*1 53 Servs.,Inc., v. Ins. Co. Am. Review Fin. right of to under that its exclude Anadarko (Tex. 2000). right. language concerning The deed 81 S.W.3d right to lease the minerals is executive Lightning does not contend that to control insufficient reserve of the sur- Agreement to grant failed Anadarko con- rights face to as the Hurds mineral own- on sent drill the Ranch. Anadarko was ers, except might it the extent rea- rights exercising its Agreement under the (and sonably to use necessary the surface prepared Ranch, when drill on the subsurface) develop and produce miner- this shows, and so far drilling record Merriman, als. See at 248-49. plans rights granted were within the Finally, we it is note irrelevant Agreement and did tortiously interfere existing Chaparral there are on wells Lightning’s rights. with contractual lease might that there be surface on locations Accordingly, agree with the court of adjacent Chaparral other property appeals that Anadarko was entitled to where Anadarko could site its Our wells. summary judgment on the inter- tortious is on necessity, decision not based but on ference contract with claim. respective rights the surface estate Further, and the mineral estate. the num- IV. Conclusion pass-through might ber of wells a driller is not with claims drill relevant The appeals court of is Thus, in trespass against that driller. even affirmed.

though the exact Anadar- number wells disputed,

ko plans dispute is drill disposition not affect

does our the tres-

pass issue. affirm of appeals’ judg-

We the court trespass

ment regarding the issue. B. Tortious Interference FIRST UNITED PENTECOSTAL with Contract OF CHURCH BEAUMONT d/b/a Lightning argues that the court of Beaumont, Anchor of Life New f/k/a appeals incorrectly Light determined that Tabernacle, Appellant ning’s tortious interference with contract v. legal claim fails because Anadarko has the right plans to do what it to do. Leigh PARKER, Appellee with a Tortious interference NO. 09-14-00413-CV contract occurs a party when interferes Appeals Texas, Court willfully contract intentionally Beaumont. proximately and the interference causes Murray or loss. damages actual May on Submitted Constr., Inc., Crest August Opinion Delivered (Tex. Justification an affirmative such a defense to claim and "is established a matter law when the acts

plaintiff complains of as interfer tortious merely

ence are exercise defendant’s Prudential rights.” its own contractual

BACKGROUND attorney Kip Church sued Firm, Parker, Leigh and Lon- Lamb Law recovery Treadway nie “the C. (1) damages occasioned theft and em- bezzlement, (2) misapplication of funds (3) fiduciary, same, (4) knowing participation (5) (6) fraud, legal malpractice, conspiracy, (7) wrongful of [defen- other conduct peti- According dants.” *4 tion, property suffered dam- the Church Rita, Treadway age from Hurricane and pastor “chief execu- was the Church’s and manager” at that time. Tread- tive and way hired a firm to file suit eventually law carrier, against insurance April subsequently the case in and settled petition that The stated 2008. recovery, after the Church’s net deduction attorney’s expenses, and was fees $1,094,611.02. from protect the funds in another potential judgment creditors Beeton, Beeton, Timothy Simpson & A. against lawsuit the Church and pending Williams, Williams, Lewis & B. Wade staff, Church “directed Holland, McLeod, LLP, Alexan- Jocelyn in trust deposited held TX, Galveston, for der, Apffel, Powel & Firm.” had the Lamb Law The Church Appellant. Firm, Lamb, Lamb and Parker Law hired Treadway in represent that lawsuit. Burmeister, Landrey, Moore B. Jon was The Church contended that Parker Matuska, TX, LLP, Beaumont, Ma- Jamie Firm, associated with Lamb Lamb Law TX, Arthur, Firm, for Port tuska Law Parker, or, Lamb Law alternatively, Appellee. Firm, and Lamb “acted as a ven- alleged Additionally, the ture.” G.J., McKeithen, Kreger and Before knowingly participated that Parker Johnson, JJ. “con- Lamb’s breach misrepre- sciously intentionaly made OPINION MEMORANDUM to conceal to [the Church]” sentations belonging to the theft of the funds Lamb’s McKEITHEN, Justice Chief STEVE alleged that Church. Church further First United Pentecostal willfully breached knowingly and Parker Beaumont, The Anchor candor, loyalty Beaumont honesty, his duties of d/b/a (“the Church”) “willfully New Life Tabernacle to the f/k/a assisted, conspired order appeals court’s malice legal the trial and with with[,] appellee summary judgment favor with Co-Defen- participated affirm trial court’s that breached the fiducia- Leigh dants conduct Parker. We his In ry [the Church].” duties owed judgment. answer, general denial, Parker asserted attached as contended, affidavit, among and he other things, his in which he averred attorney he was contract lawyer, that he was a “working contract involvement Kip Lamb’s trust account Lamb the Lamb Law Firm” and/or could not money into and, such, transfer or out of the right or ability “had no account, and he never received Kip control the fund of trust not did money placed with Lamb. money moved in know when or out of was Parker also in the stated he affidavit that ...[,] trust account not and did have first learned that money access books and records of the longer trust during account account.” Parker also contended that “he addition, summer did learn that million was no $1.1 that he stated affidavit should have longer trust account until investigated when he learned that 2010,” the summer and that Lamb had account, was no longer the trust spent the entire amount the end of not, he but and he did stated he September 2009. should have informed Church of the judg- filed a motion for theft as soon as learned of it he rather *5 2012, in July ment but the Church nonsuit- waiting than until October 2011. Parker prior Parker hearing ed to the scheduled bank of deposits also attached records brought on the motion. After Church the withdrawals from Lamb’s trust account Parker back in subsequent into a from the case time the Church’s the settlement deposited, were as petition, supplemental mo- funds well as a filed a bank record indicating only that Lamb was tion for the both traditional no-evidence signatory on the account. trust summary judgment, incorporating pre- his summary judgment by vious motion for motion, In its response to Parker’s the original reference. Parker’s motion for genuine Church that contended issues was, summary judgment like supple- his fact material and asserted that exist Par- motion, mental motion hybrid a for sum- to ker owed duties the Church. mary judgment. In his initial motion for that The Church argued receipt summary judgment, Parker contended a profit presump- created a benefit that Church the no of at least had tion unfairness that “shifts the burden persuasion one element of the seven of of to party each causes the or the claiming action against validity asserted benefits of the had that, transaction to that show transaction argued Parker. Parker as contract fair equitable beneficiary.” was lawyer, he had no involvement that Church contended “the account, any trust received never judgment evidence establishes con- active money the Church placed with cealment the facts Parker which spent money Lamb had before end part constitute actionable fraud on his 2009, not and Parker did know Lamb joint tortfeasor with Lamb.” spent had summer until Parker, According each causes of response Attached to the was torts, action by the Church asserted are given sworn statement on De- by Parker causation, require proof which 20, 2011, cember which was attached no of Par- has an exhibit a Parker wrote to letter 2011, disappearance 5, ker’s conduct caused the of Church on October In the sworn money. statement, stated, ,.,, the Church’s “I lied Leeds, (Tex. regretful doing I’m it.” Parker tinez v. very pet.) (citing Ridg he have Paso App.—El also indicated that should investi- 600). missing gated funds. non- reported way, at If the about his with When asked status failed more than a scin produce movant Firm, he to Lamb Parker stated that Law fact raising genuine of evidence tilla “joint together.” and Lamb were venturers challenged on the elements of its issue claims, need not tradi address whether 5, 2011, of October stated Parker’s letter Id. proper. tional he that Lamb after became aware funds, longer possessed Law Firm no summary judgment We review duty and inform investigate he “had a v. Operating de novo. Co. orders Valence funds were [the Church] their 2005); Dorsett, (Tex. longer there[,]” not but he did do so. Provident & Accident Ins. Co. letter, Life that when the stated Knott, July him in 2011 when the asked of a We review trial court’s funds, Parker did Church could access the summary judgment motion for no-evidence longer that the were no disclose under set forth Rule standards account, in- Law Firm’s but he 166a(i). 166a(i). P. See Tex.R. Civ. hope anticipated stead lied summary judgment defeat no-evidence project funds from another in which Lamb motion, produce the non-movant must Firm Law was involved could used repay explained raises the Church. nothing genuine that he issue regarding letter do of material fact misappropriation challenged by each movant. element *6 it, I report but I did not “when discovered Ridgway, Ford Motor Co. v. 135 S.W.3d it, worse, up my it to 2004). I covered lies 598, (Tex. 600 The non-movant you and church.” the by a genuine raises issue of fact material more a scintilla evidence producing than conducting hearing,

After trial the challenged establishing the existence. element’s granted an Par- signed court order that .; Id Forbes Inc. v. Bios Granada ker’s motion and referenced both tradition- ciences, Inc., (Tex. 167, 124 S.W.3d 172 al In sole grounds. and no-evidence its 2003). More a scintilla exists than when issue, appellate argues the the the is evidence reasonable and such trial mo- court erred people con fair-minded can differ their tion for summary judgment the “because If Ridgway, clusions. 135 S.W.3d at 601. questions fact evidence raises of material “ prove evidence fact ‘the offered a vital against the Church’s claims Parker.” is so no weak as do more than create only challenges summary The Church the existence, suspicion or judgment for mere surmise its respect to its claims the is no more than a scintilla fiduciary aiding evidence duty, breach of and abet- and, effect, legal Id. ting, enterprise. evidence.’” Inc., Con/Chem,

(quoting v. 650 Kindred ANALYSIS (Tex. 61, 1983)). 63 S.W.2d determin ing produced for whether the non-movant has party moves both When evidence, than a scintilla of we view summary and a more traditional no-evidence light the most judgment, must first review evidence the favorable the sum mary disregard contrary the judgment non-movant and all under no-evidence 166a(i). Id.; King set forth in Mar- standards Rule inferences.

59 Ranch, 742, Chapman, However, Inc. v. Church had lost loan. (Tex. 750-51 Church did not establish that Parker’s un disclosure, timely rather than Lamb’s theft above, As the Church only discussed loan, caused the loss of the summary challenges judgment with re nor did the any Church introduce sum spect for to its claims fiduciary mary judgment indicating duty, conspiracy, joint enterprise,- civil amount of the loan. The Church failed to aiding abetting. Because the Church produce any damages complain summary does not were claims, by either improper as its other Parker’s failure to has investigate regard disclosure; waived error with or his untimely those Satterwhite, therefore, claims. Jacobs v. 65 trial court did not err 653, (Tex. 2001) (per S.W.3d 655-56 cu granting summary judgment in favor of riam) (Grounds of error not asserted Parker with to the Church’s argument issues or of appeals the court fiduciary duty breach of Ridg claim. See waived.). are 600; Forbes, way, 135 at S.W.3d 172; S.W.3d at see also Laidlaw Waste first We turn (Dallas), Sys. Wilmer, Inc. v. City fiduciary breach of prove claim. To (Tex. 1995) (Pleadings do an duty, action for breach “ summary constitute judgment evi plaintiff must establish ‘the existence of a dence.). duty, breach of duty, causa ” tion, damages.’ Haden David J. turn now to We Sacks, P.C., claim for conspiracy. prove civil App.—Houston 2009, pet. [1st Dist.] de conspiracy, claim civil plaintiff must nied) Trucking Abetter (quoting Co. v. Ar demonstrate that defendant was a izpe, (Tex.App. member of a combination of two more —Houston pet.)). [1st Dist.] persons; object of the combination was in his motion for contended judg accomplish purpose; an unlawful produced ment no evi meeting dence of members judg causation. The had a minds on action; ment although object evidence demonstrates that course one *7 unlawful, Parker Lamb Law Firm was holding knew members an committed overt act to the belonging Parker did object action; of to further the or course not year know until almost a later that the plaintiff proxi and as a injury suffered longer Church’s in was the trust wrongful mate result of the act. Ins. Co. account. The Church evi produced Morris, 667, N. Am. v. S.W.2d of dence that in participated Parker Lamb’s (Tex. 1998). produce The Church not did money; rather, theft of the the Church any of that Parker evidence knew Lamb’s only demonstrated after the summer theft, theft or in nor participated did of investigate Parker failed and produce any the Church that Par evidence participated concealing the theft until investigate ker’s failure to theft and October when Parker informed the timely failure to disclose the theft caused Church gone. that the funds were any damages. of The trial by granting summary court did not err Church contended that had been judgment of as to damaged by losing prefer- the theft favor Parker after conspiracy ential of construction loan Church’s civil cause action. and introduced evi- id.; Ridgway, dence of Parker’s admission that see at the See also 135 S.W.3d (Tex. 1996). Aiding abetting Forbes, 172; 600; at Laidlaw 644 and 124 S.W.3d is premised on an dependent at claim which Sys., 904 660. Waste Young, underlying & tort. Ernst to the Church’s now turn We Co., 51 Ins. L.L.P. v. Pac. Mut. Life of enterprise The elements joint claim. Therefore, if liability are: enterprise theory joint as fails, aiding underlying tort an and (1) be express agreement implied an tort abetting claim related the failed (2) group; the members tween previ- As have likewise fails. See id. out purpose common to be carried err the trial not ously explained, court did (3) community pecuniary enterprise; summary judgment in favor of granting (4) and purpose; in that common interest claims for to the Church’s as control the equal right and an direct duty, conspiracy, civil Able, Dep’t Transp. enterprise. Tex. joint enterprise and because (Tex. 2000). In its any of at produce failed least brief, not that Par argue the Church does required one element each claim. The joint in a enter participated ker and Lamb abetting claim aiding and there- funds; rather, to steal the Church’s prise See id. fore likewise fails. and Lamb argues Church joint to conceal enterprise participated court did not We conclude that trial theft the funds. As discussed in granting summary err a no-evidence above, produce failed to Church judgment favor any misrepresentation, fail evidence that for breach of Church’s claims untimely investigate, disclosure ure duty, enterprise, conspiracy, civil damages. proximately not aiding abetting. We need address judgment Parker’s properly granted the trial court whether for Lamb that he worked demonstrated Parker’s traditional attorney, had no Firm a contract Law Martinez, 849; at motion. See account, firm’s authority trust over P. Tex.R.App. see also 47.1. We overrule account, and signatory not a did issue affirm the sole trial not learn theft until the summer of summary judgment. court’s Therefore, if even AFFIRMED. con produced some evidence that damages, proximately caused its duct JOHNSON, J., concurring LEANNE produced no that Parker dissenting. right equal voice or .to control the had an enterprise. per- For all of majority’s opinion I concur in direction reasons, conspiracy aiding the trial court err taining these did civil However, in favor of I abetting. respectfully dissent *8 enterprise joint Church’s of respect the the breach with duty joint claim. and venture claims. considering Lastly, my opinion, address when the aiding abetting. summary light in a judgment claim for evidence and Church’s nonmovant, sum- abetting, plain aiding most favorable to establish defendant, mary in the record judgment must demonstrate evidence be- tiff intent, more scintilla of substantially fore us than a unlawful assisted establishes with wrongdoer genuine on issues of material fact encouraged a in a tortious evidence no-evidence Airington, preclude granting that would a Juhl v. act. Able, (Tex. judgment, genu- creates a Transp. 2000). ine a issue of material fact that would If in joint Parker was a venture preclude granting of a traditional mo- Lamb, with Parker would liable for summary judgment tion for on the funds, damages by Lamb’s of caused theft of Church’s breach even of damages absent evidence caused liability venture claims. specifically by Parker’s actions alone. At minimum, a considering when sum- More specifically, Parker’s admissions as mary judgment in light a most statement, his contained in sworn nonmovant, favorable to the the evidence statements he made in his letter of Octo- genuine raises a fact issue material con- 5, 2011, along ber with other exhibits ref- cerning scope of Parker’s erenced in report Lamb’s PSI and Lamb’s relationship in and whether Parker was a response report, genuine PSI raise joint venture with issues of fact material as whether Par- ker from misappropriation of benefited Furthermore, damages money, Church’s whether party not required for a who has been knowingly or from used benefited the use by attorney’s wronged its fidu- of such whether the Church suf- ciary duty with for request damages fered as a result equitable relief such as disgorgement or wrongful losing by ability conduct an forfeiture, provided party sought such portion recover some of its remedy pleadings. See Burrow v. losing loan, preferential construction Arce, (Tex. 1999). As engaged whether “joint Parker was relief, part requested of its venture” with Lamb. sought not only a of ... misappro- “return Appellee his stated Answer priated funds” but also disgorgement of sole producing/proximate “[t]he cause Original in its fees and Amended Petitions. damages spend- was Lamb Consequently; the Church’s cause action ing In his said 2008 and 2009[.]” equitable for lack relief need fail for statement, sworn re- Parker described his of damages directly proximate- lationship “joint Lamb venturers ly Parker’s breach.1 together.” Parker later stated in his affi- In his October 2001 letter to the support davit that he filed in of his motion he Parker admitted that to the Church lied judgment for summary only that he was possibility and he offered the acting as a lawyer.” “contract con- When repay Lamb Law Firm could flicting inferences be drawn from can from expected profit an Ghana party’s summary judgment “[o]ur affidavit and project[.]” earlier Parker admitted his sworn testimony on a is- sworn material sue, in support statement and his affidavit may fact issue is created defeat his motion judgment. Randall v. Dallas Co., encouraged him to Light Power “Ghana & close the joint enterprise theory they pay of deal” because Under back liability, parties joint enterprise response to a to Par- are Church. agents sümmary of one another ker’s motion for and liable for each raises negligent other’s acts. Tex. Dep’t question regarding a fact whether *9 Answer, circumstances, Second may, Parker's Amended Par- which in certain plead ker does affirmative defense equitable be a defense to relief. estoppel against unclean hands of the profited misappropriation from the or from his decision cover-up, and whether

assist damages to the proximately generally Yap v. ANR

Church. See Inc., 424, 425 Sys.,

Freight Dist.] App.—Houston [1st

writ) (“The cause is proximate question province within particularly

one of fact Tel., Taylor v. Sw. Bell jury[.]”);

of the (Tex.App.—El Paso writ) (discussing the “abundance judg granting summary

of obstacles” issue). is an proximate cause

ment where

Therefore, I would reverse the liability. joint enterprise

duty claim HEALTHCARE

COLUMBIA VALLEY Valley Regional L.P.

SYSTEM d/b/a Center, Appellant,

Medical ZAMARRIPA,

Maria Guardian Rey Ramirez,

Estates Francisco Ramirez, Rammy Minors, Justin

Appellee.

Number 13-14-00696-CV Texas, Appeals

Court

Corpus Christi-Edinburg. 31, 2015. August

Delivered and filed