Steven FRANKOFF, Appellant v. Susan C. NORMAN, Appellee.
No. 14-13-00162-CV
Court of Appeals of Texas, Houston (14th Dist.).
Sept. 9, 2014.
Rehearing En Banc Overruled Nov. 13, 2014.
448 S.W.3d 75
MARTHA HILL JAMISON, Justice.
Epperson, 213 S.W.3d 541, 544 (Tex.App.-Texarkana 2007, no pet.) (“Oftentimes, past is prologue; therefore, past violent conduct can be competent evidence which is legally and factually sufficient to sustain the award of a protective order.“); Banargent v. Brent, 14-05-00574-CV, 2006 WL 462268, at *2 (Tex.App.-Houston [14th Dist.] Feb. 28, 2006, no pet.) (mem. op.) (“While past violence does not mandate a finding of likely future violence, it can support such a finding in some instances ....“). Additionally, there was evidence here that John had twice violated the original protective order. And, Celeste testified regarding her fears that John would harm her in the future or kidnap their children.10
Although John suggests that these fears are not reasonable because they are the same fears Celeste had prior to the divorce-decree becoming final, he did not оffer any authority in support of this suggestion. Celeste testified that her fears had actually grown worse, which the trial court could have determined was a reasonable reaction given John‘s past violent behavior, the approaching expiration of the first protective order, evidence of John‘s two violations of that order, and Celeste‘s testimony that “John doesn‘t follow the rules” and had not obeyed parts of the divorce decree. Based on this evidence, we conclude that the trial court‘s finding was not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See Ortiz, 917 S.W.2d at 772. Accordingly, we overrule John‘s first issue.11
Attorney‘s Fees
In his second issue, John contends that “if the family violence protective order is reversed on appeal, the trial court‘s order awarding attorney‘s fees to Celeste must also be reversed.” John does not present any other challenge to the attorney‘s fees award. Having held that sufficient evidence supports the protective order, we do not reach John‘s second issue.
We affirm the trial court‘s order.
Brad Beers, Scott Rothenberg, Houston, for Appellee.
Panel consists of Justices JAMISON, McCALLY, and BUSBY.
OPINION
MARTHA HILL JAMISON, Justice.
In this case involving the disbursement of attorneys’ fees from the settlement of a lawsuit, appellant Steven Frankoff contends the trial court erred in (1) granting summary judgment in favor of appellee Susan Norman, (2) denying Frankoff‘s cross-motions for traditional and no-evidence summary judgment, (3) denying various motions and overruling numerous objections. We affirm.
Procedural History
Frankoff filed suit against Norman in Texas district court, alleging breach of fiduciary duty, fraud, and conversiоn, and claiming damages of over $500,000. Frankoff further alleged that he was entitled to settlement proceeds from the underlying lawsuit of $350,000 as his “fully earned fee.” In a previous appeal, this court affirmed the trial court‘s grant of summary judgment on all claims as to former defendant Mike Easton but reversed the trial court‘s grant of summary judgment as to Norman on the basis that Norman did not meet her summary judgment burden to establish as a matter of law that Frankoff‘s claims were barred and remanded the case to the trial court. See Frankoff v. Norman, No. 14-11-00152-CV, 2012 WL 2394050, at *6, 8 (Tex.App.-Houston [14th Dist.] June 26, 2012, no pet.) (mem. op.).
After the case was remanded, Frankoff filed a series of motions entitled “Amended Motion for Partial for [sic] Summary Judgment or in the Alturnative [sic] an Order Specifcing [sic] Facts That Are a Matter of Law.”1 He subsequently filed a motion for partial no-evidence summary judgment. The trial court apparently never ruled on these motions.2 Norman filed a combined traditional and no-evidence motion for summary judgment. The trial court granted Norman‘s motion, ordered Frankoff to take nothing by way of his claims, and rendered final judgment in Norman‘s favor.
Discussion
Frankoff raises 12 issues3 that appear to complain of the following actions by the trial court: (1) overruling Frankoff‘s numerous objections and special exceptions to Norman‘s motion for summary judgment, (2) granting summary judgment in favor of Norman, (3) failing to rule on Frankoff‘s motion for summary judgment, and (4) overruling objections and denying various motions. We conclude the trial court did not abuse its discretion in overruling
I. The trial court did not abuse its discretion in overruling Frankoff‘s objections and denying his special exceptions to Norman‘s motion for summary judgment.
As an initial matter, we address Frankoff‘s complaint that the trial court did not sustain his objections or grant his special exceptions to Norman‘s motion for summary judgment. Frankoff filed a document entitled “Plaintiffs Objections and Special Exceptions to Defendant[‘s] Traditional and No Evidence Summary Judgment” and also included special exceptions in his response to Norman‘s motion for summary judgment. We shall discuss both.
We review the trial court‘s evidentiary rulings for an abuse of discretion. Ashland Inc. v. Harris County Appraisal Dist., 437 S.W.3d 50, 55-56 (Tex.App.-Houston [14th Dist.] 2014, no. pet. h.). We likewise review a trial court‘s denial of special exceptions for an abuse of discretion. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex.2007) (“A trial court has broad discretion in ruling on special exceptions.“). A trial court abuses its discretion when it acts without regard to any guiding principles. Ashland Inc., 437 S.W.3d at 55-56. A ruling that admits or excludes evidence will not result in reversible error unless the evidence is determinative of the case. Id.
Frankoff‘s specific complaints on appeal relate primarily to evidence Norman presented to support traditional summary judgment. However, we conclude that the trial court did not err in granting Norman‘s motion on the basis of no evidence. Accordingly, we do not address any alleged errors regarding evidence Norman presented to support her motion based on traditional grounds for summary judgment. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.2004) (acknowledging if nonmovant does not satisfy its burden of production on the no-evidence motion, there is no need to analyze whether the movant satisfied its traditional summary judgment burden); Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 662 (Tex.App.-Houston [14th Dist.] 2012, pet. denied) (same).
Frankoff objected to Norman‘s contention that he was required to present evidence that the attorney-client fee agreement between them was forged because he was not required to prove that to support his claims against Norman. Assuming for argument‘s sake that the trial court overruled this objection in error, any such error would be harmless because we conclude below that Frankoff otherwise did not meet his burden to overcome no-evidence summary judgment as to each of his claims.
Frankoff further objected that the trial court did not grant his objections and special exceptions to Norman‘s claims that there was no evidence (1) of a conspiracy between Norman and Easton, (2) of breach of fiduciary duty, (3) that Norman made
Frankoff also argued, “Frankoff objected, to the materiality, to the relevancy, and once again he reincorporates all of his earlier exhibits and documents.” This objection does not refer to anything specific and thus was not sufficient to make the trial court aware of the complaint. See
In his response, Frankoff again objected and specially excepted to the no-evidence portion of Norman‘s motion for summary judgment as follows:
Objection: Frankoff once again objects and [s]pecial excepts as to all of points and statements in th[e paragraph pertaining to Norman‘s no-evidence points.] It is not relevant, it is immaterial, it is hearsay and in violation of law of the case. Objection: Defendant has improperly pled and relied upon material as described below.
In these paragraphs without any reference to pleading in the alternative, which is NOT appropriate in a motion for summary judgment, where one must prove your position as a matter of law. Furthermore in the context of a breach of fiduciary duty claim it is the offending party [who] carries the burden of proving fairness, and compliance with both the fairness of the transaction, the appropriateness of her conduct, and her ethical obligations. The burden of the elements as listed below fall to Norman not Frankoff. Finally in both of the paragraphs below the individualized points are sufficiently related to individual causes of action, or specifically related to the cause of actions [sic] as plead [sic] by Frankoff.
The only cognizable argument seems to be that Norman was not permitted to move for no-evidence summary judgment on the elements of Frankoff‘s claims on which she bore the burden of proof. Assuming for argument‘s sake that the trial court erred in denying Frankoff‘s perplexing objections, any such error would be harmless because we conclude below that Frankoff otherwise did not meet his burden to present evidence on each element of the claims on which he bore the burden of proof.
For these reasons, we overrule Frankoff‘s issues complaining that the trial court did not sustain his objections or grant his special exceptions to Norman‘s motion for summary judgment.
II. The trial court did not err in granting Norman‘s motion for summary judgment because Frankoff did not present evidence of every element of each of his claims on which he bore the burden of proof.
We review the trial court‘s granting of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Pipkin, 383 S.W.3d at 661. In reviewing either a no-evidence or a traditional summary judgment motion, all evidence favorable to the nonmovant is taken as true, and we draw every reasonable inference and resolve all doubts in favor of the nonmovant. Lone Star Air Sys., Ltd. v. Powers, 401 S.W.3d 855, 858 (Tex.App.-Houston [14th Dist.] 2013, no pet.).
In a no-evidence motion for summary judgment, the movant asserts there is no evidence of one or more essential elements of thе claims for which the nonmovant bears the burden of proof at trial.
More than a scintilla of evidence exists when reasonable and fair-minded individuals could differ in their conclusions. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex.2003); Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653, 655 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). Less than a scintilla of evidence exists if the evidence creates no more than a mere surmise or suspicion of a fact regarding a challenged element. Forbes Inc., 124 S.W.3d at 172; Mendoza, 276 S.W.3d at 655. If the nonmovant does not satisfy its burden of production on the no-evidence motion, there is no need to analyze whether the movant satisfied its traditional summary judgment burden. Ford Motor Co., 135 S.W.3d at 600; Pipkin, 383 S.W.3d at 662.
Norman moved for no-evidence summary judgment as to all of Frankoff‘s claims.5 Frankoff responded to the motion
To overcome summary judgment as to each of his claims of fraud, breach of fiduciary duty, conversion, and conspiracy, Frankoff was required to present evidence of each challenged element on which he bore the burden of proof.6 See
A. No evidence of fraud by material misrepresentation or failure to disclose
Material misrepresentation. Frankoff alleged fraud and fraud by omission. The elements of fraud are (1) that a false, material representation was made; (2) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (3) the speaker made the representation with the intent that the other party should act upon it; (4) the party acted in reliance on the representation;
Frankoff responded to Norman‘s no-evidence point on the first element of the fraud claim—that a false, material reрresentation was made—as follows: “Frankoff reincorporates in his responses, all of the exhibits and the evidence all presented in Frankoff‘s response to [Norman‘s motion for summary judgment] Paragraph 76 to each and every point-element presented her[e], and especially with particularity Plaintiff‘s response to point 4 and 5.” Setting aside the fact that the response does not indicate which portions respond to paragraph 76 of the motion for summary judgment,7 neither the trial court nor this court is required to comb through the referenced summary judgment evidence to see if a genuine issue of material fact had been raised as to the challenged element. See San Saba Energy, 171 S.W.3d at 331 (noting trial court was not required to undertake “оnerous task of searching the summary-judgment evidence to see if a genuine issue of fact had been raised as to each challenged element“). In fact, the response does not even specify what evidence was “presented in Frankoff‘s response to Paragraph 76.” Accordingly, Frankoff did not point out evidence that raised a genuine issue of material fact on this element. See id.; see also Kimbrell v. Mem‘l Hermann Hosp. Sys., 407 S.W.3d 871, 879 (Tex.App.-Houston [14th Dist.] 2013, no pet.).
Frankoff also responded that Norman misrepresented to him the amount of fees she was owed and in reliance on Norman‘s misrepresentation, Frankoff paid fees to Norman to which she purportedly was not entitled. In support of this argument, Frankoff submitted an unsigned fee agreement that Norman had emаiled to Frankoff. He included the following statement in his response purportedly referencing evidence in support of his claim: “(Ex fee agreement—her representation to [Peter] Riga on 1.23—all mentioning differing percentages due to her. Norman with the aid Easton [sic] stole $65,000 on 2.9 (see exhibit)).”8 We cannot tell what exhibit Frankoff refers to other than the fee agreement, if any. Frankoff does not explain how the unsigned fee agreement is evidence of a material misrepresentation by Norman as to the amount of fees to which she was entitled.
Finally, Frankoff argued “Norman represented to Frankoff, and [his attorney] that the confession of judgment was authorized and agreed to by [Equator‘s owner], who ‘[Norman] said’ was claiming ... as his own and сould settle, as a non-debtor outside of the bankruptcy filing of Equator. NON [sic] OF THIS WAS THE TRUTH[.]”9 Frankoff cites the confession of judgment but does not explain how it is relevant to this issue or the import of Norman‘s purported misrepresentation to Frankoff. Frankoff cites an affidavit from
“advised [Broach] that she was Frankoff‘s attorney, ... [Equator‘s owner] ... had entered a confession of judgment in a state law suit she had filed, and ... was a non-debtor ... not subject to the automatic stay. [The attorney] understood that [Norman] and Mr. Frankoff had just left the bank and drawn the funds on checks signed by the оther attorney.”
This is not evidence that Norman made a misrepresentation to Frankoff.
Frankoff also cited the deposition of Equator‘s owner in its entirety, but did not refer to any particular statements in the deposition or pages of the transcript. In citing the deposition wholesale, Frankoff failed to point out evidence that raised a genuine issue of material fact on the element of material misrepresentation. See Kimbrell, 407 S.W.3d at 879.
We conclude that Frankoff did not meet his burden of presenting more than a scintilla of evidence that Norman made a material misrepresentation of fact to him.
Failure to disclose material facts. The elements of fraud by omission are (1) the defendant failed to disclose material facts to the plaintiff that the defendant had a duty to disclose; (2) the defendant knew the plaintiff was ignorant of the facts and the plaintiff did not have an equal opportunity to discover the facts; (3) the defendant was deliberately silent when she had a duty to speak; (4) by failing to disclose the facts, the defendant intended to induce the plaintiff to take some action or refrain from acting; (5) the plaintiff relied on the defendant‘s nondisclosure; and (6) the plaintiff was injured as a result of acting without that knowledge. Horizon Shipbuilding, Inc. v. Blyn II Holding, LLC, 324 S.W.3d 840, 850 (Tex.App.-Houston [14th Dist.] 2010, no pet.). Norman moved for no-evidence summary judgment on each of these elements.
Frankoff numbered his responses to correspond with Norman‘s no-evidence points. Norman‘s no-evidence point number ten was that no evidence exists that Norman failed to disclose material facts to Frankoff. Frankoff did not include a corresponding numbered response to this point. His response skipped from no-evidence point number nine (no evidence that Frankoff suffered injury resulting from his reliance on any material misrepresentation) to number twelve (no evidence Norman knew Frankoff was ignorant of facts that were allegedly wrongfully withheld).10 However, in between Frankoff‘s numbers nine and twelve in the response, Frankoff copied the entire text of his response to Norman‘s no-evidence point as to the element of material misrepresentation. Construing the response liberally, we conclude this was an attempt to show Norman failed to disclose material facts to Frankoff. For thе reasons discussed above, Frankoff did not point out evidence that raised a genuine issue of material fact on the element of failure to disclose material facts on his fraud by omission claim. See Kimbrell, 407 S.W.3d at 879.
We conclude the trial court did not err in granting summary judgment as to Frankoff‘s fraud claims.
B. No evidence of breach of fiduciary duties of full disclosure and loyalty based on allegation that Norman failed to disclose disbursal of funds
In response, Frankoff again referenсed the unsigned fee agreement and the Broach affidavit. We have already held that these pieces of evidence do not demonstrate that Norman failed to disclose material facts to Norman. Frankoff also referenced a $46,000 check deposited by Norman along with the check from Riga to Norman for $65,625. These checks, standing alone, are not evidence Norman failed to disclose any information to Frankoff. Frankoff also referenced “[t]he deposition testimony cited above,” but did not point the trial court to the testimony relevant to this issue. See Kimbrell, 407 S.W.3d at 879. Frankoff further referenced Norman‘s “summary judgment response,” “statements and pleadings” from other lawsuits, another fee agreement,12 and a letter to Riga,13 but Frankoff again did not point the trial court to the portions of these items relevant to the issue or explain why this evidence was relevant.
As we have already held, Frankoff failed to point out evidence that raised a genuine issue of material fact that Norman failed to disclose material facts. Accordingly, Frankoff likewise failed to point out evidence that Norman breached her fiduciary duties of full disclosure and loyalty by disbursing funds without his knowledge. The trial court did not err in granting summary judgment in favor of Norman on Frankoff‘s breach of fiduciary duty claims.
C. No evidence Frankoff was entitled to property
The elements of conversion are (1) the plaintiff owned, had legal possession of, or was entitled to possession of the subject property; (2) the defendant unlawfully and without authorization assumed and exercisеd control over the property, to the exclusion of and inconsistent with the plaintiff‘s rights; and (3) the defendant refused to return the property. MSMTBR, Inc. v. Mid-Atl. Fin. Co., No. 01-12-00501-CV, 2014 WL 3697736, at *9 (Tex.App.-Houston [1st Dist.] July 24, 2014, no. pet. h.) (mem. op.). Norman moved for no-evidence summary judgment on the first two elements.
Frankoff responded to Norman‘s no evidence point as to the first element—no evidence “that Frankoff was entitled to possession of his allegedly ‘fully earned fee’ of $350,000” as follows:
See response to Point I hereby incorporated and re-alleged as an answer to this no evidence point. Frankoff also incorporates and re alleges [sic] all of [the] exhibits[,] arguments, evidence contained in this motion in its entirety.... At the time these events occurred Frankoff had an unquestiоned ownership right. These funds were his and his alone ... Norman had so plead [sic] in bankruptcy pleadings, and is now estopped from asserting to the contrary. The [$]46,000 was drawn (stolen actually) from Frankoff‘s account.
In footnotes, Frankoff stated that he “reasserts and incorporates by reference all of deposition material and summaries as well as exhibit references into this response.” He also cited “bank records—remitter on Norman‘s $46,000 was Frankoff—See check (supra).” “Point I” of the response consists of an 18-page list of purported evidence with no context for what claim or claims the evidence was supposed to support. Moreover, Frankoff does not explain how Point I supports his contention that he presented evidence that he was entitled to the fee.
With regard to his incorporation of the entirety of almost 700 pages of purported evidence attached to his response, as set forth above, the trial court was not required to search through this evidence to determine whether Frankoff presented evidence to support his claim of conversion. See San Saba Energy, 171 S.W.3d at 331. Blanket citation to voluminous records is not a proper response to a no-evidence motion for summary judgment. See Eaton Metal Prods., L.L.C. v. U.S. Denro Steels, Inc., No. 14-09-00757-CV, 2010 WL 3795192, at *6 (Tex.App.-Houston [14th Dist.] Sept. 30, 2010, no pet.) (mem. op.) (holding 700 pages of undifferentiated documentation attached to response need not be considered by trial court).
Similarly, Frankoff‘s cite to “bank records” did not direct the trial court to their location in the response. However, we note that there is a $46,000 check in the record that was written to and deposited by Susan Norman. Under the signature line for the check is a notation, “remitter Steven B. Frankoff.” However, the check does not indicate what ultimately happened to these funds, that Frankoff was entitled to them, or that he never received them. We conclude the check alone is not more than a scintilla of evidence that Frankoff owned, had legal possession of, or was entitled to possession of the disputed funds.
We conclude that Frankoff failed to point out evidence that a raised a genuine issue of material fact as to whether Frankoff owned, had lеgal possession of, or was entitled to possession of the subject property. See Kimbrell, 407 S.W.3d at 879. Accordingly, the trial court did not err in granting summary judgment in Norman‘s favor on Frankoff‘s conversion claim.
D. No evidence of underlying tort
Frankoff‘s conspiracy claim was based on his assertion that Norman conspired with Easton to commit the other torts alleged by Frankoff. Conspiracy is a “derivative tort” because a defendant‘s liability depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996); Williams v. Shell Exploration & Prod. Co.-Americas, No. 14-13-00309-CV, 2014 WL 3555741, at *8 (Tex.App.-Houston [14th Dist.] July 17, 2014, no. pet. h.) (mem. op.). If the defendant‘s liability for the alleged underlying torts is foreclosed as a matter of law, there is no claim for conspiracy. Soon Phat, L.P. v. Alvarado, 396 S.W.3d 78, 94 (Tex.App.-Houston [14th Dist.] 2013, pet. denied). Becаuse the trial court properly granted summary judgment on Frankoff‘s other claims, it did not err by granting summary judgment on the conspiracy claim.14 See Williams, 2014 WL 3555741, at *8.
Frankoff failed to present more than a scintilla of probative evidence to raise a genuine issue of material fact as to each element of his claims on which he bore the burden of proof. Accordingly, we hold that the trial court did not err in granting no-evidence summary judgment in Norman‘s favor. Because we affirm this part of the trial court‘s judgment, we need not address the merits of Norman‘s arguments in support of traditional summary judgment.
III. Frankoff may not seek interlocutory appeal of the denial of his partial motions for summary judgment.
Frankoff argues the trial court erred in denying his cross-motions for partial summary judgment. Generally, a party may not seek appellate review of the trial court‘s denial of a motion for summary judgment because it is an interlocutory ruling and not a final judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996); Cont‘l Cas. Co. v. Am. Safety Cas. Ins. Co., 365 S.W.3d 165, 172 (Tex.App.-Houston [14th Dist.] 2012, pet. denied). However, an exception may apply when both parties move for summary judgment and the trial court grants one motion but denies the other. Cont‘l Cas. Co., 365 S.W.3d at 172. For this exception to apply, both parties must have sought a final judgment in their cross-motions for summary judgment. Id. Because Frankoff moved only for partial summary judgment, the exception does not apply, and Frankoff may not appeal the denial of his partial motions for summary judgment. See id.
IV. Other issues pertaining to the trial court‘s overruling certain objections and denying certain motions are wаived.
In his list of issues presented, Frankoff complains that the trial court abused its discretion in overruling his objections to Norman‘s request to file an amended answer and denying his motion in limine and motion for new trial.15
In his statement of facts, Frankoff generally states that the trial court overruled his objections to Norman‘s request to file an amended answer. In the body of the brief, Frankoff complains about this ruling, arguing “Frankoff argued the law of the case and objected to Norman‘s amended answer for the same factual and legal reasons [for] which this court rejected them. At that hearing, the trial court agreed with Frankoff‘s objections.” (Emphasis omitted.) Frankoff, however, includes no legal
Similarly, in the statement of facts section of his brief, Frankoff states he filed a motion in limine and notes he filed a motion for new trial. He includes no further argument or analysis with regard to these motions. Accordingly, he has waived his complaints pertaining to the trial court not granting the motions.16 See
We overrule these issues.
We affirm the judgment of the trial court.
MARTHA HILL JAMISON
JUSTICE
JERRY L. STARKEY, TBDL, L.P., and PBW Development Corporation, Appellants/Cross-Appellees v. Glen GRAVES, Appellee/Cross-Apрellant.
Nos. 14-12-00633-CV, 14-12-00709-CV
Court of Appeals of Texas, Houston (14th Dist.).
Sept. 11, 2014.