3d 588, 595 (Tex.
App.—Dallas 2017, pet. denied). In other words, the nonmovant is “obligated to
point out with specificity where in his filings there was evidence on each of the
challenged elements of his claims.” Id.Here, Dr. Landero failed to meet his burden. Dr. Landero’s response included
sections entitled “Summary” and “Factual Background.” In these sections, Dr.
Landero set forth the facts of the case with specific citations to the exhibits attached
to the response. After these sections are sections containing Dr. Landero’s
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arguments. However, none of the arguments include citations to any documents in
the exhibits. These sections merely provide the applicable law and close with a
conclusory statements that the elements were supported with evidence. For example,
Section V of the response is titled “Defendants Committed Fraud and Fraudulently
Induced Dr. Landero into Entering into the Contract.” An introductory paragraph in
Section V states that “Dr. Landero incorporates the above sections and in particular
the factual background as if set forth herein.” Subsections A, B, and C of Section V
generally state the applicable law for fraud, fraud by nondisclosure, and fraudulent
inducement respectively. None of these subsections apply the law to the facts of the
case. Subsection D then states, in its entirety:
As shown above: (1) Defendants made misrepresentations to Plaintiff;
(2) the misrepresentations and omissions were material and were
intended to induce Dr. Landero to purchase the goods and services and
to make payments to Defendant FHS; and (3), were relied upon by
Plaintiff in making the payments totaling $90,000.00 to Defendant FHS.
This pattern continues in each of the following sections of the response.
We conclude Dr. Landero failed to meet his burden in responding to
appellees’ no-evidence motion. The response does precisely what we have said is
insufficient: it sets forth the evidence in one section and, “in a section totally separate
from the recitation of the evidence, offer[s] general conclusions” that the evidence
creates a genuine issue of material fact on each challenged element. See De La Cruz,
526 S.W.3d at 595; Arredondo, 198 S.W.3d at 238. It follows that a nonmovant’s
mere incorporation of previously outlined facts into an argument section is also
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insufficient to meet the burden. See Arredondo, 198 S.W.3d at 238. Therefore, the
issue is not where the nonmovant inserts the facts (whether by incorporation or
repetition), but whether and to what extent the nonmovant applies the law to the facts
in order to overcome the movant’s challenge to a given element. We conclude that
Dr. Landero’s incorporation of the facts section of his response into the arguments
section was insufficient to “specifically identify the supporting proof that [he sought]
to have considered by the trial court.” See id. The trial court was not required to sift
through Dr. Landero’s exhibits to determine what evidence supported which
challenged element. See id.CONCLUSION
We overrule Dr. Landero’s issues and affirm the trial court’s judgment.
/Bonnie Lee Goldstein/
BONNIE LEE GOLDSTEIN
JUSTICE
210881F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DR. JAMES LANDERO, D.O., On Appeal from the 192nd Judicial
D/B/A LANDERO ENTERPRISES, District Court, Dallas County, Texas
Appellant Trial Court Cause No. DC-19-12212.
Opinion delivered by Justice
No. 05-21-00881-CV V. Goldstein. Justices Reichek
participating.
FUTURE HEALTHCARE
SYSTEMS, INC. AND
CHRISTOPHER HELMS, Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee FUTURE HEALTHCARE SYSTEMS, INC.
AND CHRISTOPHER HELMS recover their costs of this appeal from appellant
DR. JAMES LANDERO, D.O., D/B/A LANDERO ENTERPRISES.
Judgment entered this 18th day of July 2023.
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