Richard D. Davis, LLP., a Texas General Partnership, Richard D. Davis, LLP, a Nevada Limited Liability Partnership and Patricia Suarez v. Sky Lakes Flyers Foundation and Carbett J. Duhon, III ( 2019 )

Affirmed and Memorandum Opinion filed March 5, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00372-CV
RICHARD D. DAVIS, LLP., A TEXAS GENERAL PARTNERSHIP,
RICHARD D. DAVIS, LLP, A NEVADA LIMITED LIABILITY
PARTNERSHIP AND PATRICIA SUAREZ, Appellants
V.
SKY LAKES FLYERS FOUNDATION AND CARBETT J. DUHON, III,
Appellees
On Appeal from the 506th Judicial District Court
Waller County, Texas
Trial Court Cause No. 07-08-18999
MEMORANDUM OPINION
This appeal arises from a summary judgment entered April 7, 2017, and is one
of three before this court involving the same parties.1 For the reasons stated below,
1
Before this court is also Appeal No. 14-17-00257-CV, arising from a no-evidence
summary judgment entered January 4, 2017 in the trial court, Cause No. 08-12-19600-A, and
Appeal No. 14-17-00278-CV, arising from a judgment entered January 10, 2017 after a jury verdict
we affirm in part and reverse and remand in part.
BACKGROUND
In 1993, Richard D. Davis, L.L.P., a Texas General Partnership, (“Davis
Texas”) purchased a 55-acre tract from Sky Lakes, Inc., that was secured by a deed
of trust. In 2006, the promissory note was assigned to the Sky Lakes Flyers
Foundation (“SLFF”).2 Shortly thereafter, SLFF sent notices of default based on
various allegations, including failure to provide proof of insurance and payment of
taxes, and the condition of the property. In August 2007, Davis Texas brought this
suit (the “2007 suit”) against SLFF and Carbett J. Duhon, III, seeking a temporary
restraining order, temporary injunction and permanent injunction and asserting a
claim for breach of contract.
In September 2007, SLFF refused Davis Texas’ check for the August 2007
payment on the grounds the note had been accelerated. Davis Texas obtained
injunctive relief to prevent foreclosure and in September 2007 refinanced at an
interest rate of fourteen and a half percent (14.5%) rather than the original rate of
five percent (5%) and transferred its interest in the property to Richard D. Davis,
L.L.P., a Nevada Limited Liability Partnership, (“Davis Nevada”).
On September 19, 2007, SLFF counterclaimed and named Richard D. Davis
and Patricia K. Suarez as third-party defendants. SLFF asserted breach of contract
and sought a non-judicial foreclosure on the property.
Subsequently, suit was brought in 2008 (the “2008 suit”) by Andy Knott, Bill
Green, Dempsey Gearen, Jim Phillips, Phil Birkelbach, Paul Kates, Danny
in the trial court, Cause No. 08-12-19600.
2
This assignment was part of a settlement from a lawsuit brought against Waller Country
Club Estates and George Robinson complaining they had violated a right of first refusal to
purchase the property.
2
Langhorne, Hans van der Voort, Gene Morton and Stanley Hoffpauir (collectively
“the Green Parties”), against Davis Texas, Davis Nevada, and Patricia K. Suarez
(collectively “the Davis Parties”), and Jump Out Express, L.L.C.3 On March 3, 2009,
the Davis Parties moved to consolidate the 2007 suit and the 2008 suit. The Davis
Parties filed a counterclaim and third-party action on March 3, 2009, seeking
damages from the Green Parties, in their individual capacities, for their alleged
orchestration of the “wrongful” acceleration of the note and the ensuing “illegal”
efforts to foreclose. On March 6, 2009, the Davis Parties amended their petition in
the 2007 suit.
By order signed February 4, 2010, the Davis Parties’ counterclaims against
the Green Parties in the 2008 suit were severed (“the 2010 suit”). On April 8, 2010,
the Davis Parties moved to consolidate the 2007 suit, the 2008, and the 2010 suit.
On May 14, 2010, the trial court signed an order denying the motion to consolidate.
On July 15, 2016, The Davis Parties filed another motion to consolidate all three
suits. It was denied by written order on July 22, 2016. The Davis Parties again moved
to consolidate on September 4, 2016.
On December 2, 2016, the Green Parties moved for no-evidence summary
judgment in the 2010 suit. On December 5, 2016, the trial court again denied the
Davis Parties’ motion to consolidate by written order.
Davis Texas, along with Davis Nevada, filed a second amended petition in the
2007 suit on December 19, 2016. A third amended petition was filed January 2,
2017. It sought (1) a temporary injunction and permanent injunction and brought
claims for (2) breach of contract; (3) fraud; (4) tortious interference with contracts
3
The Plaintiffs’ claims against Jump Out Express eventually were settled, and on February
18, 2010, the trial court signed an agreed order severing those claims into Trial Court Cause No.
08-12-019600-B.
3
and business relations and business disparagement; (5) trespass; (6) violation of
automatic stay; (7) conspiracy; (8) economic duress and business coercion; and
(9) violation of the Texas Debt Collection Practices Act.
On January 4, 2017, the trial court granted summary judgment in favor of the
Green Parties in the 2010 suit. The claims that remained in the 2008 suit were tried
to a jury and judgment was entered upon that verdict on January 10, 2017.
On March 8, 2017, SLFF moved for summary judgment in the 2007 suit. A
response was filed and on April 17, 2017, the trial court granted SLFF’s motion in
its’ entirety and dismissed the Davis Parties’ claims with prejudice. From that
judgment, the Davis Parties bring this appeal.
SUMMARY JUDGMENT
In their first issue, the Davis Parties argue the trial court erred when it granted
SLFF’s hybrid no-evidence and traditional motion for summary judgment. SLFF
moved for a no-evidence summary judgment on the Davis Parties’ causes of action
for breach of contract; fraud; tortious interference with contracts and business
relations; business disparagement; violation of automatic stay; conspiracy; wrongful
acceleration; and violation of the Texas Debt Collection Act (“TDCA”). SLFF
moved for a traditional summary judgment on the Davis Parties’ claim for breach of
the note and deed of trust by accelerating the note. SLFF contended economic
coercion and duress is not a cause of action but an affirmative defense. Further, SLFF
asserted the Davis Parties’ claims for injunctive relief were moot and the trespass
claim was tried in the 2008 suit.
The Davis Parties concede that their causes of action for injunctive relief and
trespass were tried in the 2008 suit. Further, the Davis Parties waive any complaint
of the trial court’s ruling as to their claims for tortious interference with contracts,
4
tortious interference with business relations, and business disparagement.
Accordingly, the trial court’s judgment is affirmed as to those claims. After setting
forth the appropriate standard of review, we address each of the remaining claims in
turn.
Standard of Review
“When a party moves for both traditional and no-evidence summary
judgments, we first consider the no-evidence motion.” First United Pentecostal
Church of Beaumont, d/b/a the Anchor of Beaumont v. Parker, 514 S.W.3d 214, 219
(Tex. 2017) (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)).
“If the non-movant fails to meet its burden under the no-evidence motion, there is
no need to address the challenge to the traditional motion as it necessarily fails.” Id.
(citing Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)). “Thus,
we first review each claim under the no-evidence standard.” Id. Any claims that
survive the no-evidence review will then be reviewed under the traditional standard.
Id. at 219–220.
“To defeat a no-evidence motion, the non-movant must produce evidence
raising a genuine issue of material fact as to the challenged elements.” Parker, 514
S.W.3d at 220 (citing Ridgway, 135 S.W.3d at 600). A party moving for traditional
summary judgment meets its burden by proving that there is no genuine issue of
material fact and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).
“A genuine issue of material fact exists if the evidence rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions.” Parker, 514
S.W.3d at 220 (internal quotations omitted). The evidence does not create an issue
of material fact if it is “so weak as to do no more than create a mere surmise or
suspicion” that the fact exists. Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex.
2014) (quoting Ridgway, 135 S.W.3d at 601).
5
Breach of Contract
The Davis Parties pled a cause of action for breach of contract claiming SLFF
breached the deed of trust and the promissory note. A breach of contract claim
requires: (1) the existence of a valid contract, (2) performance or tendered
performance by the plaintiff, (3) breach of the contract by the defendant, and
(4) damages sustained by the plaintiff because of the breach. See Mays v. Pierce,
203 S.W.3d 564, 575 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).
Considering SLFF’s motion in its entirety, the trial court could have granted
summary judgment against the Davis Parties on the following grounds:
 Davis Nevada lacked standing to maintain a breach of contract action
because only Davis Texas had a contract with SLFF;
 There was no evidence of two elements of a breach of contract claim,
specifically breach and damages; or
 SLFF established as a matter of law that the Davis Parties failed to
comply with the deed of trust, entitling SLFF to accelerate the note.
We first address standing. In their response, the Davis Parties asserted Davis
Nevada had standing. However, in their opening brief on appeal, the Davis Parties
fail to argue that the trial court could not have granted summary judgment based on
standing.4 When a movant asserts multiple grounds for summary judgment and the
trial court does not specify in the order the ground on which summary judgment was
granted, an appellant must negate all grounds on appeal. Heritage Gulf Coast Props.,
Ltd. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 653 (Tex. App.—Houston
[14th Dist.] 2013, no pet.) (citing Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 473
(Tex. 1995)). If an appellant does not challenge all grounds on which the judgment
4
In their brief, SLFF argues we should affirm the trial court’s judgment as to the breach of
contract claim on the basis that Davis Nevada lacked standing. In their reply brief, the Davis Parties
do not counter that argument.
6
may have been granted, we must uphold the summary judgment. Id. Accordingly,
we affirm the trial court’s judgment insofar as it grants SLFF’s motion for summary
judgment on the breach of contract claim as to Davis Nevada.
Next, we address whether the trial court could have granted a no-evidence
summary judgment on the element of damages. In their response to the motion’s
claim that there was no evidence of damages, the Davis Parties asserted that Davis
Texas was forced to pay off its’ original note at 5% interest and refinance at 14.25%
interest because SLFF wrongfully accelerated the note. As evidence of damages, the
Davis Parties referred to Suarez’s declaration, with exhibits. On appeal, the Davis
Parties again refer this court to Suarez’s declaration. According to Suarez, the Davis
Parties refinanced the note at the higher interest rate solely because SLFF wrongfully
accelerated the note. Suarez alleged damages from having to refinance in the
amounts of $66,000 for total lost equity, and $136,000 in additional interest to be
paid. We therefore conclude the Davis Parties presented to the trial court more than
a scintilla of evidence regarding the element of damages. See Cura-Cruz v.
CenterPoint Energy Houston Elec., LLC, 522 S.W.3d 565, 575 (Tex. App.—
Houston [14th Dist.] 2017, pet. denied).5 Accordingly, we determine the trial court
could not have properly granted summary judgment on that basis.
Finally, we determine whether the trial court could have granted summary
judgment on the element of breach. The basis of the Davis Parties’ claim of breach
is that SLFF wrongfully accelerated the note.6 In their motion, SLFF contended there
5
In their brief, SLFF does not assert the Davis Parties failed to meet their burden to raise
a genuine issue of material fact as to the element of damages.
6
Because the Davis Parties did not plead wrongful acceleration as a separate cause of
action, we do not address it as such. It will be addressed regarding the question of whether the trial
court erred in granting summary judgment on the claim for breach of contract.
7
is no evidence of breach. SLFF then moved for a traditional summary judgment
because the Davis Parties’ failure to comply with the Deed of Trust gave SLFF the
right to accelerate the note. In response, the Davis Parties claimed there was evidence
the acceleration was wrongful and thereby a breach of contract.
The Note in question provides:
“[I]n case of failure to comply with any of the agreements or conditions
of the Deed of Trust or other security given to secure this Note, then, at
the election of the legal holder hereof, the unpaid balance of the
principal sum expressed in this Note, with all accrued interest, may by
said holder be declared immediately due, without notice, and may be
collected forthwith by sale under said Deed of Trust or otherwise, as
such holder may elect.
According to SLFF’s motion, the Davis Parties failed to comply with the following
conditions of the Deed of Trust:
2. Pay all taxes and assessments on the property when due and provide
Beneficiary, by January 15 of each year, proof of payment of all such
taxes and assessments;
...
4. maintain, in a form acceptable to Beneficiary, an insurance policy
that:
a. covers club house for its full insurable value as determined
when the policy is issued and renewed, unless Beneficiary
approves a smaller amount in writing;
b. provides fire and extended coverage, including windstorm
coverage;
c. protects Beneficiary with a standard mortgage clause;
5. deliver the Insurance policy to Beneficiary and deliver renewals to
Beneficiary at least ten days before expiration . . ..
We first determine if SLFF met its burden for traditional summary judgment by
proving there is no genuine issue of material fact as to whether SLFF had a right to
8
accelerate the note based on failure to insure the property and was therefore entitled
to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Parker, 514 S.W.3d at
220. Attached to SLFF’s motion is the affidavit of Paul Kates, the promissory note,
and a copy of an insurance policy issued on July 30, 2007, for the period from July
6, 2007, to July 7, 2008. Kates’ affidavit avers, “[t]he property was uninsured. . .
[A]n insurance policy wasn’t even issued until July 30, 2007. . . “[T]he property had
been uninsured for an unknown period of time.”
In their response, the Davis Parties alleged Kates “falsely stated in his
affidavit that insurance was not procured on the airport property before July 30,
2007.” This is a mischaracterization. Kates stated the policy did not issue until July
30, 2007, and the policy provides “ISSUE DATE: 07-30-07.” The Davis Parties did
not refer to any evidence that the property was insured before July 6, 2007. In fact,
the record reflects Richard Davis admitted the property had been uninsured since
sometime in 1997.
In their response to the motion for summary judgment, the Davis Parties also
stated:
The certificate of insurance was procured by July 6, 2007 and
reflected coverage from July 6, 2007 to July 6, 2008. As RD Davis
explained in his Fax Letter to Duhon[,] Sky Lakes predecessor Waller
Country Club Estates had not enforced the insurance clause of the Deed
of Trust and Davis Texas needed a reasonable time to procure
insurance. Davis Texas procured insurance in a reasonable time from
May 11, 2007 and nineteen days was an unreasonable time within
which to cure all the alleged defaults.[7]
There are no references to any evidence supporting these claims.
7
The record reflects notice of default was given on May 11, 2007 and provided a period in
which to cure, until June 1, 2007.
9
In response to either a no-evidence or traditional motion for summary
judgment the non-movant “must specifically identify the supporting proof on file
that it seeks to have considered by the trial court.” See Bich Ngoc Nguyen v. Allstate
Ins. Co., 404 S.W.3d 770, 776–77 (Tex. App.—Dallas 2013, pet. denied) (quoting
Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.—San Antonio 2006, no
pet.)). Neither the trial court nor this court is required to search for summary
judgment evidence raising a genuine issue of material fact without more specific
guidance from the non-movant. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76,
81 (Tex. 1989); see also Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333
S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (op. on reh’g);
Aguilar v. Morales, 162 S.W.3d 825, 838 (Tex. App.—El Paso 2005, pet. denied);
Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex. App.—Fort Worth 2004, pet. denied).
SLFF produced uncontested summary-judgment evidence that the property
was uninsured, in violation of the terms of the note, for approximately ten years. The
express terms of the deed allowed SLFF to accelerate the note, without notice, on
that basis. In response, the Davis Parties failed to identify any evidence raising a
genuine issue of material fact that SLFF did not have the right to accelerate the note.8
Accordingly, the trial court did not err in granting summary judgment in favor of
SLFF on the Davis Parties’ cause of action for breach of contract on that basis.9
8
We do not address the additional arguments against granting summary judgment on this
cause of action that are included in the Davis Parties’ brief. The law is well-settled that we may
not affirm or reverse a summary judgment on a ground not presented to the trial court. Stiles v.
Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993); Travis v. City of Mesquite, 830 S.W.2d
94, 99–100 (Tex. 1992); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 677 (Tex.
1979).
9
It is therefore unnecessary to address SLFF’s other reason(s) for accelerating the note.
10
Fraud
The Davis Parties pled a cause of action for fraud alleging SLFF’s claims for
attorney’s fees, maintenance fees, trustee’s fees, and costs were fraudulent. To
prevail on a fraud claim, a plaintiff must show: (1) the defendant made a material
representation that was false; (2) the defendant knew the representation was false or
made it recklessly as a positive assertion without any knowledge of its truth; (3) the
defendant intended to induce the plaintiff to act upon the representation; and (4) the
plaintiff actually and justifiably relied upon the representation and suffered injury as
a result. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648,
653 (Tex. 2018). In their motion for summary judgment, SLFF asserted the Davis
Parties had no evidence of any of these elements. In their response, the Davis Parties’
single reference was “See Dec. JAI; Dec KS.”
The declarations of Izen and Suarez, with exhibits, are 174 pages. Blanket
citation to such 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.) (citing Kashif Bros., Inc. v. Diamond Shamrock Ref. & Mktg. Co.,
No. 14-01-00202-CV, 2002 WL 1954852, at *3-5 (Tex. App.—Houston [14th Dist.]
August 22, 2002, pet. denied); Guthrie v. Suiter, 934 S.W.2d 820, 825-26 (Tex.
App.–Houston [1st Dist.] 1996, no writ)). The single reference does not direct the
trial court and the parties to the evidence on which the Davis Parties rely. See
Kastner v. Gutter Mgmt. Inc., 14-09-00055-CV, 2010 WL 4457461, at *8 (Tex.
App.—Houston [14th Dist.] Nov. 4, 2010, pet. denied) (holding non-specific
references within the voluminous summary-judgment record were insufficient). The
general citation was insufficient to apprise the trial court of the evidence on which
the Davis Parties relied to support each element of their fraud claim. See Leffler v.
11
JP Morgan Chase Bank, N.A., 290 S.W.3d 384, 387 (Tex. App.—El Paso 2009, no
pet.); see also Judson 88 Partners v. Plunkett & Gibson, Inc., No. 14-99-00287-CV,
2000 WL 977402, at *3 (Tex. App.—Houston [14th Dist.] May 18, 2000, no pet.)
(not designated for publication). Consequently, the trial court did not err in granting
summary judgment on the fraud claim.
Violation of Automatic Stay
The Davis Parties’ alleged a cause of action for violating the automatic stay
imposed by section 362 of the Bankruptcy Code. See 11 U.S.C. § 362; Tex. Prop.
Code § 51.007. The Davis Parties claimed SLFF violated the prohibition against
taking any action against a debtor’s property for ten days after final judgment
dismissing a Chapter 11 proceeding. See 11 U.S.C. § 362.
In their motion for summary judgment, SLFF asserted there was no evidence
that any defendant took any prohibited action against the property. In their response
to the motion, the Davis Parties asserted SLFF posted illegal notices of a trustee’s
sale while the automatic stay was in effect.
SLFF first noticed a trustee’s sale on May 11, 2007. The date of the sale was
set for June 5, 2007. The day before, on June 4, 2007, Davis Texas filed for Chapter
11 bankruptcy. Thereafter, on June 12, 2007, July 13, 2007, and August 14, 2007,
SLFF again noticed the sale. The bankruptcy case was dismissed on August 20,
2007.
Under section 362(c)(2) of the Bankruptcy Code, the automatic stay
terminates upon the earlier of the time the case is closed, the time the case is
dismissed, or the time a discharge is granted or denied. See 11 U.S.C. § 362(c)(2).
Accordingly, the stay was in effect until August 20, 2007.
12
On appeal, the Davis Parties refer this court to section 362 of the Bankruptcy
code as well as evidence that SLFF noticed the sale three times between June 4, 2007
and August 20, 2007.10 SLFF does not contest this evidence but contends that
rescheduling the trustee’s sale while the bankruptcy proceeding was pending is not
“an act against property of the estate” in violation of the automatic stay. See 11
U.S.C. § 362(c)(1).
As recognized by the court in In re Roach, 660 F.2d 1316, 1319 (9th Cir.
1981), “the automatic stay does not necessarily prevent all activity outside the
bankruptcy forum.” The purpose of the automatic stay is “to stop all collection
efforts, harassment and foreclosure actions.” Id. at 1318. Notices which specify a
new date of sale merely maintain the status quo and are thereby consistent with the
purpose of section 362(c)(2). Id. at 1319. Accordingly, the Davis Parties’ evidence
of the postponement notices failed to raise a genuine issue of material fact that SLFF
took an act against the property in violation of the automatic stay. Id.; see also In re
Peters, 101 F.3d 618, 620 (9th Cir. 1996); In re Anderson, 195 B.R. 87, 90 (9th Cir.
B.A.P. 1996); In re De Jesus Saez, 721 F.2d 848, 853 (1st Cir. 1983). We therefore
conclude the trial court did not err in granting summary judgment on that cause of
action.
Violation of the Texas Debt Collection Act
The Davis Parties alleged that SLFF violated the TDCA. SLFF moved for
summary judgment claiming the TDCA only covers “consumer debt” and the Davis
10
In their reply brief, the Davis Parties complain SLFF “does not even address SLFF’s
efforts to accelerate the payment of the promissory note while Davis Texas was in Chapter 11
bankruptcy.” We do not address this complaint because the Rules of Appellate Procedure do not
allow an appellant to include in a reply brief a new issue not raised by its original brief. See Tex.
R. App. P. 38.3.
13
Parties have no evidence the debt in question was a consumer debt.11 In their
response, the Davis Parties asserted the Davis Texas partners are individuals who
may be consumers and the purchase of an airport can be a consumer transaction.
On appeal, the Davis Parties do not cite any authority in support of the claim
they made in their response to the motion for summary judgment. It is not our duty
to review the record, research the law, and then fashion a legal argument when a
party has failed to do so. Canton–Carter v. Baylor Coll. of Med., 271 S.W.3d 928,
931–32 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Briefing waiver occurs
when a party fails to make proper citations to authority or to the record, or to provide
any substantive legal analysis. See Tex. R. App. P. 38.1(i); Canton–Carter, 271
S.W.3d at 931; Sterling v. Alexander, 99 S.W.3d 793, 798–99 (Tex. App.—Houston
[14th Dist.] 2003, pet. denied). Even though the courts are to interpret briefing
requirements reasonably and liberally, parties asserting error on appeal still must put
forth some specific argument and analysis citing the record and authorities in support
of their argument. San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex.
App.—Houston [14th Dist.] 2005, no pet.). Accordingly, the issue is waived due to
inadequate briefing.12
Economic Coercion and Duress
In their no-evidence motion for summary judgment, SLFF asserted that
economic coercion and duress “is not a cause of action. It is an affirmative defense.
11
Consumer debt is defined as “an obligation, or an alleged obligation, primarily for
personal, family, or household purposes and arising from a transaction or alleged transaction.”
Tex. Fin. Code § 392.001(2).
12
We do not address the additional arguments against granting summary judgment on this
cause of action that are included in the Davis Parties’ brief. The law is well-settled that we may
not affirm or reverse a summary judgment on a ground not presented to the trial court. Stiles, 867
S.W.2d at 26 (Tex. 1993); Travis, 830 S.W.2d at 99–100; Clear Creek Basin Auth., 589 S.W.2d at
677.
14
See TRCP 94.” As recognized by this court in Duradril, L.L.C. v. Dynomax Drilling
Tools, Inc., 516 S.W.3d 147, 169 (Tex. App.—Houston [14th Dist.] 2017, no pet.),
the elements of economic duress or business coercion are:
(1) the defendant threatened to do some act that it had no legal right to
do; (2) the threat was of such a character as to destroy the plaintiff’s
free agency; (3) the threat overcame the plaintiff’s free will and caused
it to do what it otherwise would not have done and that it was not legally
bound to do; (4) the restraint was imminent; and (5) the plaintiff had no
means of protection. See In re Frank Motor Co., 361 S.W.3d 628, 632
(Tex. 2012) (citing Flameout Design & Fabrication, Inc. v. Pennzoil
Caspian Corp., 994 S.W.2d 830, 837 (Tex. App.–Houston [1st Dist.]
1999, no pet.)).
SLFF’s motion did not state any of these elements or claim that the Davis
Parties had no evidence as to any of them. A no-evidence motion for summary
judgment “must state the elements as to which there is no evidence.” Tex. R. Civ. P.
166a(i). Further, a no-evidence motion “must be specific in challenging the
evidentiary support for an element of a claim” and “conclusory motions or general
no-evidence challenges to an opponent’s case” are insufficient. Tex. R. Civ. P.
166a(i) cmt. See Wyly v. Integrity Ins. Sols., 502 S.W.3d 901, 907 (Tex. App.—
Houston [14th Dist.] 2016, no pet.). Generally, because SLFF’s motion did not assert
there was no evidence of any of the elements of the Davis Parties’ causes of action
for economic duress or coercion, they were not entitled to summary judgment on
those claims. See Wilson v. Davis, 305 S.W.3d 57, 73 (Tex. App.—Houston [1st
Dist.] 2009, no pet.). SLFF argues that even if economic duress or coercion are
affirmative claims for relief, the trial court’s summary judgment was proper because
the claims are derivative of the wrongful acceleration claim.
There is a very limited exception to the general rule that summary judgments
may only be granted upon grounds expressly asserted in the summary judgment
15
motion. Tex. R. Civ. P. 166a(c); G & H Towing Co. v. Magee, 347 S.W.3d 293, 297
(Tex. 2011). This exception has been applied when the omitted ground was
intertwined with, and precluded by, a ground addressed in the motion. G & H Towing
Co., 347 S.W.3d at 297. The exception arises when the defendant has conclusively
disproved an ultimate fact or element which is common to all causes of action
alleged, or the unaddressed causes of action are derivative of the addressed cause of
action. Id
As noted above, the first element of a claim for economic duress or business
coercion is that the defendant threatened to do some act that it had no legal right to
do. See Duradril, 516 S.W.3d at 169. The “act” alleged by the Davis Parties in this
case was the wrongful acceleration of the note.
We have already determined the trial court did not err in granting summary
judgment on the breach of contract claim because SLFF established as a matter of
law that the Davis Parties failed to comply with the deed of trust, entitling SLFF to
accelerate the note. Because SLFF has conclusively disproved an element common
to both causes of action alleged, i.e., the wrongful acceleration of the note, any error
in granting summary judgment on the claim for economic coercion and duress is
harmless. See G & H Towing Co., 347 S.W.3d at 297. Accordingly, the Davis
Parties’ first issue is overruled as to their cause of action for economic coercion and
duress.
Conspiracy
Civil conspiracy, generally defined as a combination of two or more persons
to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful
means, is a “derivative” tort, meaning a defendant’s liability for conspiracy depends
on participation in some underlying tort for which the plaintiff seeks to hold at least
16
one of the named defendants liable. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.
1996). As a result, we do not analyze the trial court’s judgment regarding the Davis
Parties’ cause of action for conspiracy separately from its’ judgment as to the other
causes of action. See id. If the trial court did not abuse its discretion in granting
summary judgment on all of the claims which are alleged to have arisen from the
conspiracy, then, a priori, it did not abuse its discretion in granting summary
judgment on the claim of conspiracy. Id.
As relevant to this case, the Davis Parties’ counterclaim for conspiracy was
based upon the underlying torts discussed above.13 Because the trial court did not err
in granting summary judgment on any of those claims, we conclude the trial court
did not abuse its discretion in granting summary judgment on the Davis Parties’
claim of conspiracy. We therefore overrule the Davis Parties’ first issue as to that
claim.
MOTION TO DISMISS
The second issue raised by the Davis Parties is that the trial court erred when
it granted, without prejudice, Duhon’s motion to dismiss their cause of action for
violation of the automatic stay imposed by section 362 of the Bankruptcy Code. See
11 U.S.C. § 362. The record reflects that on May 23, 2010, the trial court dismissed
Duhon from the suit pursuant to section 51.007 of the Texas Property Code. See Tex.
Prop. Code § 51.007.14 The Davis Parties concede that Duhon was acting in his
capacity as trustee. Their argument is that Duhon was not entitled to dismissal under
13
As relevant to this case, the Davis Parties alleged there was a conspiracy to commit fraud,
breach of contract, economic coercion and duress, and violation of the Texas Debt Collection Act.
14
Section 51.007 provides, in pertinent part, “[t[he trustee named in a suit or proceeding
may plead in the answer that the trustee is not a necessary party by a verified denial stating the
basis for the trustee's reasonable belief that the trustee was named as a party solely in the capacity
as a trustee under a deed of trust, contract lien, or security instrument.” Tex. Prop. Code
§ 51.007(a).
17
the doctrine of preemption. The Davis Parties contend “[t]he defenses provided by
the Texas Legislature under § 51.007 are preempted by the clear wording and intent
of 11 U.S.C.’s § 362 which provides for the imposition of actual and punitive
damages against violators.”
We have already concluded the trial court did not err in granting SLFF’s no-
evidence summary judgment on the Davis Parties’ claim for violation of the
automatic stay. Accordingly, any determination on whether the preemption doctrine
prohibits Duhon’s dismissal from the suit would be advisory. We therefore overrule
issue two.
MOTION TO CONSOLIDATE
In their third and final issue, the Davis Parties contend the trial court erred by
denying their motion to consolidate and join necessary parties. As noted above,
multiple motions to consolidate were filed and denied. On appeal, it is the failure to
consolidate the 2010 suit with this suit that is alleged to constitute an abuse of
discretion.
Although the Davis Parties discuss the purported error in their brief, they have
failed to provide any substantive analysis as to how they were harmed by the trial
court’s alleged error. See Tex. R. App. P. 44.1(a); Fuhrmann v. C & J Gray Invs.
Partners, Ltd., No. 05-15-01387-CV, 2016 WL 7217252, at *6 (Tex. App.—Dallas
Dec. 13, 2016, pet. denied) (mem. op.). Harm must be shown before we can reverse
a judgment. See Tex. R. App. P. 44.1(a) (stating that no judgment may be reversed
on appeal on the basis that the trial court erred unless the court of appeals concludes
that the error complained of probably caused the rendition of an improper judgment
or probably prevented the appellant from properly presenting the case).
18
Furthermore, the burden to show harm in a civil appeal lies with the appellant
and should he fail to address the topic, he has waived his complaint. See Mullendore
v. Muehlstein, 441 S.W.3d 426, 429–30 (Tex. App.—El Paso 2014, pet. abated)
(holding appellant waived the issue because he failed to brief how the error caused
rendition of an improper verdict); In re K.C.R.T., No. 02-10-00425-CV, 2011 WL
3426258, at *7 (Tex. App.—Fort Worth Aug. 4, 2011, no pet.) (mem. op.) (declining
to address complaint that trial court abused its discretion by proceeding with a bench
trial because appellant did not assert any argument, analysis, or reference that the
abuse of discretion constituted reversible error); In re Marriage of Scott, 117 S.W.3d
580, 584 (Tex. App.—Amarillo 2003, no pet.) (stating that the burden lies with an
appellant to establish that the purported error caused rendition of an improper
judgment). The Davis Parties have failed to carry their burden on appeal to explain
how and why the supposed error probably caused the rendition of an improper
judgment or prevented them from properly presenting their case. Accordingly, the
Davis Parties waived this issue due to inadequate briefing. See Tex. R. App. P.
38.1(i); Fuhrmann, 2016 WL 7217252, at *6. We resolve the Davis Parties’ final
issue against them.
CONCLUSION
The judgment of the trial court is affirmed.
/s/ Margaret "Meg" Poissant
Justice
Panel consists of Justices Wise, Hassan and Poissant.
19