Matthew Boswell v. Pappy's Pet Lodge Group, LLC, Pappy's Franchising, LLC, and William Kinder ( 2024 )

Affirmed in part; Reversed and Remanded in part and Opinion Filed
February 2, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00040-CV
MATTHEW BOSWELL, Appellant
V.
PAPPY’S PET LODGE GROUP, LLC,
PAPPY’S FRANCHISING, LLC, AND WILLIAM KINDER, Appellees
On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-02877-2021
MEMORANDUM OPINION
Before Justices Carlyle, Goldstein, and Breedlove
Opinion by Justice Breedlove
In this suit arising from a written agreement, the trial court granted summary
judgment for appellees Pappy’s Pet Lodge Group, LLC, Pappy’s Franchising, LLC,
and William J. Kinder. In four issues, appellant Matthew Boswell contends the trial
court erred because he raised genuine issues of material fact on his claims for breach
of contract, fraud, fraud by nondisclosure, and promissory estoppel. He also argues
he raised fact issues regarding limitations, waiver, performance of the contract, and
repudiation. We affirm the trial court’s judgment in part and reverse and remand in
part.
BACKGROUND
On September 27, 2011, appellant Matthew “Red” Boswell as “Franchise
Consultant” and appellee William “Bill” Kinder as “Pappy’s Pet Lodge Owner”
signed a contract “for Red to handle Pappy’s franchise opportunity analysis,
construction and optimization.”1 The terms, drafted by Boswell, were as follows:
 Either party can end the relationship at any time
 I [Boswell] report back to Bill every week to go over the past week’s
results and the coming week’s focus
 Paid bi-weekly in advance (or whatever frequency Bill prefers)
 Travel and other standard misc expenses would be reimbursed bi-
weekly at 50 cents per mile . . .
 Compensation:
o $30 per hour up to 20 hours per week. Bill can change this
weekly max at any time. 20 hours x 2 weeks + 30 miles =
$600 x 2 +15 = 1,215.00
o In exchange for this 92% rate reduction off of my standard
hourly rate, I receive .0125 (1.25%) of franchised locations
gross revenue per month
o Once Pappy’s sells 10 or more locations that percentage
would bump to 1.67%
o Once Pappy’s sells 50 it would bump to 2%
1
Boswell refers to the agreement as the “Franchise Consulting Agreement” or FCA; we will do so as
well.
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o If we never launch or never sell at least 6 franchises (for $20k
or more each) then if/when Pappy’s majority ownership
changes hands I would receive reimbursement compensation
for the hours that I have worked simply computed at the
difference between $250/hr (my standard rate) and $30/hr
(the drastically reduced rate for this project) less $100 (my
punishment for not creating a more attractive opportunity).
Each week’s hours approved in advance by Bill. So, $120 per
hour is the “Worst Case Scenario” reimbursement amount.
Example: 200 hrs at $120 = $24,000 at majority ownership
transfer closing table.
 I would be responsible for creating and paying for formalized
agreement which would be delivered to Bill once this project is well
under way.
 Checks made payable to Matt Boswell
 This written agreement is exactly what we verbally agreed to on the
phone one week ago. No details have been left out. I have already
invested 10 hours into this project and will now begin investing up
to 20 more per week into it until told otherwise by Bill in writing
(email is fine).
The parties agree that Pappy’s Pet Lodge Group paid Boswell a total of
$2,962.50 on the FCA between September 2011 and April 2012, and that no further
amounts are due for Boswell’s services during that time period. The parties also
agree that Boswell stopped providing services under the FCA after April 2012,
because Kinder told Boswell that Pappy’s was not going to pursue its plans to
franchise the business. The parties disagree about the content and effect of the
conversation, however. Kinder testified that “we stopped”; “we were going to
extinguish” Boswell’s relationship with Pappy’s “and move on.” Boswell
acknowledged that Kinder told him that Pappy’s was “not going to be franchising
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now.” But Boswell testified he understood this to mean that only the hourly work
would stop: “He had me stop my hourly working. But the agreement was in no way
terminated.”
In 2019, Boswell learned that at least one Pappy’s franchise had been sold two
years earlier. Boswell demanded royalties under the FCA, and filed this suit in 2021
when he did not receive them. In his operative petition, Boswell alleged claims
against Pappy’s Pet Lodge Group, LLC, Pappy’s Franchising, LLC, and Kinder for
breach of the FCA, fraud, fraud by nondisclosure, and promissory estoppel.
The defendants (together, “Pappy’s”) answered and asserted numerous
affirmative defenses. Pappy’s then filed traditional and no-evidence motions for
summary judgment on all of Boswell’s claims. In its no-evidence motion, Pappy’s
alleged:
 For Boswell’s breach of contract claim, there was no evidence that Boswell
performed or tendered performance, no evidence of a breach by Pappy’s,
and no evidence of damages as a result of any breach;
 For Boswell’s fraud claim, there was no duty to disclose the opening of
any franchise or the gross monthly revenues from any franchise; and
 For Boswell’s claim of fraud by nondisclosure, there was no fiduciary or
other relationship between the parties.
In its traditional motion, Pappy’s alleged:
 Pappy’s alleged breach occurred after the FCA’s termination, so there “is
no valid, enforceable contract on which Plaintiff can sue”;
 If the FCA was not terminated, Boswell committed a prior material breach
by failing to provide consulting services after 2012;
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 If the FCA was not terminated, Boswell’s breach of contract claim is
barred by the four-year statute of limitations;
 Pappy’s is entitled to summary judgment on its affirmative defenses of
repudiation/prior material breach and waiver;
 Boswell’s fraud and fraudulent inducement claims are not viable in light
of his breach of contract claim;
 Boswell’s promissory estoppel claim is barred under the express contract
doctrine and by the four-year statute of limitations.
The trial court granted Pappy’s motions in their entirety and rendered
judgment. This appeal followed.
ISSUES AND STANDARDS OF REVIEW
Boswell challenges the trial court’s summary judgment in four issues. In his
first issue, he contends he produced sufficient evidence to raise a fact issue
precluding summary judgment on his breach of contract claim. In his second and
third issues, he contends he produced sufficient evidence to raise fact issues on his
fraud, fraud by nondisclosure, and promissory estoppel claims in response to
appellees’ traditional and no-evidence motions. In his fourth issue, he contends he
raised genuine issues of material fact regarding whether the parties terminated the
FCA, his performance, limitations, and the absence of any repudiation, waiver, or
material breach.
We review an order granting summary judgment de novo. Durham v.
Children’s Med. Ctr. of Dallas, 488 S.W.3d 485, 489 (Tex. App.—Dallas 2016, pet.
denied). When we review a traditional summary judgment in favor of a defendant,
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we determine whether the defendant conclusively disproved an element of the
plaintiff’s claim or conclusively proved every element of an affirmative defense.
Alexander v. Wilmington Sav. Fund Soc’y, 555 S.W.3d 297, 299 (Tex. App.—Dallas
2018, no pet.). We take evidence favorable to the nonmovant as true, and we indulge
every reasonable inference and resolve every doubt in the nonmovant’s favor. Id. A
matter is conclusively established if ordinary minds could not differ as to the
conclusion to be drawn from the evidence. Id. When, as in this case, the summary
judgment does not specify the grounds on which it was granted, we affirm if any
ground advanced in the motion is meritorious. See id.When both no-evidence and traditional summary judgment motions are filed,
we generally address the no-evidence motion first. See Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004). If the challenge to the order granting the no-
evidence summary judgment motion fails, we need not also consider the traditional
motion. See id.A movant is entitled to a no-evidence summary judgment if, “[a]fter adequate
time for discovery . . . there is no evidence of one or more essential elements of a
claim or defense on which an adverse party would have the burden of proof at trial.”
TEX. R. CIV. P. 166a(i). The trial court “must grant” the motion unless the non-
movant produces summary judgment evidence to raise a genuine issue of material
fact on the issues the movant raised. Id. “A genuine issue of material fact exists if
more than a scintilla of evidence establishing the existence of the challenged element
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is produced.” Ford Motor Co., 135 S.W.3d at 600. “More than a scintilla of evidence
exists when the evidence rises to a level that would enable reasonable and fair-
minded people to differ in their conclusions.” King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 751 (Tex. 2003) (internal quotation omitted).
A party moving for traditional summary judgment has the burden of
establishing that no material fact issue exists and the movant is entitled to judgment
as a matter of law. TEX. R. CIV. P. 166a(c). In reviewing the granting of a traditional
summary judgment, we consider all the evidence in the light most favorable to the
non-movant, indulging all reasonable inferences in favor of the non-movant, and
determine whether the movant proved that there were no genuine issues of material
fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt.
Co., 690 S.W.2d 546, 548–49 (Tex.1985).
DISCUSSION
We first address Boswell’s first and fourth issues that challenge the trial
court’s judgment on his contract claims. We then turn to Boswell’s second and third
issues that challenge the trial court’s judgment on his fraud and promissory estoppel
claims.
1. Contract issues
A. No-evidence motion on performance, breach, and damages
“A successful breach of contract claim requires proof of the following
elements: (1) a valid contract; (2) performance or tendered performance by the
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plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by
the plaintiff as a result of that breach.” Petras v. Criswell, 248 S.W.3d 471, 477 (Tex.
App.—Dallas 2008, no pet.). Pappy’s no-evidence motion for summary judgment
challenged (1) whether Boswell performed or tendered performance, (2) whether
Pappy’s breached the FCA, and (3) whether Boswell was damaged by the breach.
We conclude that genuine issues of material fact exist on each of these matters. See
TEX. R. CIV. P. 166a(c).
Regarding Boswell’s performance, the summary judgment evidence reflects
the parties’ disagreement about what services Boswell was required to perform
under the FCA. The FCA states only that Boswell will “handle Pappy’s franchise
opportunity analysis, construction and optimization.” Kinder testified that Boswell
was required to “sell franchises,” while Boswell testified to his understanding that
he, personally, did not have to sell any franchises under the agreement in order to
receive the designated percentages of gross revenue from the franchised locations.
Further, although the FCA required Boswell to create and pay for a “formalized
agreement,” Boswell testified he did not do so because Kinder told him it was not
necessary until “later when it comes time to sell.” The evidence shows that Boswell
did provide some services under the FCA, was paid for them, and stopped his hourly
work at Kinder’s request. We conclude Boswell raised a genuine issue of material
fact regarding his performance. See Petras, 248 S.W.3d at 477.
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Regarding Pappy’s breach, it is undisputed that Pappy’s did not pay
compensation to Boswell when it sold franchises. Pappy’s argues the FCA was
terminated years before any franchises were sold, and the FCA provides that
“[e]ither party can end the relationship at any time.” Pappy’s concludes it owed
nothing more to Boswell under the FCA. Boswell, however, testified that the
“relationship” meant only “[t]he hourly relationship, the consulting hourly.” Boswell
thus argues that “the key term in the FCA, the ‘relationship’ between the Parties is
not defined and thus subject to interpretation.” Boswell also contends that a fact issue
exists “as to whether the FCA was paused, as Boswell claims, or terminated, as
Appellees claim.” The parties offered conflicting testimony on this point, and the
summary judgment record does not include contemporaneous documents to support
either party’s understanding. The FCA did not include any time limit for the parties
to carry out their responsibilities. We conclude Boswell raised a genuine issue of
material fact whether Pappy’s breached the FCA. See Petras, 248 S.W.3d at 477.
Regarding damages, the undisputed evidence shows that after Boswell and
Kinder signed the FCA, Pappy’s received and paid for Boswell’s services at the
discounted rate under the FCA. It is also undisputed that Pappy’s “sold at least two
franchises,” as Boswell alleged in his operative petition, but did not pay any
commission to Boswell. We conclude Boswell raised a genuine issue of material fact
whether he suffered damages from Pappy’s alleged breach of the FCA.
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Because Boswell raised genuine issues of material fact on his claim for breach
of contract, we conclude the trial court erred by granting Pappy’s no-evidence
motion for summary judgment on this claim. We sustain Boswell’s first issue.
B. Limitations, repudiation, and waiver
In its traditional motion, Pappy’s sought summary judgment on its affirmative
defenses of repudiation/prior material breach, waiver, and limitations, and contended
that because the alleged breach occurred after the FCA’s termination, there was no
valid, enforceable contract on which Boswell could sue. These defenses are
premised on Boswell’s inaction between 2012, when he ceased providing services
to Pappy’s, and 2019, when he learned that Pappy’s had sold a franchise. In his
fourth issue, Boswell contends he raised genuine issues of material fact regarding
his performance of his contractual obligations, the FCA’s termination and
limitations, and the absence of any repudiation, waiver, or material breach.
We first conclude that Boswell raised a genuine issue of material fact on
whether his claims are barred by limitations. There is no term or expiration date
stated in the FCA, and the parties offered conflicting evidence about the date on
which limitations began to run.
Pappy’s argues limitations began to run in 2012 when it contends is when the
FCA was terminated. Kinder testified that in 2012, he and Boswell “agreed that we
wouldn’t go forward.” Kinder explained that “we were not even close to being able
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to do franchising at that time,” and “the whole purpose of [Boswell’s] existence in
our world was to sell franchises. That wasn’t happening, and so we stopped.”
Boswell, in contrast, argues that limitations did not begin to run until Pappy’s
failed to pay his monthly commissions after it sold a franchise, which he contends
was in breach of the FCA. Boswell testified that under the FCA, he was not required
to sell franchises. He testified that the FCA has never been terminated; that although
Kinder “had me stop my hourly working,” “the agreement was in no way
terminated.” He testified that his obligation under the FCA to “report back to Bill
every week” was no longer in effect, but the FCA and the obligation to pay him
when Pappy’s sold franchises remained in effect.2 Although Boswell concedes he
did not provide any services under the FCA after 2012, he argues he raised a genuine
issue of material fact on whether limitations bars some or all of his claims. We agree.
At trial, if Boswell carries his burden to prove that the FCA required Pappy’s
to pay him compensation when the franchises were sold—a question not presented
in this appeal—then his suit filed on June 1, 2021, was within four years of at least
some of the monthly payments due. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 16.004(a)(3) (four-year limitations period for actions for debt). “When recovery is
sought on an obligation payable in installments, a separate cause of action accrues
for each missed payment and a separate limitations period runs against each
2
Boswell also argues that in any event, termination of the FCA would not affect his claim for
“reimbursement compensation” for the work he performed.
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installment from the time it becomes due.” Barnes v. LPP Mortg., Ltd. 358 S.W.3d
301, 307 (Tex. App.—Dallas 2011, pet. denied). Accordingly, we conclude that
Boswell raised a genuine issue of material fact on Pappy’s limitations defense.
Turning to Pappy’s contentions that Boswell’s claims are barred by prior
material breach, repudiation, and waiver, Pappy’s argued in its summary judgment
motion that “Boswell did not even contact Kinder, much less perform as a consultant
or sell franchises, for more than seven years.” Pappy’s argued that Boswell did not
sell either of Pappy’s two franchises, did not fulfill his obligation to create and pay
for a formalized agreement, and failed to report to Kinder on a weekly basis as the
FCA required. Pappy’s also contended that “if Boswell ever had the right to claim
the commission component of his compensation after April 2012, Boswell’s conduct
shows the intentional relinquishment of that right” by his failure to contact Kinder
for almost seven years, lack of “effort to keep up with Defendants or even learn if
Defendants had opened any franchise locations,” and failure “to retain any proof of
the hours he had worked for Defendants.” Pappy’s argued that this conduct
demonstrated Boswell’s “actual belief that the Agreement had in fact been mutually
terminated and was no longer in force, or alternatively demonstrating his intentional
relinquishment of any right to claim commissions” or other compensation under the
FCA.
Boswell, however, testified that his inactivity under the FCA was in
compliance with a request from Kinder. In his summary judgment response, Boswell
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argued that he “quickly demanded Kinder abide by the terms of the [FCA] after
learning of its breach, repeatedly ask[ing] Kinder to reconsider and do the right
thing,” and only filed suit “as a last resort.” Boswell also contended that Pappy’s
evidence of his alleged prior breaches of the FCA only raised fact questions that
could not be resolved by summary judgment.
Concluding that Boswell raised genuine issues of material fact on Pappy’s
affirmative defenses to Boswell’s claim for breach of contract, we sustain Boswell’s
fourth issue.
2. Promissory estoppel and fraud claims
Boswell’s second and third issues challenge the trial court’s summary
judgment on his promissory estoppel and fraud claims.
A. Promissory estoppel
For his claim of promissory estoppel, Boswell pleaded that Pappy’s promised
to pay royalties, he relied on that promise, Pappy’s knew or should have known of
his reliance, and he provided over 100 hours of work in reliance on the promise.
Pappy’s sought summary judgment on the ground that the “alleged breach is covered
by an express contract.”
We conclude the trial court did not err by granting summary judgment for
Pappy’s on this claim. See Guar. Bank v. Lone Star Life Ins. Co., 568 S.W.2d 431,
434 (Tex. App.—Dallas 1978, writ ref’d n.r.e.) (“If the promise in question is a part
of a valid contract, the promisee cannot disregard the contract and sue for reliance
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damage under the doctrine of promissory estoppel.”). Further, Boswell’s promissory
estoppel claim is barred by the economic loss rule. “The economic loss rule generally
precludes recovery in tort for economic losses resulting from a party’s failure to
perform under a contract when the harm consists only of the economic loss of a
contractual expectancy.” Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 445
S.W.3d 716, 718 (Tex. 2014) (per curiam). As damages for his promissory estoppel
claim, Boswell pleaded only for “the accrual of royalties owed to Plaintiff.”
Boswell’s claim to these royalties arises only from the FCA. Accordingly, we
overrule this portion of Boswell’s second and third issues.
B. Fraud and fraud by non-disclosure
Further, we affirm the summary judgment on Boswell’s common law fraud
and fraud by non-disclosure claims because the damages Boswell seeks are amounts
he claims are due under the FTA. See Transcontinental Realty Investors, Inc. v. John
T. Lupton Trust, 286 S.W.3d 635, 647 (Tex. App.—Dallas 2009, no pet.) (where
plaintiff sought benefit-of-the-bargain damages, its fraud claim failed as a matter of
law). In his operative petition, Boswell alleged that “Defendants promised Plaintiff
that they would pay Plaintiff a royalty amount based on the monthly gross revenue
for each franchised location,” and described his injury as “Defendants’ refusal to pay
Plaintiff royalties accruing [or] otherwise owing to Plaintiff.” Accordingly,
Boswell’s fraud and fraud by non-disclosure claims fail. See id.–14–
C. Fraudulent inducement
Boswell’s fraudulent inducement claim is different. Pappy’s moved for
summary judgment only on the ground that the fraudulent inducement claim is “not
viable in light of Plaintiff’s breach of contract claim.” However, “the legal duty not
to fraudulently procure a contract is separate and independent from the duties
established by the contract itself.” Formosa Plastics Corp. USA v. Presidio Eng’rs
& Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1997). “A party states a tort claim
when the duty allegedly breached is independent of the contractual undertaking and
the harm suffered is not merely the economic loss of a contractual benefit.”
Chapman Custom Homes, Inc., 445 S.W.3d at 718.
In his summary judgment response, Boswell cited Kinder’s testimony that
Pappy’s never intended to perform under the FCA. Kinder testified that the FCA was
“onerous” and “we would never accept . . . in a legal document” the paragraph
awarding Boswell 1.25 percent of franchised locations’ gross revenue per month.
Kinder explained that “[o]ur intent was to get a fully negotiated contract of
employment” with Boswell as a director of franchising on a commission basis, but
“[w]e never got that far.” Boswell argued that Pappy’s “intention all along was to
renegotiate the [FCA] and deprive [Boswell] of the benefit of this bargain.” We
conclude that Pappy’s did not establish its right to judgment as a matter of law on
Boswell’s fraudulent inducement claim. See id.; see also Fuller v. Le Brun, 616
S.W.3d 31, 44–45 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (fraudulent
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inducement claim was not barred by the economic loss rule where the claim arose
from misrepresentations made before the parties entered into their contract).
D. Conclusion on fraud and estoppel issues
We sustain the portion of Boswell’s second and third issues that challenge the
trial court’s summary judgment on his fraudulent inducement claim. In all other
respects, we overrule Boswell’s second and third issues.
CONCLUSION
We affirm the trial court’s judgment in part, reverse in part, and remand the
case to the trial court for resolution of Boswell’s claims for breach of contract and
fraud in the inducement.
230040f.p05 /Maricela Breedlove/
MARICELA BREEDLOVE
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MATTHEW BOSWELL, Appellant On Appeal from the 296th Judicial
District Court, Collin County, Texas
No. 05-23-00040-CV V. Trial Court Cause No. 296-02877-
2021.
PAPPY’S PET LODGE GROUP, Opinion delivered by Justice
LLC, PAPPY’S FRANCHISING, Breedlove. Justices Carlyle and
LLC, AND WILLIAM KINDER, Goldstein participating.
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED in part and REVERSED in part. We REVERSE that portion
of the trial court’s judgment granting summary judgment on appellant Matthew
Boswell’s claims for breach of contract and fraud in the inducement. In all other
respects, the trial court’s judgment is AFFIRMED. We REMAND this cause to the
trial court for further proceedings consistent with the opinion.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 2nd day of February, 2024.
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