Maswoswe v. Nelson
327 S.W.3d 889
Tex. App.2010Background
- Nelson (25%) and Apodaca (5%) acquired ownership interest in the Southeast Texas Mustangs; Maswoswe retained 70%.
- Plaintiffs filed suit on February 3, 2009 alleging Maswoswe breached a contract and seeking specific performance and damages; they also sought injunctive relief.
- The trial court granted an ex parte TRO and later an agreed temporary injunction prohibiting Maswoswe from certain actions.
- Maswoswe was unrepresented after May 2009 and did not respond to requests for admissions served by plaintiffs in May 2009.
- Plaintiffs moved for summary judgment in June 2009 based on deemed admissions; attached was a one-page Letter of Ownership Partnership describing ownership setup and future adjustments.
- The trial court granted summary judgment totaling $4 million ($1M to each plaintiff for breach of contract and $1M punitive damages each) without Maswoswe’s response.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the judgment conforms to pleadings | Maswoswe breached the alleged partnership and fraud claims. | Petition did not plead partnership or fraud; only specific performance and injunctive relief. | Issue sustained; judgment cannot rest on unpled claims. |
| Sufficiency of evidence supporting summary judgment | Deemed admissions prove breach and damages as a matter of law. | Deemed admissions do not conclusively prove all elements; some are legal conclusions or improper | Issue sustained; deemed admissions insufficient to support summary judgment. |
| Trial by consent | Unpled issues were tried by consent in the summary-judgment context. | Maswoswe did not participate or respond, so no trial by consent. | Issue sustained; no trial by consent established. |
Key Cases Cited
- In re S.A.A., 279 S.W.3d 853 (Tex.App.-Dallas 2009) (judgment must conform to pleadings; void otherwise)
- Cedyco Corp. v. Whitehead, 253 S.W.3d 877 (Tex.App.-Beaumont 2008) (deemed admissions must prove all elements; improper to rely on legal conclusions)
- Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991) (unpled affirmative defense may support summary judgment when raised and not objected to)
- Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex. 2007) (issues not pleaded may be tried by consent if not objected to in time)
- Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887 (Tex. 2000) (pleadings provide notice; liberal construction allowed but not to read in unpleaded claims)