Preston Marshall v. Ribosome, L.P. ( 2019 )

Opinion issued May 9, 2019
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-18-00108-CV
———————————
PRESTON MARSHALL, Appellant
V.
RIBOSOME L.P., Appellee
On Appeal from the 270th District Court
Harris County, Texas
Trial Court Case No. 2015-30009
MEMORANDUM OPINION
Preston Marshall, a limited partner of Ribosome, L.P. and a beneficiary of two
trusts which are also limited partners, was joined in an interpleader action brought
by Frost Bank involving Preston’s challenge to the ownership of funds held in a
Ribosome bank account. In that action, Preston brought cross-claims against
Ribosome for (1) aiding and abetting in a breach of fiduciary duty committed by the
trustee over the limited partner trusts, (2) breach of an oral agreement that Ribosome
would distribute the portion of profits it owed to the trusts directly to Preston as their
ultimate beneficiary, or alternatively, (3) promissory estoppel, and (4) an accounting
based on allegations that Ribosome miscalculated distributions.
Ribosome moved for summary judgment on Preston’s claims for aiding and
abetting breach of fiduciary duty, breach of contract, and promissory estoppel claims
and, in a second motion, on his accounting claim. The trial court granted both
motions. On appeal, Preston contends that the trial court erred in granting summary
judgment because fact issues remain on whether (1) the breaches of fiduciary duty
underlying the aiding and abetting claim occurred and caused harm to Preston;
(2) the profit distribution agreement was too indefinite to enforce or terminable at
will; (3) Ribosome is estopped from denying the distribution agreement; and
(4) challenges to Ribosome’s distribution calculations require an accounting.
Finding no error, we affirm.
BACKGROUND
This dispute involves the descendants of Texas oilman J. Howard Marshall II.
The Marshall family, one of the wealthiest in the country, manages its wealth
through a network of partnerships, trusts, and other entities, many of which are
located outside the United States. Elaine Marshall, Preston’s mother, has played
2
instrumental roles in the entities involved in this dispute. MarOpCo, a management
company, provides administrative services, including accounting, bookkeeping,
record maintenance, and tax preparation, for the Marshall entities.
Ribosome, a limited partnership organized under the laws of the British Virgin
Islands, is one of those entities. Its holdings consist of shares of non-voting stock of
a trust that holds equity in Koch Industries, Inc. and Koch Holdings, LLC. Elaine
serves as sole manager of Ribosome’s general partner, Tanzanite Trading, LLC.
Ribosome has eighteen limited partners that own units of one or more of Ribosome’s
seven classes of membership. Preston and his brother are limited partners, as are a
number of family-owned entities and trusts. The Falcon Trust and the Harrier Trust,
which Preston’s parents created in 2006 for the benefit of Preston and his children,
are also limited partners in Ribosome.
During most of the time pertinent to this appeal, Elaine was Trustee of the
Harrier Trust and the Falcon Trust. Preston is both the income and principal
beneficiary of the Harrier Trust. The Falcon Trust names Preston as the income
beneficiary and his children as the principal beneficiaries. As to income distribution,
the Trusts provide that
[t]he Trustee in her sole discretion may accumulate or distribute income
accruing for the benefit of the beneficiary(ies) until expiration of the
trust. The Trustee shall have discretion in determining the time or
frequency of any distributions.
3
Both Trusts give the trustee “the sole discretion to determine the manner, time,
circumstances and conditions of the exercise of any right, power or authority vested
in the Trustee.”1 The Marshalls created similar trusts to benefit their son, Pierce, Jr.,
and his children at or near the same time they made the Harrier and Falcon trusts.
Through MarOpCo, Ribosome periodically distributes dividends to its limited
partners in an amount corresponding to the interest that each limited partner holds.
As limited partners, Preston and the Trusts are entitled to receive dividends from
Ribosome. The value of Preston’s individual interest in Ribosome is relatively small.
The trusts, though, own substantial interests in Ribosome, giving Preston a
significant beneficial interest in Ribosome’s distributions.
In 2006, Elaine, the President of MarOpCo, hired Preston to serve as its Vice
President. In a 2007 family meeting, Preston, his brother, Pierce, Jr., and Elaine
entered into an oral agreement, under which Ribosome would bypass the Trusts and
pay the Trusts’ shares directly to Preston as their beneficiary.2 Preston and
1
While this case was pending in the trial court, Elaine stepped down from her position
as Trustee of the Falcon Trust. The Trust instrument empowered her “to select and
designate one or more disinterested individuals to serve as: co-trustee, and may
designate her successor should she cease or otherwise fail to serve as Trustee for
any reason whatsoever.” She exercised that power to appoint five successor co-
trustees for the Falcon Trust.
2
Although the parties dispute some of these facts, we consider the record in the light
most favorable to Preston, the nonmovant. See Johnson v. Brewer & Pritchard,
P.C., 73 S.W.3d 193, 197 (Tex. 2002).
4
MarOpCo’s then-controller implemented this distribution agreement, and it
remained in place through June 2015, when Elaine terminated Preston’s
employment.
Shortly thereafter, Elaine ended the distribution agreement. As Trustee of the
Harrier and Falcon Trusts, Elaine signed writings revoking “all previous decisions
permitting Ribosome, L.P., to make distributions directly to the beneficiary” and
resolving that all future Ribosome distributions to the Trusts be made by cash
transfer to the Trusts’ bank accounts. Since then, the Trusts have accumulated
income, but Preston has not received any distributions from them. At the same time,
Preston’s brother, Pierce Jr., has continued to receive distributions from the similar
trusts created for his and his family’s benefit.
In June 2015, Preston sued MarOpCo for wrongful termination and
conversion of personal property he allegedly was prevented from removing from its
premises. Elaine admitted withholding distributions from Preston because she was
“distressed” at the lawsuits he had initiated since she fired him from MarOpCo.
Later in 2015, Elaine, on behalf of Ribosome’s general partner, asked Frost
Bank to close a Ribosome account and have the funds transferred to a bank in Dallas.
Preston challenged the transfer, and Frost Bank brought an interpleader action to
resolve the competing claims. Several months later, when the interpleader was close
to resolution, Preston brought cross-claims against Ribosome for breach of the 2007
5
oral agreement, promissory estoppel, and aiding and abetting breach of fiduciary
duty arising out of its return to the practice of paying distributions owed to the Trusts
directly to the Trusts’ bank accounts. Preston also sought an accounting to correct
Ribosome’s purported miscalculations of distributions.
DISCUSSION
The trial court granted Ribosome summary judgment on Preston’s claims that
Ribosome (1) aided and abetted in breaches of the fiduciary duty that Elaine owed
the Harrier and Falcon Trusts as their Trustee; (2) failed to comply with an oral
agreement that Ribosome distribute the share of profits belonging to the Trusts
directly to Preston as their beneficiary, or alternatively, (3) was estopped from
changing the direct distribution practice. The trial court also granted Ribosome
summary judgment on Preston’s claim for a common-law accounting. Preston
challenges these rulings.
I. Summary-Judgment Standard of Review
We review de novo a trial court’s summary-judgment ruling. Travelers Ins.
Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Ribosome moved for summary
judgment on both traditional and no-evidence grounds. See TEX. R. CIV. P. 166a(c),
(i). To prevail on summary judgment based on traditional grounds, the movant bears
the burden of proving that no genuine issue of material fact exists and that he is
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entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort
Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
A matter is conclusively established if reasonable people could not differ as to the
conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d
802, 816 (Tex. 2005). If the movant meets this burden, the burden then shifts to the
nonmovant to raise a genuine issue of material fact precluding summary judgment.
See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); see also
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per
curiam) (explaining that summary-judgment evidence raises fact question if
reasonable and fair-minded jurors could differ in their conclusions in light of all
evidence presented).
To determine whether a fact issue exists, we review the evidence in the light
most favorable to the nonmovant, crediting favorable evidence if reasonable jurors
could and disregarding contrary evidence unless reasonable jurors could not.
Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827). We indulge
every reasonable inference and resolve any doubts in the nonmovant’s favor. Sw.
Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing Sci. Spectrum,
Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997), and Friendswood Dev. Co. v.
McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996)).
7
Ribosome’s motions for summary judgment sought dismissal on traditional
grounds as to some claims and on no-evidence grounds as to others. A trial court
must grant a no-evidence motion for summary judgment if the movant asserts that
there is no evidence of one or more specified elements of a claim or defense on
which the nonmovant would have the burden of proof at trial and if the nonmovant
produces no summary-judgment evidence raising a genuine issue of material fact on
each of the challenged elements. TEX. R. CIV. P. 166a(i); Lockett v. HB Zachry Co.,
285 S.W.3d 63, 67 (Tex. App.—Houston [1st Dist.] 2009, no pet.); see Fort Worth
Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). A genuine issue
of material fact exists if the nonmovant produces more than a scintilla of evidence
establishing the existence of the challenged elements. Ford Motor Co. v. Ridgway,
135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists if the
evidence would allow reasonable and fair-minded people to differ in their
conclusions. City of Keller, 168 S.W.3d at 827; see Mayes, 236 S.W.3d at 755. If the
nonmovant fails to produce more than a scintilla of evidence under that burden, there
is no need to analyze whether the movant’s proof satisfies the rule 166a(c) burden.
Ford Motor Co., 135 S.W.3d at 600.
II. Claims Based on the Distribution Agreement
Preston contends that trial court erred in granting summary judgment on his
claims against Ribosome for breach of contract, promissory estoppel, and aiding and
8
abetting a breach of fiduciary duty, all of which arise out of the termination of
Ribosome’s purported agreement to make distributions owed to the Harrier and
Falcon Trusts as its limited partners directly to Preston as the Trusts’ ultimate
beneficiary.
A. Breach of contract
Preston argues that the summary-judgment evidence raises genuine issues of
material fact concerning whether Ribosome breached the distribution agreement.
Parties form a binding contract when the following elements are present: (1) an offer,
(2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of
the minds, (4) each party’s consent to the terms, and (5) execution and delivery of
the contract with the intent that it be mutual and binding. Porter-Garcia v. Travis
Law Firm, 564 S.W.3d 75, 87 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).
An enforceable and legally binding contract is formed if it is sufficiently definite in
its essential terms. See Winchek v. Am. Express Travel Related Servs. Co., 232
S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Essential terms are
“those terms that the parties ‘would reasonably regard as vitally important elements
of their bargain.’” Gen. Metal Fabricating Corp. v. Stergiou, 438 S.W.3d 737, 744
(Tex. App.—Houston [1st Dist.] 2014, no pet.) (quoting Potcinske v. McDonald
Prop. Invs., Ltd., 245 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2007, no
pet.)).
9
It is undisputed that the parties did not set a duration for the distribution
modification when they allegedly agreed to it. When duration is essential to
performance, the lack of a definite time may render an agreement unenforceable. See
Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 486 (Tex. App.—Houston [1st Dist.]
2006, pet. denied). Under some circumstances, however, Texas courts have
concluded that the lack of a duration term does not make an agreement
unenforceable, observing that the law may imply a reasonable duration if the
contract is definite enough that the court may fix the time for performance. See id.
(citing Moore v. Dilworth, 179 S.W.2d 940, 942 (Tex. 1944), and Avila v. Gonzalez,
974 S.W.2d 237, 244 (Tex. App.—San Antonio 1998, pet. denied)). Further, Texas
courts have long considered contracts that contemplate continuing performances and
are indefinite in duration—for example, a lease or an employment agreement—as
terminable at will. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d
831, 841 (Tex. 2000) (quoting Clear Lake City Water Auth. v. Clear Lake Utils. Co.,
549 S.W.2d 385, 390 (Tex. 1977)).3
3
Preston argues that cases involving employment contracts are distinguishable
because employment contracts are presumptively at will. The application of an at-
will presumption in the context of employment agreements, despite having a
different subject matter, has nothing to do with whether an agreement like the one
alleged here is terminable at will because it has features that Texas courts have
recognized as manifesting an intent that the agreement can be terminated at any time
for any reason.
10
Based on Ribosome’s history of making periodic distributions pursuant to its
partnership agreement and its past performance, we interpret the oral distribution
agreement as contemplating that Ribosome would perform by making periodic
distributions directly to Preston of the profits that otherwise would have gone to the
Trusts, according to the same schedule used for making distributions to all of the
limited partners. As a contract of indefinite duration that contemplated continuing
or successive performance, it was terminable at the will of either party. See Clear
Lake, 549 S.W.2d at 390; Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 678
(Tex. App.—Houston [1st Dist.] 1996, no writ) (stating, as ground alternate to
holding that contract was too indefinite for enforcement, that contract was
terminable at will); Tracy v. Annie’s Attic, Inc., 840 S.W.2d 527, 538–39 (Tex.
App.—Tyler 1992, writ denied) (agreement between retail business consultant and
corporation that provided “this is an everlasting agreement,” and contemplated
continuing performance could be terminated at will of either party).4
4
Preston attempts to distinguish Tracy v. Annie’s Attic, Inc., 840 S.W.2d 527 (Tex.
App.—Tyler 1992. writ denied), based on the contract’s subject matter and pointing
out that in this case, the distribution agreement’s existence depends on the existence
of the limited partner entities. He does not, however, point to any evidence showing
that the entities will cease to exist on a date certain or other evidence that the contract
is not of an indefinite duration.
11
B. Promissory estoppel
Preston claims that the trial court erred in granting summary judgment against
him on his promissory estoppel claim. Promissory estoppel is a defensive theory that
estops a promisor from denying the enforceability of a promise. Trammel Crow Co.
No. 60 v. Harkinson, 944 S.W.2d 631, 636 (Tex. 1997). The elements of a
promissory estoppel claim are: (1) a promise (2) foreseeability of reliance by the
promisor, and (3) substantial reliance by the promisee to his detriment. Miller v.
Raytheon Aircraft Co., 229 S.W.3d 358, 378 (Tex. App.—Houston [1st Dist.] 2007,
no pet.) (citing English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983)). To show
detrimental reliance, the plaintiff must show that he materially changed his position
in reliance on the promise. See id. at 379.
According to Preston, Ribosome promised to distribute the funds it owed to
the Trusts directly to Preston and he detrimentally relied on that promise by
borrowing $53 million from Elaine in 2008 to make a stock purchase. Preston does
not, however, allege that that Ribosome made any promise concerning the effect of
the loan agreement on Ribosome’s distributions to Preston or the Trusts as limited
partners, let alone one that obligates Ribosome to continue distributing Trust funds
directly to Preston until he repaid the loan.
Acting on behalf of Ribosome’s general partner, Elaine ended the direct
distributions to Preston as the Trusts’ beneficiary and, as Trustee, she revoked any
12
previous decisions permitting Ribosome to make the direct distributions. Without
authority to deviate from the distribution method set out in its partnership agreement,
Ribosome reverted to that method, which requires that the proceeds be distributed
to the limited partners—the legal owners of the proceeds. Because the direct
distribution agreement was terminable at will and was not modified to address
Preston’s debt, the circumstances do not give rise to detrimental reliance as a matter
of law. See Miller, 229 S.W.3d at 379 (no detrimental reliance where employee was
hired at will shortly before new joint venture succeeded employer, and joint venture
terminated his employment four days after succession).
C. Aiding and abetting breach of fiduciary duty
Preston complains that the trial court erred in granting summary judgment on
his claim that Ribosome aided and abetted a breach of the fiduciary duties that Elaine
owed as Trustee of the Harrier and Falcon Trusts. Ribosome challenged this claim
on both no-evidence and traditional grounds, first alleging that Preston had no
evidence that Elaine, as trustee, breached any fiduciary duty.
Whether a fact issue exists as to breach of fiduciary duty depends on the
Trusts’ terms. The construction of a trust instrument is a question of law that we
review de novo. See Hurley v. Moody Nat’l Bank of Galveston, 98 S.W.3d 307, 310
(Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Nowlin v. Frost Nat’l Bank,
908 S.W.2d 283, 286 (Tex. App.—Houston [1st Dist.] 1995, no writ)). We interpret
13
trust instruments the same way we construe wills, contracts, and other legal
documents. Alpert v. Riley, 274 S.W.3d 277, 286 (Tex. App.—Houston [1st Dist.]
2008, pet. denied). We determine the settlor’s intent from the language used within
the four corners of the instrument. See Shriner’s Hosp. for Crippled Children of Tex.
v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980); Eckels v. Davis, 111 S.W.3d 687, 694
(Tex. App.—Fort Worth 2003, pet. denied). The meaning of the trust instrument is
a question of law when no ambiguity exists. Alpert, 274 S.W.3d at 286. If the court
can give a definite legal meaning or interpretation to an instrument’s words, it is
unambiguous, and the court construes the instrument as a matter of law. Id. (citing
Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983)); see Hurley, 98 S.W.3d at 310–
11 (explaining that if language conferring powers on trustee unambiguously
expresses settlor’s intent, neither trustee nor court can take those powers away).
1. Sufficiency of Ribosome’s no-evidence challenge
Citing Helm Companies v. Shady Creek Housing Partners, Ltd., No. 01-05-
00743-CV, 2007 WL 2130186 (Tex. App.—Houston July 26, 2007, pet. denied)
(mem. op.), Preston first claims that Ribosome’s no-evidence motion was fatally
defective because it failed to identify the elements for aiding and abetting. See id. at
*5–6. The Texas Supreme Court has not expressly recognized aiding and abetting
another’s tortious conduct as a cause of action. See First U. Pentecostal Church of
Beaumont v. Parker, 514 S.W.3d 214, 224 (Tex. 2017). Helm Companies involved
14
a claim for knowing participation in a breach of fiduciary duty. See id. at *4.
Assuming that Preston’s aiding and abetting claim is comparable to the knowing
participation claim in Helm Companies, it shares the requirement that the plaintiff
prove the existence of an underlying breach of fiduciary duty.
Ribosome’s motion argues that there is no issue of fact as to Preston’s breach
of fiduciary duty claim, which Preston relies on as the basis for his aiding and
abetting claim against Ribosome. This contention is not vague or conclusory; it
states the specific element of Preston’s aiding and abetting claim that Ribosome
challenges for lack of evidence, and thus complies with Rule 166a(i). See TEX. R.
CIV. P. 166a(i) cmt. (explaining that 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); Neurodiagnostic
Tex., L.L.C. v. Pierce, 506 S.W.3d 153, 175 (Tex. App.—Tyler 2016, no pet.); see
also Estate of Danford, 550 S.W.3d 275, 280 (Tex. App.—Houston [14th Dist.]
2018, no pet.) (explaining that in no-evidence motion for summary judgment,
movant asserts that there is no evidence of one or more essential elements of claims
for which nonmovant bears the burden of proof at trial). Finding the motion
sufficient, we turn to whether the trial court’s ruling comports with the law and the
record.
15
2. No evidence of breach of fiduciary duty
Preston claims that Ribosome aided and abetted breaches of the fiduciary
duties that Elaine owed to the Harrier and Falcon Trusts. His aiding and abetting
claim, then, relies on the existence of an underlying breach of fiduciary duty. A cause
of action for breach of fiduciary duty requires the plaintiff to show (1) a fiduciary
relationship between the parties, (2) the defendant’s breach of fiduciary duty to the
plaintiff, and (3) injury to the plaintiff or benefit to the defendant resulting from the
breach. Dauz v. Valdez, No. 01-15-00831-CV, 2018 WL 4129826, at *6 (Tex.
App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (citing Plotkin v. Joekel, 304
S.W.3d 455, 479 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)).
Preston contends that Elaine, as trustee of the Harrier and Falcon Trusts,
breached her fiduciary duty by acting in bad faith to accumulate Trust income instead
of distributing it to him, as had been the practice before the termination of his
employment with MarOpCo. Under the Trusts’ language, however, the Trustee has
absolute, unfettered discretion over the decision to accumulate or distribute the Trust
income. See, e.g., Caldwell v. River Oaks Tr. Co., No. 01-94-00273-CV, 1996 WL
227520, at *12 (Tex. App.—Houston [1st Dist.] May 2, 1996, writ denied) (mem.
op.) (“A power is considered discretionary if the trustee may decide whether or not
to exercise it.”). In her “sole discretion,” the Trustee “may accumulate or distribute
income accruing for the benefit of the beneficiaries,” and “determin[e] the time or
16
frequency of any distributions” as well as “the manner, time, circumstances, and
conditions of the exercise of any right, power or authority vested in the Trustee.”
Preston claims that his breach of fiduciary duty claim is supported by evidence
that Elaine acted unfairly, suggesting that she knew he had come to depend on the
distributions and that she had treated his brother differently under the separate trusts
that benefit him. Preston labels this perceived unfairness as “bad faith”; however, a
decision to accumulate interest—which the plain language of the Trusts expressly
allows—and the differences in treatment between the beneficiaries of different trusts
does not raise a fact issue showing a breach of fiduciary duty. Neither of the Trusts
contains language limiting the trustee’s discretionary authority, such as by declaring
a purpose to provide living expenses or requiring the distributions to Preston to be
equal to those made to Pierce, Jr. under the trusts that benefit him. See, e.g., Doherty
v. JPMorgan Chase Bank, N.A., No. 01-08-00682-CV, 2010 WL 1053053, at * (Tex.
App.—Houston [1st Dist.] Mar. 11, 2010, no pet.) (mem. op.) (holding that trustee
erred in denying funds for modification of bathroom in daughter’s home where
beneficiary had moved after suffering stroke that left her physically impaired; trust
required disbursement of funds on beneficiary’s request to provide for her “comfort,
health, support, or maintenance”). None of the circumstances raises a fact issue as
to whether Elaine abused the broad discretionary authority conferred by the Trusts.
17
Further, the record has no evidence of loss or injury to Preston or the Trusts
or of benefit to Elaine resulting from the decision to accumulate the Trust income
instead of distributing it. Preston claims that the withholding of Trust income
“causes [him] damages equal to the distributions that were wrongly withheld.” But
the Trusts do not give Preston any right to override the Trustee’s decisions about
how to handle the trust income. And, as he remains the beneficial owner of the
interest income accumulated in the Trusts, he is not entitled to a damages award that
would amount to a double recovery.
3. No evidence that Ribosome aided and abetted
Preston claims that Ribosome aided and abetted Elaine’s decision to
accumulate the Trust income by making distributions to the Harrier and Falcon
Trusts, as their legal owners, rather than directly to him, as the Trusts’ beneficiary.
The Texas Supreme Court observed that, if it were to recognize a cause of action for
aiding and abetting tortious conduct, “[c]ourts should look to the nature of the
wrongful act, kind and amount of assistance, relation to the actor, defendant’s
presence while the wrongful act was committed, and defendant’s state of mind.”
First U. Pentecostal, 514 S.W.3d at 225 (citing Juhl v. Airington, 936 S.W.2d 640,
644–45 (Tex. 1996)). Such a claim’s purpose would be “to deter antisocial or
dangerous behavior.” Juhl, 936 S.W.2d at 644; see also W. Fork Advisors, LLC v.
SunGard Consulting Servs., LLC, 437 S.W.3d 917, 921 (Tex. App.—Dallas 2014,
18
pet. denied) (aiding and abetting claim requires actor, with unlawful intent, to give
substantial assistance and encouragement to wrongdoer in tortious act).
Here, the allegedly wrongful conduct—Ribosome’s distribution of proceeds
to the Trusts, as limited partners, rather than to Preston, their beneficiary—is
required by Ribosome’s partnership agreement. Ribosome generally distributes
profits to its limited partners according to the terms of its partnership agreement. It
cannot deviate from those terms without direction from its general partner and the
limited partner that is legally entitled to receive the share of profits. When the
Trustee expressly revoked any authorization that may previously have existed for
Ribosome to distribute the proceeds it owed to the Trusts directly to the Trusts’
beneficiary, Ribosome lost any authority to distribute the Trusts’ profits directly to
Preston. No evidence shows that Ribosome gave the Trustee substantial assistance
and encouragement to revoke that authorization, or that Ribosome could have acted
differently had it believed the Trustee acted wrongfully by doing so. Because
Ribosome’s distribution of profits in compliance with its partnership agreement does
not constitute conduct in furtherance of a breach of fiduciary duty, the trial court
properly granted summary judgment on Preston’s aiding and abetting claim.
III. Claim for Accounting
Finally, Preston argues that the trial court erred in dismissing his common-
law claim for accounting based on Ribosome’s traditional summary-judgment issue.
19
An accounting is available when (1) the parties have a contractual or fiduciary
relationship; (2) the facts and accounts are “so complex [that] adequate relief may
not be obtained at law”; and (3) standard discovery procedures cannot provide
adequate relief at law. T.F.W. Mgmt. v. Westwood Shores Prop. Owners Ass’n, 79
S.W.3d 712, 717–18 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).
In its summary-judgment motion, Ribosome argued that its partnership
agreement identified any rights Preston had as to Ribosome, Ribosome had provided
him with all the financial information that he was entitled to under the partnership
agreement, and the agreement did not entitle Preston to a common-law accounting.
Ribosome’s partnership agreement identifies the rights and duties of the limited
partners and their duties in relation to the partnership. With respect to financial
information, the partnership agreement gives the limited partner the right to inspect
Ribosome’s books and records at reasonable times. It does not, however, include any
additional right to an accounting, and Preston does not identify any other source that
gives him that right. See TEX. BUS. ORGS. CODE § 153.105 (explaining that rights of
limited partners may be created only by certificate of formation, partnership
agreement, other statutory provisions, or other limited partnership provisions).5
5
Ribosome is a limited partnership formed under the laws of the British Virgin
Islands. Ribosome claims that it is governed by British Virgin Islands law but does
not provide a choice-of-law analysis. Because the parties do not argue otherwise,
we assume the application of either British Virgin Islands law or Texas law to this
issue would result in the same outcome, making a choice-of-law analysis
20
Preston further argues that Ribosome owes him a fiduciary duty to provide an
accounting because of his limited partner status. He cites no authority for this
argument and the Business Organizations Code makes clear any fiduciary powers or
liabilities belong not to the limited partnership, but to its general partner. See id.
§ 153.152. Because the partnership agreement does not require Ribosome to comply
with a limited partner’s demand for an accounting and Ribosome does not owe
Preston an independent duty that would give rise to a right to an accounting, the trial
court did not err in granting summary judgment on this claim.
CONCLUSION
We affirm the judgment of the trial court.
Gordon Goodman
Justice
Panel consists of Chief Justice Radack and Justices Goodman and Countiss.
unnecessary. See St. Paul Surplus Lines Ins. Co. v. Geo Pipe Co., 25 S.W.3d 900,
902–03 n.2 (Tex. App.—Houston [1st Dist.] 2000, no pet.).
21