Tho Q. Pham v. Jason Bryan Carrier, Stephen Bradley Womack, Michael Chadwick Pickelsimer AKA Michael Chadwick Womack, HMP Partners Management Inc. and Carmack Properties, LLC
07-15-00031-CV
| Tex. App. | Apr 3, 2017Background
- Pham was a 40% member of Austin Barfish, LLC (Barfish); Carrier and Womack held the remaining 60% and controlled operations of Chuggin’ Monkey on Sixth Street, Austin.
- In late 2005 Barfish’s bar assets were conveyed to Carmack Properties, LLC, an entity formed by Carrier and Womack that excluded Pham; Carmack took possession in January 2006.
- Pham moved away in 2004, told the other members to retain his share of profits, had little contact thereafter, and first reconnected with Carrier in 2011.
- Pham sued in 2013 asserting individual and derivative claims (fraud, breach of fiduciary duty, conversion, unjust enrichment), sought revocation of Barfish’s termination under Tex. Bus. Orgs. Code §11.153 and other relief; appellees moved for summary judgment asserting traditional and no‑evidence grounds including limitations.
- The trial court sustained special exceptions dismissing certain fiduciary‑duty based claims and ultimately entered a take‑nothing summary judgment; on appeal the court affirmed summary judgment as to Pham’s individual claims but reversed and remanded as to his derivative claims and his request to revoke Barfish’s termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Grant of summary judgment on claims not addressed in motion (revocation §11.153; derivative fraud & unjust enrichment) | Pham: summary judgment on these claims was improper because appellees’ motion did not address them | Appellees: omission harmless because other grounds (limitations) preclude recovery; revocation is a remedy not a cause of action | Court: Sustained for Pham — trial court erred to grant summary judgment on those unaddressed claims; remanded those claims for further proceedings |
| 2. Continuing tort / validity of 2005 sale (accrual) | Pham: if the sale was invalid, Barfish still owned the bar and appellees’ continuing diversion of profits creates continuing torts delaying accrual | Appellees: the injury arose when Carmack took possession in Jan 2006 — single wrongful act completed then, so limitations accrued | Court: Overruled Pham — continuing tort inapplicable; accrual tied to completed transfer; individual claims barred by limitations |
| 3. Discovery rule for breach of contract and conversion | Pham: injury was inherently undiscoverable given his absence, lack of public notice, and appellees’ concealment; discovery rule defers accrual | Appellees: Pham could have discovered the sale via public records, tax filings, or by requesting company records; discovery rule does not apply | Court: Overruled Pham — injury not inherently undiscoverable; appellees negated discovery rule as to individual breach/conversion claims |
| 4. Fraud and fraudulent concealment tolling | Pham: fraudulent concealment/actual fraud prevented discovery and tolls limitations; reasonable diligence is disputed | Appellees: reasonable diligence would have revealed facts (franchise tax reports, available records); no fact issue suffices to avoid summary judgment | Court: Overruled Pham on individual fraud/related claims — as a matter of law reasonable diligence would have uncovered the wrong; fraudulent concealment does not save those individual claims |
Key Cases Cited
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (de novo review of summary judgment)
- Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985) (summary judgment burden and review)
- G & H Towing Co. v. Magee, 347 S.W.3d 293 (Tex. 2011) (error to grant summary judgment on omitted causes unless harmless)
- Merriman v. XTO Energy, Inc., 407 S.W.3d 244 (Tex. 2013) (affirmance permitted if any asserted ground is meritorious)
- Via Net v. TIG Ins. Co., 211 S.W.3d 310 (Tex. 2006) (discovery rule and due diligence for contract claims)
- Valdez v. Hollenbeck, 465 S.W.3d 217 (Tex. 2015) (accrual and discovery rule principles)
- Shell Oil Co. v. Ross, 356 S.W.3d 924 (Tex. 2011) (discovery rule is a narrow exception; fraudulent concealment doctrine explained)
- Hooks v. Samson Lone Star, 457 S.W.3d 52 (Tex. 2015) (reasonable diligence may be a fact issue but can be decided as a matter of law in some circumstances)
- HECI Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998) (inherently undiscoverable standard)
- Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 2008) (limits on tolling by fraudulent concealment where plaintiff failed to inquire)