Joseph Shunta v. Gordon Westergren, D.T. Properties, Inc., Doyle Toups and Grubb & Ellis

Opinion issued June 10, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-08-00715-CV

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JOSEPH SHUNTA, Appellant

V.

GORDON WESTERGREN, D.T. PROPERTIES, INC., DOYLE TOUPS, AND GRUBB & ELLIS, Appellees

On Appeal from the 133rd District

Harris County, Texas

Trial Court Case No. 2006-43603

MEMORANDUM OPINION

          Appellant, Joseph Shunta, appeals from a summary judgment in favor of appellees, Gordon Westergren, D.T. Properties, Inc., Doyle Toups, and Grubb & Ellis.  In nine issues, Shunta asserts the trial court erred by excluding certain evidence and by awarding summary judgment because Shunta has standing to sue; Shunta’s contract is valid; appellees’ affirmative defenses of absolute privilege, legal justification, release, res judicata, and statute of limitations are invalid; and Shunta presented evidence of civil conspiracy and causation.  We conclude the error, if any, in excluding evidence was harmless.  We also conclude Shunta has standing to sue.  Furthermore, the trial court properly rendered summary judgment on the tortious interference with contract claim based on the statute of limitations and on the civil conspiracy claim based on no evidence of a conspiracy.  We affirm.

Background

          On May 5, 2004, Westergren entered into an earnest money contract with La Porte 81, 82, and 115, Ltd. (“La Porte”) for the purchase of 190 acres.  The closing under this contract was to occur by June 19, 2004.  The next day, May 6, 2004, another potential purchaser, Fogarty, entered into an earnest money contract with La Porte.  The Fogarty contract covered 175 acres of the 190 acres covered in the Westergren contract.  Shunta was listed as a broker in the Fogarty contract.  After entering into the May 2004 contract, Fogarty learned of the Westergren contract.  Fogarty, therefore, did not go forward under the Fogarty contract but waited to see if Westergren would close under the Westergren contract.

          Westergren did not close on June 19, 2004. Westergren asked Fogarty for “a few days” to close the deal before Fogarty purchased the property.  Fogarty agreed.  However, Westergren did not attempt to close on the property, but filed suit and a notice of lis pendens[1] on July 9, 2004.  On or about July 19, 2004, La Porte and Fogarty entered into another earnest money contract for the property.  Shunta was listed as the broker, entitled to receive a six-percent commission. Fogarty was served with Westergren’s suit on July 29, 2004.  Fogarty and La Porte asserted various cross-claims against one another in the Westergren suit.

          On October 6, 2004, while Westergren’s suit was pending, D.T. Properties, Inc., a company controlled by Toups, entered into a contract with La Porte for the property at issue in the Westergren suit.  The contract contained a provision stating,

This contract is contingent upon [D.T. Properties] obtaining a dismissal with prejudice of Gordon Westergren’s lawsuit against La Porte 81, Ltd.; Stuart Haynsworth individually and as General Partner of La Porte 81, Ltd.; and Joe Fogarty and his property interests.  Said dismissal being in writing and filed with the court clerk.

Westergren’s suit settled at mediation on January 17, 2006.  The property was sold to a development company not a party to the suit.  As part of the settlement, Westergren, La Porte, Haynsworth, Fogarty, Toups, and D.T. Properties, Inc. each executed releases for all claims “arising from, [or] related to, the events and transactions which are the subject matter of this case.”

          On July 14, 2006, Shunta sued Westergren, D.T. Properties, Inc., Doyle Toups, and Grubb & Ellis.  Shunta asserted claims for tortious interference with contract and civil conspiracy.  Westergren filed a motion for summary judgment.  Later Toups and D.T. Properties filed a motion for summary judgment, followed by Grubb & Ellis filing its own motion.  Both these motions largely mirrored Westergren’s motion for summary judgment.  The trial court granted the motions, without specifying the grounds for summary judgment.

Excluded Evidence

          In his first issue, Shunta asserts the trial court erred by excluding portions of Fogarty’s and Shunta’s affidavits and by excluding evidence demonstrating that Toups paid Westergren’s attorney’s fees in the underlying lawsuit.

          We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.  Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998).  “[I]n addition to showing an abuse of discretion, a party complaining of error in the exclusion of evidence must also show that the trial court’s error was reasonably calculated to cause, and probably did cause, the rendition of an improper judgment.”  Madison v. Williamson, 241 S.W.3d 145, 151 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (quoting City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995) and citing Tex. R. App. P. 44.1(a)(1)).  In our review of the summary judgment in this case, we consider all of the evidence Shunta presented to determine if he raises a fact question on his claims.  Id.  If the evidence, including the excluded evidence, does not raise a fact issue, then any abuse of discretion in the trial court’s exclusion of evidence is harmless.  Id.

Summary Judgment Standard of Review

          We review summary judgments de novo.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).  A matter-of-law summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law.   Tex. R. Civ. P. 166a(c).  The motion must state the specific grounds relied upon for summary judgment.  Id. In reviewing a matter-of-law summary judgment, we must indulge every reasonable inference in favor of the nonmovant, take all evidence favorable to the nonmovant as true, and resolve any doubts in favor of the nonmovant.  Valence, 164 S.W.3d at 661.

          In a no-evidence summary judgment, the movant represents that no evidence exists as to one or more essential elements of the nonmovant’s claims, upon which the non-movant has the burden of proof at trial. Tex. R. Civ. P. 166a(i).  The nonmovant then must present evidence raising a genuine issue of material fact on the challenged elements.  Id.  A no-evidence summary judgment is essentially a pretrial directed verdict.  Bendigo v. City of Houston, 178 S.W.3d 112, 113 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  A fact issue exists if 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) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).  If the evidence does no more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists, and summary judgment is proper.  See Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 278 (Tex. 1995); Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no pet.).  A respondent is not required to marshal its proof to defeat a no-evidence motion for summary judgment; it need only point out evidence that raises a fact issue on the challenged elements.  Tex. R. Civ. P. 166a(i) cmt. (1997).

          When, as here, a summary judgment does not specify the grounds on which it was granted, we affirm the judgment if any one of the theories advanced in the motion is meritorious.  Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

Standing

          In his second issue, Shunta asserts the trial court erred by granting summary judgment on the ground that Shunta lacked standing to bring this suit.  The defendants moved for summary judgment on the basis that Shunta lacked standing, asserting, “To have standing to assert a claim based on tortious interference with contract, the plaintiff must be a party to that contract or a third party beneficiary.”   Shunta asserts that the contract between Fogarty and La Porte contained a provision that entitled him to a commission for the sale of the property.  None of the defendants address this ground on appeal.

          The Texas Occupations Code provides,

A person may not maintain an action in this state to recover a commission for the sale or purchase of real estate unless the promise or agreement on which the action is based, or a memorandum, is in writing and signed by the party against whom the action is brought or by a person authorized by that party to sign the document.

Tex. Occ. Code Ann. § 1101.806(c) (Vernon 2009). To comply with this section, an agreement must: (1) be in writing and must be signed by the person to be charged with the commission; (2) promise that a definite commission will be paid, or must refer to a written commission schedule; (3) state the name of the broker to whom the commission is to be paid; and (4) either itself or by reference to some other existing writing, identify with reasonable certainty the land to be conveyed.  Lathem v. Kruse, 290 S.W.3d 922, 925 (Tex. App.—Dallas 2009, no pet.).  Here, the summary judgment evidence includes the earnest money contract between La Porte and Fogarty.  That contract is in writing and lists Shunta as the broker “act[ing] as intermediary between Seller and Buyer.”  The contract also provides Shunta’s fee will be “6% of the total Sales Price.”  The contract provides La Porte will pay the fee and the contract is signed by La Porte.  The contract also identifies the property at issue.  Thus, the undisputed summary judgment evidence shows Shunta had a written commission agreement.  We conclude Shunta has standing to sue for tortious interference with this agreement. See Northborough Corporate Ltd. P’ship, L.L.P. v. Cushman & Wakefield of Tex., Inc., 162 S.W.3d 816, 821 (Tex. App.—Houston [14 Dist.], 2005) (holding commission agreement in writing signed by party charged with paying commission satisfied section 1101.806(c)).  We sustain Shunta’s second issue.    

Statute of Limitations

          In his seventh issue, Shunta asserts the trial court erred by granting summary judgment on the ground that Shunta’s suit was barred by the statute of limitations. A party moving for summary judgment on the basis of an affirmative defense, such as limitations, must conclusively establish the defense. See KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  If the movant establishes the defense, the nonmovant must then provide summary judgment proof raising a fact issue in avoidance of the defense.  Id.   

          A.      Accrual of Cause of Action for Tortious Interference

          The statute of limitations for tortious interference with contract is two years.  Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 435 n.1 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (citing First Nat’l Bank of Eagle Pass v. Levine, 721 S.W.2d 287, 289 (Tex. 1986)).  Here, Westergren filed his suit and notice of lis pendens on July 9, 2004 and served Fogarty on July 29, 2004.  The defendants contend limitations began to run on filing of this suit and expired on July 9, 2006.   Shunta contends that limitations did not begin to run until Fogarty was served with the suit and notice of lis pendens and, therefore, limitations did not expire until July 29, 2006.  Shunta filed this suit on July 14, 2006, more than two years after the filing of Westergren’s suit and notice of lis pendens, but less than two years from the date Fogarty was served.  

          The statute of limitations begins to run when the cause of action accrues.  Waxler v. Household Credit Servs., Inc., 106 S.W.3d 277, 279 (Tex. App.—Dallas 2003, no pet.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon Supp.  2009)). Determining when a cause of action accrues is a question of law.  Id.   “Because the statute does not define or specify when accrual occurs, we look to the common law to determine when a cause of action accrues.”  Id. (citing KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 750 (Tex. 1999)).

          The first step in ascertaining when the statute of limitations begins to run in a tort action is to determine whether the act causing the damage constitutes a legal injury.  Burke v. Ins. Auto Auctions Corp., 169 S.W.3d 771, 776 (Tex. App.—Dallas 2005, pet. denied) (citing Waxler, 106 S.W.3d at 280).  “In most cases, a cause of action accrues when a wrongful act causes a legal injury, regardless of when the plaintiff learns of that injury or if all resulting damages have yet to occur.”  S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996); see Burke, 169 S.W.3d at 776. However, if the act complained of does not, by itself, constitute a legal injury, the cause of action accrues when the damages are sustained.  Id.; see also Snell v. Sepulveda, 75 S.W.3d 142, 143–44 (Tex. App.—San Antonio 2002, no pet.) (stating cause of action accrues when “a wrongful act causes some legal injury, even if the fact of injury is not discovered until later”).

          Shunta asserts that Westergren filing suit did not injure him because, until Fogarty was served with the suit, he remained willing to close on the property, which would have entitled Shunta to receive his commission.  In Snell v. Sepulveda, Sepulveda, an attorney, signed clients and began working on their case, including settlement negotiations with an insurance company. 75 S.W.3d at 143.  On January 8, 1996, Snell, another attorney signed the clients.  Id. Snell settled the clients’ case on January 19, 1996.  Id.  Sepulveda filed suit against Snell for tortious interference with contract on January 20, 1998, claiming it was filed within two years because January 19, 1998 was a legal holiday.  Id. at 143.   Sepulveda asserted he did not discover Snell had interfered with his contract until he learned of the contract, sometime after January 8, 1996. Id.  The court of appeals held the legal injury occurred when Snell signed the clients “in derogation of Sepulveda’s contractual rights,” even though Sepulveda did not learn of the fact of injury until later.  Id. at 144 (citing S.V., 933 S.W.2d at 4).    

          Here, the filing of the suit and the accompanying lis pendens meant that La Porte could not fulfill its contractual obligation to convey a clear title to Fogarty.  This, according to Shunta, is the reason Fogarty backed out of the contract. Thus, the legal injury occurred when Westergren filed his suit and notice of lis pendens.    The legal injury in this case occurred on July 9, 2004. See id. at 144.  Although Shunta contends he had no knowledge of Westergren’s filing of his suit and notice of lis pendens until Fogarty was served, actual knowledge is not required. See S.V., 933 S.W.2d at 4.  Furthermore, the filing of notice of lis pendens constitutes constructive notice of the suit.  See Tex. Prop. Code Ann. § 13.004 (Vernon 2004) (“A recorded lis pendens is notice to the world of its contents.  The notice is effective from the time it is filed for record, regardless of whether service has been made on the parties to the proceeding.”).  More than two years after the legal injury and more than two years after the notice provided by the filing of the lis pendens, on July 14, 2006, Shunta filed this suit.  Accordingly, Shunta’s claim for tortious interference with contract is barred by the two year statute of limitations, unless it was deferred by fraudulent concealment.  See id.

          B.      Discovery Rule and Fraudulent Concealment

          In the alternative, Shunta contends the discovery rule applies and the statute of limitations was deferred until he learned of Westergren’s lawsuit when Fogarty was served on July 29, 2004.  The discovery rule is a very limited exception to the statute of limitations and is construed strictly.  See Computer Assocs. Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex. 1996).  The discovery rule applies when “the nature of the injury incurred is inherently undiscoverable and the evidence of injury is objectively verifiable.”  Id. at 456.  The supreme court has noted that the discovery rule has been stated to include delayed accrual of a cause of action based on fraud or fraudulent concealment, but that there is actually a distinction between the two concepts.  S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996).  Here, Shunta does not assert that his injury is inherently undiscoverable, but that accrual of his cause of action should be delayed due to Westergren’s fraudulent concealment.  We therefore address the issue of fraudulent concealment and not the discovery rule.

          In fraudulent concealment cases, “accrual is deferred because a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run.”  Id. at 6.  A party asserting fraudulent concealment as an affirmative defense to the statute of limitations has the burden to raise it in response to the summary judgment motion, and to come forward with summary judgment evidence raising a fact issue on each element of the fraudulent concealment defense.  Mellon Serv. Co., 17 S.W.3d at 436 (citing American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994)).  The party must produce evidence establishing the defendant had (1) actual knowledge of the wrong; (2) a duty to disclose the wrong; and (3) a fixed purpose to conceal the wrong.  Id. (citing Casey v. Methodist Hosp., 907 S.W.2d 898, 903 (Tex. App.—Houston [1st Dist.] 1995, no writ)); see Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996) (holding that once defendant established its statute of limitations defense as a matter of law, plaintiff had burden to prove fact issue concerning fraudulent concealment to defeat summary judgment). 

          Shunta contends that accrual of his cause of action for tortious interference with contract claim should be delayed because Westergren “requested Fogarty to give him thirty days to negotiate a new deal with La Porte but never did attempt to do so and instead hired a lawyer to file [s]uit.”  However, the evidence introduced by Shunta to support this contention is Fogarty’s affidavit. In his affidavit, Fogarty states that, after Westergren failed to close on June 19, 2004, Westergren “requested I give him a few days to see if he could get the deal closed.  I agreed to do so and waited about a month.  I never heard back from Gordon Westergren after that meeting regarding his efforts to obtain a new contract or option to purchase the Property.”  Shunta does not explain how Westergren’s request for “a few days” to try and close the deal on the property is evidence that Westergren “deceitfully conceal[ed] wrongdoing until limitations ran.”  Furthermore, Shunta does not assert that Westergren had a duty to disclose the wrong or identify any evidence of such a duty.  Because Shunta has not come forward with evidence of each element of his fraudulent concealment defense, the trial court did not err by rendering summary judgment in favor of the defendants on limitations ground.  See Mellon Serv. Co., 17 S.W.3d at 436 (stating burden of coming forward with evidence of fraudulent concealment is on party asserting that fraudulent concealment deferred running of statute of limitations).

          We overrule Shunta’s seventh issue.  We need not address Shunta’s third, fourth, fifth, sixth, or ninth issues, which concern alternate grounds supporting the trial court’s rendition of summary judgment on Shunta’s claim for tortious interference with contract.  See Joe, 145 S.W.3d at 157.

No-Evidence Summary Judgment on Conspiracy Claim

          In his eighth issue, Shunta asserts the trial court erred by granting summary judgment on the ground that Shunta produced no evidence of his civil conspiracy claim.  The elements of civil conspiracy are        (1) two or more people; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as a proximate result.  Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); see also Juhl v. Airington, 936 S.W.2d 640, 644 (Tex. 1996) (merely proving joint intent to engage in conduct that resulted in injury not sufficient; civil conspiracy requires specific intent to agree to accomplish unlawful purpose or to accomplish lawful purpose by unlawful means).  In their motions for summary judgment, the defendants moved for summary judgment on the grounds that Shunta has no evidence “that 2 or more people conspired to do anything” and that there was no evidence of “a meeting of the minds.”

          Shunta asserts he provided some evidence of a meeting of the minds.  Shunta acknowledges that Toups testified that he advised Westergren not to file the suit. Shunta also points to Westergren’s testimony that Toups neither encouraged nor discouraged him from filing suit.  Shunta, however, does not explain how this discrepancy shows a meeting of the minds between Westergren and Toups.  

          Instead, Shunta contends, “That Toups encouraged Westergren to sue Fogarty and La Porte is substantiated by other evidence in the record.”  Specifically, Shunta states,

          Westergren and Toups had discussions and/or agreements to venture a partnership in connection with Defendant Westergren’s purchase of the property. After Westergren’s option expired but before Westergren filed his lawsuit, Toups and Westergren discussed the names of lawyers to hire, Toups recommended Robert Bruce Langston, Toups attended a meeting with Westergren at Langston’s law office where the filing of a lawsuit against Fogarty and La Porte was discussed, Toups furnished documents for the meeting, and Toups paid a portion of Westergren’s attorney’s fees in the lawsuit.  Toups did not disclose to La Porte (his principal) that he had met with Westergren and Langston about suing La Porte and Fogarty.  Toups, of course, had the motive to aid Westergren because he was at risk of losing a sizable commission if Fogarty had purchased the property.

          In accordance with [his October 6, 2004] contract, Toups testified he had made arrangements for Westergren to dismiss the lawsuit and lis pendens “shortly after he filed it.”  When asked if obtaining Westergren’s consent was ever an issue, Toups further testified: “Not in my mind.”  Toups and Westergren had previously had a discussion about Westergren acting as a consultant in the event DT Properties purchased the property.  Toups expected Westergren wanted an agreement to be the consultant and a limited partner in the venture that would ultimately purchase the property from DT Properties.  Westergren ultimately agreed to dismiss his lawsuit on the condition that Fogarty “totally disappeared.”

          Accordingly, the court should reverse and remand the summary judgment order because there [is] more than a scintilla of evidence of civil conspiracy.

(Citations to the record omitted).

          Shunta contends the above is some evidence of civil conspiracy, citing to Transport Insurance Company v. Faircloth, 898 S.W.2d 269 (Tex. 1995) and Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854 (Tex. 1968).  In Faircloth, Faircloth brought civil conspiracy claims against Transport Insurance Company, her guardian, and her attorney in connection with the settlement of her wrongful death claims when she was a minor.  Faircloth, 898 S.W.2d at 272.  Within hours of Faircloth’s parents’ death, an insurance adjustor for Transport began working to settle any potential claim.  Id. Either the day of the accident or the next day, the adjustor contacted Faircloth’s guardian and recommended attorneys to him.  Id. at 278.  The guardian hired an attorney who had not been among those recommended by the adjustor.  Id.  The attorney admitted that he had never handled a wrongful death claim like Faircloth’s, that he did not independently investigate the accident, and that he needed money.  Id. at 279.  Faircloth’s guardian telephoned the adjustor to ask her to explain the difference between a structured settlement and a lump sum payment.  Id. The adjustor also met with the guardian and attorney at the guardian’s home.  Id.  The claim was settled and approved by the probate court within three weeks of the accident.  Id.  The supreme court held the above was no evidence that Transport was aware of the attorney’s financial situation or that the guardian may have planned to profit improperly from Faircloth’s guardianship.  Id.  The supreme court noted there was no evidence Trasnport “committed, or was aware of, any unlawful act.”  Id.

          In Schlumberger, Schlumberger Well Surveying was charged with conspiracy in connection with oil wells that had been deviated from a normal vertical course in order to bottom the wells beyond lease lines and wrongfully take the oil of the neighboring owners.  435 S.W.2d at 855.  The supreme court assumed that Schlumberger “had good reason to believe that the conspiracy existed as alleged by Nortex, and that the existence and object of the conspiracy could have been discovered by the exercise of the slightest degree of diligence.”  Id. at 857.  Schlumberger knew the wells at issue deviated from a normal vertical course. Id. at 856.  Schlumberger also “took steps calculated to protect its customers who might be subject to investigation or to prosecution for drilling illegally deviated wells and producing oil therefrom.”  Id.  Schlumberger developed billing procedures that did not show the depth of the wells, which information was shown to its accounting department on separate paper that could be destroyed.  Id.  When an investigation began, Schlumberger “advised its employees to have poor memories.” Id. Schlumberger also destroyed “a valuable library of logs” that would have shown the depth of many of the wells.  Id.  The supreme court held this was no evidence that Schlumberger had actual knowledge that the wells had been drilled to wrongfully produce oil from adjacent leases, and, therefore, no evidence that Schlumberger was involved in a civil conspiracy.  Id. 

          Shunta cites King v. Acker, 725 S.W.2d 750 (Tex. App.—Houston [1st Dist.] 1987, no writ), for the proposition that “[b]ecause of its nature, proof of a conspiracy usually must be made by circumstantial evidence.”  However, in Faircloth, the Texas supreme court noted that, while circumstantial evidence may be used to establish a material fact, “it must constitute more than mere suspicion.” Faircloth, 898 S.W.2d at 278.  The supreme court also stated that in cases with meager circumstantial evidence, if circumstances are consistent with either of two facts, neither fact can be inferred.  Id.  Similarly, in Schlumberger, the supreme court stated that, although proof of a conspiracy “may be, and usually must be” made by circumstantial evidence, a vital fact may not be proved by “piling inference upon inference.”  Schlumberger, 435 S.W.2d at 858.

          In this case, the evidence cited by Shunta does not show Toups and Westergren had a “meeting of the minds” to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.  At most, there is some evidence that Toups knew Westergren would file suit, not that Toups knew the filing of suit was an unlawful act or a lawful act that was intended to accomplish an unlawful purpose or that Toups had the specific intent to agree to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.  See Juhl, 936 S.W.2d at 644; see also Chu v. Hong, 249 S.W.3d 441, 446 (Tex. 2008) (“Chu could only be liable for conspiracy if he agreed to the injury to be accomplished; agreeing to the conduct ultimately resulting in injury is not enough.”).   In addition, one fact Shunta stresses in support of his claim for civil conspiracy is Toups’s payment of a portion of Westergren’s attorney’s fees.  However, Shunta acknowledges in his brief that the payment was made in satisfaction of a pre-existing debt Toups owed to Westergren. Toups paid Westergren’s attorney directly, rather than paying Westergren, who would in turn pay his attorney. We conclude the evidence identified by Shunta is no evidence that Toups and Westergren had a meeting of the minds to tortiously interfere with the contract that included Shunta’s commission. We also conclude there is no evidence concerning a conspiracy involving either DT Properties or Grubb & Ellis. We overrule Shunta’s eighth issue. Having considered all the evidence, including the evidence Shunta asserts was erroneously excluded, in determining the trial court properly rendered summary judgment, we also conclude that the error, if any, in excluding the evidence was harmless, and overrule Shunta’s first issue.  See Madison, 241 S.W.3d at 151.

Conclusion

          We affirm the judgment of the trial court.

                                                                   Elsa Alcala

                                                                   Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.

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[1]           A lis pendens may be filed by a party seeking affirmative relief in an action involving title to, an interest in, or an encumbrance against real property.  Tex. Prop. Code Ann. § 12.007(a) (Vernon Supp. 2009).   Generally speaking, the purpose of lis pendens notice is twofold: (1) to protect the filing party’s alleged rights to the property that is in dispute in the lawsuit, and (2) to put those interested in the property on notice of the lawsuit.   World Sav. Bank, F.S.B. v. Gantt, 246 S.W.3d 299, 303 (Tex. App.—Houston [14th Dist.] 2008, no pet.).