Pension Advisory Group, Inc. Paul D. Hinson v. Fidelity Security Life Insurance Co. ( 2016 )

NUMBER 13-14-00566-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
PENSION ADVISORY GROUP, INC.
AND PAUL D. HINSON, Appellants,
v.
FIDELITY SECURITY LIFE INSURANCE CO., Appellee.
On appeal from the 343rd District Court
of Aransas County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Chief Justice Valdez
Appellants, Pension Advisory Group, Inc. and Paul D. Hinson (collectively
“Hinson”), appeal from the trial court’s summary judgment in favor of appellee, Fidelity
Security Life Insurance (“Fidelity”). By eight issues, Hinson contends that (1) Fidelity failed
to prove entitlement to summary judgment on Hinson’s claims for business disparagement,
tortious-interference with an existing contract, tortious-interference with prospective
business relationships, defamation, conspiracy, and breach of fiduciary duty (issues 1–6);
(2) Fidelity failed to prove entitlement to exclusion of Hinson’s expert witnesses (issue 7);
and (3) “Because [Fidelity] waived their evidentiary complaints by offering the same or
similar evidence into evidence, other [Hinson] summary judgment evidence should not
have been struck” (issue 8). We affirm in part and reverse and remand in part.
I. BACKGROUND
After consulting Frank Renfro, the trustee of a defined benefit pension plan for Star
Consultants, Inc., Hinson, the plan’s general agent, suggested that the plan be converted
to an annuity as a “412(e)(3) plan.” Hinson then contacted George Evanson from CJA &
Associates, Inc. (“CJA”) to find the best annuity plan. Renfro purchased an annuity from
Fidelity, and Hinson and CJA received commissions for the sale.
Subsequently, Renfro requested that his attorney, Deborah Welch, evaluate his
personal estate plan, which included the Fidelity annuity. According to Fidelity, at some
point after becoming aware of this evaluation, Hinson requested that Renfro sign a
commission disclosure notice concerning the annuity. Fidelity asserts that “Hinson
claimed that he had a copy of the notice with Renfro’s signature”; however, Renfro and
Welch denied that the signature was authentic. Renfro requested a refund of his money
because he claimed he was not aware that a commission had been paid to Hinson.
Subsequently, Fidelity representatives decided to refund the money to Renfro, and
according to Hinson, they did not call him or CJA to discuss Renfro’s complaint. Pursuant
to its contract, Fidelity terminated the annuity and exercised its right to recover
commissions from CJA and Hinson in the amount of $337,000. According to Hinson,
Fidelity’s employee, David Smith, then informed CJA’s employee, Ray Ankner, that Fidelity
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had cancelled Renfro’s annuity due to a complaint made by Renfro concerning the
commission disclosure notice and that Fidelity was seeking reimbursement of the
commission. Hinson further claims that Fidelity’s general counsel e-mailed CJA’s general
counsel informing him that Fidelity was cancelling Renfro’s annuity plan “because Hinson
did not disclose the commissions [to Renfro] and did not get proper documentation for the
Plan.” Hinson states, “Later, [Fidelity’s general counsel] specifically accused Hinson of
forging the [commission] Disclosure Notice.” According to Hinson, the CJA requested an
investigation and strongly disagreed that Hinson had forged Renfro’s signature.
Hinson sued Fidelity, among others, for business disparagement, defamation under
both libel and slander, tortious interference with contracts, conspiracy, breach of fiduciary
duty, fraud, breach of contract, and tortious interference with prospective contracts.
Fidelity filed motions for no-evidence and traditional summary judgment. The trial court
granted both motions. The trial court also granted Fidelity’s motion to strike Hinson’s
summary judgment evidence, which included the depositions of James Ferguson and
Stuart J. Wright. This appeal followed.1
II. EXCLUSION OF HINSON’S EXPERT WITNESSES
In response to Fidelity’s motions for summary judgment, Hinson offered the
deposition testimony of Ferguson and Wright. However, Fidelity objected to their
testimony regarding damages and malice on the basis that the testimony was conclusory,
speculative, not based on specialized knowledge or a reliable foundation, and not based
on any methodology. The trial court granted Fidelity’s motion to strike Hinson’s summary
1 Hinson has not challenged the summary judgment on his breach of contract claim.
3
judgment evidence. By his seventh issue, Hinson argues that the trial court improperly
granted Fidelity’s motion to strike Ferguson’s and Wright’s deposition testimony.
On appeal, Hinson argues that Ferguson’s and Wright’s depositions support his
claim of damages. However, Hinson has not cited the appellate record in his brief to
support any of his contentions. See TEX. R. APP. P. 38.1(f), (h). Instead, Hinson has cited
his voluminous appendix to support his appellate claims. Citing the appendix is not a
substitute for citing the record. Omohundro v. Ramirez–Justus, 392 S.W.3d 218, 221 (Tex.
App.—El Paso 2012, pet. denied) (citing Jackson v. Citibank (S. D.), N.A., 345 S.W.3d
214, 214 (Tex. App.—Dallas 2011, no pet.) (explaining that citing only the brief’s appendix
does not comply with the rules of appellate procedure, which require citation to the record
on appeal)). And, this Court is not required to search the record for the facts supporting a
party’s position. Id. Thus, error, if any, may be waived. See id. However, to the extent
we have been able to determine items in the clerk’s record upon which Hinson relies, we
have done so. See id. But, as this is a voluminous record, to the extent we have been
unable to determine which documents in the clerk’s record upon which Hinson relies, we
conclude he has waived error, if any. See id. To the extent we may have reviewed
documents or evidence that Hinson amended or that he has not meant to cite, we conclude
he has waived error, if any, by failing to cite the Clerk’s record in his brief. See id. Within
these parameters, we will address Hinson’s issues.
In the context of lost profits, the party offering expert testimony must show that the
underlying data supporting the expert’s opinion is reliable and based on an acceptable
methodology. See DaimlerChrysler Motors Co., LLC v. Manuel, 362 S.W.3d 160, 191
(Tex. App.—Fort Worth 2012, no pet.). “The amount of the loss must be proven by
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competent evidence with ‘reasonable certainty’ by whatever method is chosen, but the
rule regarding such proof is intended to be ‘flexible enough to accommodate the myriad
circumstances in which claims for lost profits arise.’” Id. (citing and quoting Tex.
Instruments, Inc. v. Teletron Energy Mgmt., Inc., 877 S.W.2d 276, 279 (Tex. 1994)). An
expert’s opinion regarding lost profits must at the least “be based upon objective facts,
figures, or data from which the amount of lost profits may be ascertained.” Id. The expert
must connect the data relied upon to his opinion and “show how that data is valid support
for the opinion reached.” Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 642 (Tex. 2009).
We review the admissibility of evidence under an abuse of discretion standard. Id. at 638;
Ordonez v. Solorio, 480 S.W.3d 56, 67–68 (Tex. App.—El Paso 2015, no pet.).
As to damages, Ferguson stated, at his deposition, that he would no longer send
any of his clients to Hinson because of the forgery allegations. Ferguson testified that
Hinson suffered actual damages in the amount of $800,000 to $1.2 million in new business
over the next several years. Ferguson based his calculations of actual damages on the
fact that he would no longer send clients to Hinson. However, when asked if he had
conducted any analysis to support his opinion, Ferguson responded, “No.” When asked
how much business he had sent Hinson in the past year, Ferguson stated that he had not
been in business the prior year, but that from around 2003 until 2013, he had sent Hinson
business of “about $400,000” per year. The following exchange then occurred:
[Fidelity]: And so when you testified about the damages that Mr. Hinson
is going to suffer, you haven’t done any actual analysis of
damages, have you, sir?
A. No.
Q. You’re just speculating on what damages you might give him
in the future?
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A. Yes.
Given Ferguson’s admission that he relied on no data, performed no analysis of
any data, had speculated about the damages, and that there is no evidence that Ferguson
based his opinion on any accepted methodology, we cannot conclude that the trial court
abused its discretion by granting Fidelity’s motion to strike Ferguson’s deposition regarding
his opinion of damages. See Whirlpool Corp., 298 S.W.3d at 638; Ordonez, 480 S.W.3d
at 67–68. We overrule Hinson’s seventh issue to the extent he complains that the trial
court improperly excluded Ferguson’s testimony on damages.2
Wright testified, at his deposition, that he could not identify any specific business
that Hinson had lost as a result of any issue in this lawsuit and that he had no knowledge
of Hinson’s business. When asked if he had “any opinions as to the amount of any
damages [Hinson] suffered” and “You can’t identify a single piece of business that he’s
lost as a result of any issue in this lawsuit,” he responded, “No.” Wright stated that in his
opinion Hinson would not be successful in launching a product that he had developed due
to the allegations made against him. However, Wright later acknowledged that he had no
idea whether Hinson’s product would be successful. Wright claimed that he would no
longer send any business to Hinson, but he admitted that he had no business to refer to
Hinson and could not identify any clients who he would not refer to Hinson.
2 Regarding the element of malice, Ferguson testified that he had no knowledge of Fidelity’s state
of mind and that he did not know whether Fidelity acted with malice or not. Thus, we conclude the trial court
did not abuse its discretion by striking that evidence. See Whirlpool Corp. v. Camacho, 298 S.W.3d 631,
642 (Tex. 2009); Ordonez v. Solorio, 480 S.W.3d 56, 67–68 (Tex. App.—El Paso 2015, no pet.). We overrule
Hinson’s seventh issue to the extent he argues that the trial court abused its discretion by striking Ferguson’s
testimony regarding malice.
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Given that Wright admitted that he had no knowledge of Hinson’s business and
could not identify any actual damages Hinson has suffered, we cannot conclude that the
trial court abused its discretion by granting Fidelity’s motion to strike Wright’s testimony.
See Whirlpool Corp., 298 S.W.3d at 638; Ordonez, 480 S.W.3d at 67–68. We overrule
Hinson’s seventh issue to the extent he argues that the trial court erred in excluding
Wright’s testimony on damages.
III. NO-EVIDENCE SUMMARY JUDGMENT
By his first and second issues, Hinson challenges the no-evidence summary
judgment. Fidelity argued in its motion for no-evidence summary judgment that there was
no evidence of, among other things, malice or damages for Hinson’s claim of business
disparagement. As to Hinson’s tortious interference with existing contracts claim, Fidelity
argued that there is no evidence of a valid contract subject to interference. Thus, the
burden shifted to Hinson to bring forth more than a scintilla of probative evidence to raise
a genuine issue of material fact regarding those elements.
A. Standard of Review
A party may move for summary judgment on the ground that no evidence exists of
one or more essential elements of a claim on which the adverse party bears the burden of
proof at trial. TEX. R. CIV. P. 166a(i); Timpte Inds., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.
2009). Once the motion is filed, the burden shifts to the non-movant to produce evidence
raising a genuine issue of material fact on the elements specified in the motion. TEX. R.
CIV. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). If the
respondent brings forth more than a scintilla of probative evidence to raise a genuine issue
of material fact, summary judgment is improper. King Ranch, Inc. v. Chapman, 118
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S.W.3d 742, 751 (Tex. 2003). More than a scintilla of evidence exists when the evidence
“rises to a level that would enable reasonable and fair-minded people to differ in their
conclusions,” while less than a scintilla exists when the evidence is “so weak as to do no
more than create mere surmise or suspicion.” Id.; Reynosa v. Huff, 21 S.W.3d 510, 512
(Tex. App.—San Antonio 2000, no pet.). “When reviewing a no-evidence summary
judgment, we ‘review the evidence presented by the motion and response in the light most
favorable to the party against whom the summary judgment was rendered, crediting
evidence favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not.’” Timpte Inds., Inc., 286 S.W.3d at 310.
B. Business Disparagement
By his first issue, Hinson argues that a question of fact exists regarding the element
of malice in his business disparagement claim. In its motion for no-evidence summary
judgment, Fidelity claimed that there was no evidence of malice to support Hinson’s claim
of business disparagement. Hinson responded that “[h]ere the defamatory statement—
that Hinson forged Renfro’s name” along with other factors, “is more than a scintilla of
evidence of actual malice, ill will, or intent to interfere in [his] economic interest in an
unprivileged fashion.” Hinson relied on a definition of malice requiring a showing that
Fidelity acted either with actual malice, ill will, or an intent to interfere in his business, and
he argued that the statement itself was evidence of malice. Hinson identified “other
factors” as how the statement itself was evidence of malice ill will, or an intent to interfere
in his business.
As this Court has previously explained, actual malice in a business disparagement
claim requires proof that the defendant “made a statement ‘with knowledge that it was
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false or with reckless disregard of whether it was true or not.’” Tex. Campaign for the Env’t
v. Partners Dewatering Int’l, LLC, 485 S.W.3d 184, 201 (Tex. App.—Corpus Christi 2016,
not pet.). To establish a reckless disregard, the party must present some evidence that
the defendant entertained serious doubts as to the truth of the statements made. Id. Thus
the focus of an actual malice determination is on the defendant’s state of mind at the time
of the publication. Id. “‘An error in judgment is not enough’ to establish reckless
disregard.” Id. (quoting Casso v. Brand, 776 S.W.2d 551, 563 (Tex. 1989)). “Mere
negligence is not enough.” Id. (quoting Forbes, Inc. v. Granada Biosciences, Inc., 124
S.W.3d 167, 171–72 (Tex. 2003)).
Here, the trial court struck Ferguson’s deposition testimony regarding malice, and
Hinson provided no other evidence in response to Fidelity’s no-evidence motion for
summary judgment that it made the complained-of statement with malice. See Tex.
Campaign for the Env’t, 485 S.W.3d at 201. Thus, reviewing the evidence in the light most
favorable to Hinson, crediting evidence favorable to him, if reasonable jurors could, and
disregarding contrary evidence unless reasonable jurors could not, Hinson failed to
provide more than a scintilla of probative evidence to raise a genuine issue of material fact
regarding malice. See King Ranch, Inc., 118 S.W.3d at 751; Timpte Inds., Inc., 286
S.W.3d at 310. Accordingly, we cannot conclude that the trial court improperly granted
summary judgment in favor of Fidelity regarding Hinson’s business disparagement claim.
We overrule Hinson’s first issue.
C. Tortious Interference with Existing Contracts
By his second issue, Hinson argues that there is more than a scintilla of evidence
that Hinson was a party to contracts that were subject to interference. In its motion for no-
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evidence summary judgment, Fidelity argued that although Hinson claimed he had valid
contracts with various entities and individuals that formed the basis of his tortious
interference claim, there was no evidence that Hinson had valid contracts with these
entities and individuals. Hinson responded “[t]here is evidence of pension administration
contracts for Betty Samota and Mack Dick as well as for contracts for an automatic
increase in the life insurance contract to five million dollars upon the death of the other for
Ms. Samota and Mr. Dick. There is also evidence of contracts for The Ranch Gang,
Athletic Solutions, Star Consultants, and Rio Petroleum.” Finally, Hinson argued that
Fidelity conceded that Hinson had a contract with CJA, which could have been the basis
of Hinson’s tortious interference claim.
In its order granting summary judgment, the trial court stated it granted Fidelity’s
motion to strike Hinson’s summary judgment evidence. Hinson’s argument that he
provided evidence of valid contracts with the above-named individuals and entities
depends on whether the trial court abused its discretion in striking Hinson’s summary
judgment evidence. If the trial court properly granted Fidelity’s motion to strike, then
Hinson could not have met his burden of providing more than a scintilla of evidence to
support his claim of existing valid contracts, and we must affirm the trial court’s granting of
Fidelity’s no-evidence summary judgment.
Hinson argues that the trial court abused its discretion by striking his summary
judgment evidence because Fidelity offered the same or similar evidence to support its
motion for summary judgment. However, again, Hinson’s citation to his appendix does
not assist us in making this determination because as previously stated, citing the
appendix does not substitute for citing the record. See Omohundro, 392 S.W.3d at 221.
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We are not required to search the record for the facts supporting a party’s position. Id.
Thus, we conclude that error, if any, was waived.3 See id. We conclude that Hinson has
not shown that the trial court’s no-evidence summary judgment on his tortious interference
with existing contracts is improper. See id. We overrule Hinson’s second issue.
IV. TRADITIONAL SUMMARY JUDGMENT
We review the granting of a traditional motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life &
Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Branton v. Wood, 100 S.W.3d
645, 646 (Tex. App.—Corpus Christi 2003, no pet.). All evidence favorable to the non-
movant is taken as true, “and we indulge every reasonable inference and resolve any
doubts in the non[-]movant’s favor.” Valence Operating Co., 164 S.W.3d at 661.
In a traditional motion for summary judgment, the movant has the burden to
establish that no genuine issue of material fact exists and that he is entitled to judgment
as a matter of law. Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing
TEX. R. CIV. P. 166a(c)); City of Hous. v. Clear Creek Basin Auth., 589 S.W.2d 671, 678
(Tex. 1979). A defendant seeking a traditional motion for summary judgment must either
conclusively disprove at least one element of each of the plaintiff’s causes of action or
plead and conclusively establish each essential element of any affirmative defense.
3 By his eighth issue, Hinson challenges the trial court’s exclusion of some of his summary judgment
evidence on the basis that Fidelity relied on the same or similar evidence to support its motions for summary
judgment. Hinson provides a chart in his brief with multiple citations to his appendix, which include many
documents that may or may not be in this voluminous clerk’s record that he is asking us to compare with
other documents that may or may not be located in this voluminous clerk’s record. We decline to make an
independent review of this voluminous clerk’s record in order to find the documents to determine whether
Fidelity relied on the same or similar evidence that the trial court struck. We overrule Hinson’s eighth issue.
11
Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam); Sanchez v. Matagorda
County, 124 S.W.3d 350, 352 (Tex. App.—Corpus Christi 2003, no pet.).
A. Tortious Interference with Prospective Business Relationships
By his third issue, Hinson contends that Fidelity failed to meet its traditional
summary judgment burden on his cause of action for tortious interference with prospective
business relationships.
To prevail on a claim for tortious interference with prospective
business relations, a plaintiff must establish that (1) a reasonable probability
existed that the plaintiff would have entered into a business relationship with
a third party; (2) the defendant[’s acts were intentional, i.e., the defendant]
either acted with a conscious desire to prevent the relationship from
occurring or knew the interference was certain or substantially certain to
occur as a result of the conduct; (3) the defendant’s conduct was
independently tortious or unlawful; (4) the interference proximately caused
the plaintiff injury; and (5) the plaintiff suffered actual damage or loss as a
result.
Hicks v. Grp. & Pension Adm’rs, Inc., 473 S.W.3d 518, 535 (Tex. App.—Corpus Christi
2015, no pet.) (citing Schimmel v. McGregor, 438 S.W.3d 847, 860 (Tex. App.—Houston
[1st Dist.] 2014, pet. denied)); see Bradford v. Vento, 48 S.W.3d 749, 757 (Tex. 2001)
(explaining that under the Restatement (Second) of Torts § 766B cmt. d, tortious
interference with prospective relations requires that the party’s acts be intentional, which
requires evidence showing either that “the actor desire[d] to bring [the interference] about
or [that] he [knew] that the interference [was] certain or substantially certain to occur as a
result” of his conduct); see also Olabarrieta v. Compass Bank, N.A., No. 13-11-00748-CV,
2013 WL 7864080, at *2 (Tex. App.—Corpus Christi Aug. 1, 2013, no pet.) (mem. op.)
(“Interference is tortious only if it is intentional, and the intent required is the intent to
interfere, not just an intent to do the particular acts done.”).
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In its motion for traditional summary judgment, Fidelity set out the above-stated
elements of tortious interference with prospective relations. See Id. In its motion, Fidelity
argued it was entitled to summary judgment because (1) Fidelity cannot tortiously interfere
with its own prospective contracts and (2) there was no evidence that it intended to
interfere with any of Hinson’s prospective business relationships.
The Texas Supreme Court has explained that when a party files a traditional motion
for summary judgment, the rules do not prevent that party from also moving for summary
judgment on a no-evidence basis. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004); see
also Hearn v. Snapka, No. 13-11-00332-CV, 2012 WL 7283791, at *9 (Tex. App.—Corpus
Christi Dec. 28, 2012, pet. denied) (mem. op.) (concluding that the movant’s “motion—
though captioned a no-evidence motion for summary judgment—was actually a hybrid-
motion containing both no-evidence and traditional grounds for summary judgment” and
affirming the summary judgment because on appeal, the appellant failed to challenge the
traditional grounds supporting the trial court’s granting summary judgment); Garcia v. City
of Elsa, No. 13-10-00440-CV, 2012 WL 1484105, at *4 (Tex. App.—Corpus Christi Apr.
26, 2012, no pet.) (mem. op.) (noting that the supreme court does not require litigants to
file separate motions for summary judgment pursuant to Texas Rule of Civil Procedure
166a(i) and 166a(c)). If a movant states in its traditional motion for summary judgment
that there is no evidence of one or more of the elements of the cause of action, it is
sufficient to invoke rule 166a(i), and we may not disregard it. Binur, 135 S.W.3d at 651
(explaining that the movant stated in its traditional motion for summary judgment “that
there was no evidence of proximate cause” and holding that the lower court of appeals
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“erred in concluding that this ground could be disregarded because evidence was attached
to the motion”); see also Hearn, 2012 WL 7283791, at *9.
Thus, in this case, although Fidelity captioned its motion as requesting summary
judgment under traditional grounds, we may not disregard Fidelity’s assertion that there
was no evidence that it intended to interfere with any of Hinson’s prospective contracts or
business relationships. Accordingly, we conclude that Fidelity’s motion captioned
traditional motion for summary judgment was actually a hybrid motion containing both no-
evidence and traditional grounds for summary judgment. See Binur, 135 S.W.3d at 650;
see also Hearn, 2012 WL 7283791, at *9. Generally, when a movant files a hybrid motion
on both no-evidence and traditional grounds, we review the trial court’s judgment under
the no-evidence standard of review first. Salazar v. Ramos, 361 S.W.3d 739, 745 (Tex.
App.—El Paso 2012, pet. denied); see also Hearn, 2012 WL 7283791, at *10.
On appeal, as we understand it, Hinson argues that there is more than an scintilla
of evidence that Fidelity intended to interfere with his prospective business relationships
because we can conclude from the statement itself that Fidelity had an awareness of the
statement’s harmful potential, the accusation was improbable, and there was a lack of
urgency to make the defamatory statement. Hinson also states that the statement itself
shows that (1) Fidelity relied on one source, Renfro, who was biased, (2) there is “a lack
of proof of the source’s trustworthiness,” (3) Fidelity “lacks expertise in the statement’s
subject matter (forgery),” and (4) Fidelity’s “care exercised, extreme departure from
professional standards,” ignored contrary evidence, avoided key witnesses, and refused
“to consider other possibilities, particularly when presented with another possibility.”
However, in his response to Fidelity’s hybrid motion for summary judgment, Hinson made
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none of the above arguments. In his response, Hinson did not address Fidelity’s claim
that there is no evidence that it intended to interfere with Hinson’s prospective business
relationships. See TEX. R. CIV. P. 166a(i); Mack Trucks, Inc., 206 S.W.3d 582. Therefore,
Hinson did not meet his burden to bring forth more than a scintilla of probative evidence
to raise a genuine issue of material fact, and the summary judgment was not improper on
these grounds. See King Ranch, Inc., 118 S.W.3d at 751. We overrule Hinson’s third
issue.
B. Defamation
By his fourth issue, Hinson contends that Fidelity did not meet its summary
judgment burden of showing as a matter of law that no genuine issue of material fact
existed on his defamation claim.
In its traditional motion for summary judgment, Fidelity stated, without more, that
Hinson could not prevail because his evidence on damages was speculative and “any lost
income from referrals or the product developed by Hinson is necessarily speculative and
based on conjecture.” However, as the movant in a motion for traditional summary
judgment, the burden was not on Hinson to provide non-speculative evidence of
damages.4 In a motion for traditional summary judgment the burden was on Fidelity to
establish as a matter of law that no genuine issue of material fact existed on an element
of Hinson’s defamation claim or to establish all of the elements of an applicable defense.
See Sw. Elec. Power Co., 73 S.W.3d at 215; City of Hous., 589 S.W.2d at 678. Thus,
4 Fidelity did not state in their motion for summary judgment that there is no evidence of damages.
Instead, Fidelity merely challenged the quality of Hinson’s evidence.
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because Fidelity did not meet its burden, the trial court could not have properly granted
Fidelity’s traditional summary judgment on that basis. See id.
Fidelity also argued that Hinson could not prove damages for defamation because
the “alleged statements of [Martha] Madden and Smith[, (both of whom were Fidelity
employees)], which [Fidelity] have shown did not occur as alleged, were not published
outside of CJA, and CJA continues to do business with [Hinson],” and “Ankner, the CEO
of CJA, has testified that he does not believe that Hinson forged Renfro’s signature.” As
we understand Fidelity’s traditional motion for summary judgment, it challenged only the
element of damages on Hinson’s defamation claim.5 In addition, the argument relied upon
by Fidelity depends on proof that Madden and Smith did not publish the alleged defamation
to anyone not employed by CJA. Thus, we focus our analysis on whether Fidelity
established this fact as a matter of law.6
In his live pleading, Hinson claimed that Fidelity published the alleged false
statements by written letter, e-mail, and phone conversations to employees of CJA, Louis
Meers, Renfro’s accountant, Welch and others in the Amarillo area. However, Fidelity
cited no evidence in its motion supporting its claim that Madden and Smith did not publish
the alleged defamatory statements outside of CJA—that is Fidelity did not provide any
evidence that Madden and Smith did not make the alleged defamatory statements to
5 “Defamation’s elements include (1) the publication of a false statement of fact to a third party, (2)
that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages, in some
cases.” In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015). Although Fidelity generally mentioned these
elements in in its motion for summary judgment, it did not provide any discussion regarding why it met its
burden of establishing no issue of genuine fact existed as to any element other than damages. See TEX. R.
CIV. P. 166a(c) (requiring that movant specifically challenge elements of the non-movant’s cause of action).
6 We note, however, that we are assuming without deciding that if Fidelity had established such a
fact, it would have prevailed on summary judgment.
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Meers and Welch. In addition, Fidelity did not address whether it published the alleged
defamatory statements to others in the Amarillo area as alleged by Hinson. Thus, we
agree with Hinson that Fidelity did not meet its burden of establishing that there is no issue
of genuine fact regarding whether Hinson suffered damages due to the alleged defamation
because Fidelity did not establish as a matter of law that Madden and Smith only made
statements to CJA employees as alleged in its motion for traditional summary judgment. 7
See TEX. R. CIV. P. 166a. Accordingly, we conclude that the burden did not shift to Hinson,
and summary judgment on his claim of defamation was improper. We sustain Hinson’s
fourth issue.
C. Conspiracy
By his fifth issue, Hinson contends that Fidelity failed to properly challenge that
“there were less than two entities,” the entities “shared the common objective of publishing
the statement that Hinson forged Renfro’s signature, effectuating the Release between
those parties,” there was a “meeting of the minds,” and there is an underlying tort.
The elements of the tort of civil conspiracy are as follows: “(1) two or more persons;
(2) an object to be accomplished; (3) a meeting of the minds on the object or course of
7 Hinson claims that he could have prevailed on his defamation claim based on republication of the
alleged defamation. See First State Bank of Corpus Christi v. Ake, 606 S.W.2d 696, 701 (Tex. App.—Corpus
Christi 1980, writ. ref’d) (“Likewise, if a reasonable person would recognize that an act creates an
unreasonable risk that the defamatory matter will be communicated to a third party, the conduct becomes a
negligent communication, which amounts to a publication just as effectively as an intentional
communication.”); see also Rincones v. WHM Custom Servs., Inc., 457 S.W.3d 221, 246 (Tex. App.—
Corpus Christi 2015, pet. granted) (“This Court, when faced with the question in Ake, determined that the
rule announced in Lyle is inapplicable in certain circumstances in which the defamatory communication was
‘surely to be brought out’ and ‘would have been a natural inquiry’ in an ‘employment interview or in an
application for employment.’”); DeWald v. Home Depot, No. 05-98-00013-CV, 2000 WL 1207124, at *9 (Tex.
App.—Dallas Aug. 25, 2000, no pet.) (agreeing with and approving the reasoning in Ake and stating, “If an
employer gives untrue defamatory reasons for terminating an employee, it should recognize that such
conduct creates an unreasonable risk that the defamatory matter will be communicated to prospective
employers.”). However, it does not appear that Hinson alleged any facts in his live pleading supporting such
a theory. Nonetheless, such a determination is not dispositive to our decision. See TEX. R. APP. P. 47.1.
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action; (4) one or more unlawful, overt acts; and (5) damages as a proximate result.
Backes v. Misko, 486 S.W.3d 7, 27 (Tex. App.—Dallas 2015, pet. denied). “A defendant’s
liability for conspiracy depends on ‘participation in some underlying tort for which the
plaintiff seeks to hold at least one of the named defendants liable.’” Id.
In its motion for traditional summary judgment, Fidelity did not specifically challenge
all of the elements of conspiracy. Instead, Fidelity specifically argued that no underlying
tort could be proven and that because Smith was an employee of Fidelity, it and he could
not have conspired with each other unless Smith was acting in his personal capacity.
However, Fidelity neither cited nor provided any evidence that Smith had been acting in
his corporate capacity. Again, as the movant of a traditional motion for summary judgment,
the burden lay with Fidelity to establish its entitlement to summary judgment. Sw. Elec.
Power Co., 73 S.W.3d at 215; City of Hous., 589 S.W.2d at 678. Accordingly, the trial
court could not have granted traditional summary judgment on the basis that Smith was
acting in his corporate capacity when he allegedly made the defamatory statements
because Fidelity did not meet its summary judgment burden.8
Regarding whether there was an underlying tort, Fidelity argued, “[a]s discussed
above, [Hinson has] failed to identify any representations made by [Fidelity] or Smith, or
the reliance on any representation made by any of the parties at issue, both fatal flaws to
any claim of fraud.” Again, as the movant, Fidelity had the burden of establishing as a
matter of law that no issue of material fact existed regarding the underlying tort. Here,
8 In his pleadings, Hinson alleged that Smith told Ankner that Fidelity was cancelling Renfro’s annuity
“due to forgery of the Disclosure notice.” Hinson also alleged that he “received word from CJA that [Smith,
Fidelity, and Renfro] were telling people that Hinson had forged Renfro’s signature on the Disclosure Notice.”
Pleading in the alternative, Hinson stated that Smith, among others, had “implied that Hinson forged Renfro’s
signature or that was at the least the gist of [Fidelity’s and Smith’s] statements.”
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Fidelity surmised that the underlying tort alleged by Hinson was fraud and attempted to
challenge the reliance element of fraud by shifting the burden to Hinson. However, in a
traditional motion for summary judgment, the burden does not shift until the movant has
conclusively negated an element of the non-movant’s claim. See Castillo v. Westwood
Furniture, Inc., 25 S.W.3d 858, 863 (Tex. App.—Houston [14th] Dist. 2000, no pet.)
(“Westwood did not attach any additional summary judgment evidence that conclusively
negated the element of actual or constructive knowledge. . . . [therefore,] the burden
never shifted to [the non-movant] to present evidence to create a fact issue.”). Here,
without citation to any evidence, Fidelity failed to conclusively negate at least one element
of Hinson’s conspiracy claim; thus, the burden never shifted to Hinson to present evidence
creating a fact issue. See id. Accordingly, we conclude that Fidelity was not entitled to
summary judgment as a matter of law on Hinson’s conspiracy claim. We sustain Hinson’s
fifth issue. See id.
D. Breach of Fiduciary Duty
Regarding breach of fiduciary duty, by his sixth issue, Hinson argues as follows:
[Fidelity] negotiated a settlement affecting [Hinson’s] rights, purported
to make [Hinson] a “party” to the Release, and acted as an intermediary
between Hinson and his initial, purported accuser Renfro. Having purported
to so act on [Hinson’s] behalf, [Fidelity] owed [Hinson] a fiduciary duty. Per
the discussion of [Hinson’s] other causes of action involving intentional
wrongs, [Fidelity] breached that duty.
We conclude that Hinson had not adequately briefed this issue as he has not cited
appropriate authority or the record in support of his above-stated assertions. See TEX. R.
APP. P. 38.(h), (i). We overrule Hinson’s sixth issue.
E. Summary
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We conclude that summary judgment was improper on Hinson’s claims of
defamation and conspiracy because Fidelity did not conclusively negate at least one
element of those claims in its traditional motion for summary judgment. We conclude that
the trial court’s summary judgment was proper in all other respects.
V. CONCLUSION
We reverse the summary judgment as to Hinson’s defamation and conspiracy
claims and remand to the trial court for proceedings consistent with this opinion. The
judgment is affirmed in all other respects.
/s/ Rogelio Valdez
ROGELIO VALDEZ
Chief Justice
Delivered and filed the
30th day of September, 2016.
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