Jeff and Courtney Blankinship,and Miracle Golf Concepts v. Timothy Brown, Gary W. Blanscet and Blanscet Sutherland, Hooper
2013 Tex. App. LEXIS 2740
Tex. App.2013Background
- Brown formed Miracle Golf Concepts and later sold it to Golf & Tennis Pro Shop, Inc. (G&TPS); he worked for G&TPS under a two-year non-compete.
- A dispute with G&TPS over wages led to Brown's termination and a Termination Agreement and Mutual Release dated March 17, 2010 (effective December 31, 2008).
- In 2009 Brown began a business relationship with the Blankinships to pursue Miracle Golf Concepts independently.
- An independent contract was drafted in Sep 2009, revised by Blanscet for Brown, and signed by the Blankinships on October 14, 2009.
- Brown discussed his prior G&TPS dealings with the Blankinships on October 23, 2009; the Blankinships then terminated their contract and sued Brown for fraud, with additional causes of action against Blanscet and his firm for fraud, negligent misrepresentation, and related aiding/abetting theories.
- The trial court granted a traditional MSJ on October 27, 2010, then partially reinstated aiding/abetting claims after a motion to reconsider, and granted a subsequent no-evidence MSJ on January 21, 2011; the jury later ruled in appellants’ favor on breach of contract, negligent misrepresentation, and fraud, but this appeal challenges the Blanscet-related rulings and a post-judgment deposition protective order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court properly granted summary judgment on fraud and negligent misrepresentation claims. | Blankinships argued they relied on Blanscet's representations and nondisclosures. | Blanscet/Blanscet Sutherland argued no justifiable reliance; discovery/misrepresentation lacked evidence. | Held: for appellees; no genuine reliance issue as a matter of law. |
| Whether the discovery denial and continuance regarding aiding/abetting claims was proper. | Blankinships asserted denial of discovery and continuance should be reversed. | Appellees contended waiver of aiding/abetting claims barred review; discovery moot. | Held: issues waived; discovery/continuance challenged for those claims are moot. |
| Whether the January 21, 2011 no-evidence summary judgment on aiding/abetting and nondisclosure claims was proper. | Blankinships claimed there were genuine issues of material fact as to reliance. | No evidentiary dispute established; reliance not shown under McCamish/Kastner framework. | Held: no substantial dispute; evidence insufficient; judgment for appellees affirmed. |
| Whether the post-judgment deposition protective order was an abuse of discretion. | Blankinships sought deposition to challenge trial testimony and potentially obtain new evidence. | Discovery limited to enforcement of judgment; all liability resolved; deposition beyond enforcement irrelevant. | Held: protective order affirmed; no abuse of discretion. |
Key Cases Cited
- AKB Hendrick, LP v. Musgrave Ent., Inc., 380 S.W.3d 221 (Tex. App.—Dallas 2012) (reliance element in fraud cases; nonclient may not rely unless invited to do so)
- Horizon Shipbuilding, Inc. v. Blyn II Holding, LLC, 324 S.W.3d 840 (Tex. App.—Houston [14th Dist.] 2010) (fraud by nondisclosure elements; duty, knowledge, and reliance)
- McCamish, Martin, Brown & Loeffler v. F.E. Appling Investments, 991 S.W.2d 787 (Tex. 1999) (limits on attorney-to-nonclient liability for negligent misrepresentation)
- Kastner v. Jenkins & Gilchrist, P.C., 231 S.W.3d 571 (Tex. App.—Dallas 2007) (extends McCamish to certain nonclient reliance scenarios; distinguishes ordinary transmission of documents)
- Taylor v. State, 293 S.W.3d 913 (Tex. App.—Austin 2009) (briefs must be supported by legal citations; conclusory arguments insufficient)
- Arias v. Brookstone, L.P., 265 S.W.3d 459 (Tex. App.—Houston [1st Dist.] 2007) (liberal briefing standard does not excuse rule compliance)
- Young v. Gumfory, 322 S.W.3d 731 (Tex. App.—Dallas 2010) (summary judgment review standards; evidentiary considerations)
- In re K.L.J. Ltd. P’ship, 336 S.W.3d 286 (Tex. App.—San Antonio 2010) (protective orders standards; specificity required)
- In re Collins, 286 S.W.3d 911 (Tex. 2009) (discretion in sustaining protective orders)
- Masinga v. Whittington, 792 S.W.2d 940 (Tex. 1990) (scope of trial court discretion in protective orders)
- Joyner v. DeFriend, 255 S.W.3d 281 (Tex. App.—Waco 2008) (disciplinary rules do not create private causes of action)