B/K Series Investors, LLC v. ECOM Series Investors, LLC ( 2023 )

AFFIRM; and Opinion Filed April 7, 2023
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00115-CV
B/K SERIES INVESTORS, LLC, Appellant
V.
ECOM SERIES INVESTORS, LLC, Appellee
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-17984
MEMORANDUM OPINION
Before Justices Carlyle, Goldstein, and Kennedy
Opinion by Justice Kennedy
Following B/K Series Investors, LLC’s (“BKSI”) sale of an apartment project,
as the manager of a fund holding an interest in same, ECOM Series Investors, LLC
(“ECOM”) sued BKSI for breach of contract and fraud. The trial court granted
ECOM summary judgment on its breach of contract claim and judgment following
a bench trial on its fraud claim. The court awarded ECOM actual damages of
$2,404,884 and punitive damages of $250,000.
BKSI appeals the final judgment and, in four issues, asserts the trial court
erred (1) in granting ECOM partial summary judgment on its breach of contract
claim, (2) in finding BKSI breached an implied duty of good faith and fair dealing,
(3) in applying Texas law to ECOM’s fraud claim, and (4) in awarding damages
based on unreliable expert testimony as to the fair market value of the apartment
project. We affirm the trial court’s judgment on ECOM’s fraud claim, the claim
affording ECOM the greatest recovery. Because all issues are settled in law, we
issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
I. Relationship Between the Parties and the Operative Company
Agreements
BKSI is a Texas limited liability company. In 2013, BKSI formed B/K Funds
Series PG, LLC (“BK Funds”), a Delaware limited liability company, as a vehicle
for acquiring and improving apartment projects.
On September 25, 2013, BK Funds, along with ACRC Champions Investor
LLC (“ACRC”), formed Promenade Champions Holdings, LLC (“Promenade
Holdings”) for the purpose of purchasing a 404-unit multifamily project in Houston
known as The Promenade Champions Forest (the “Promenade Project”). The
Promenade Project is the subject of the current dispute. BK Funds owned a
65.040066% interest in Promenade Holdings, and ACRC owned a 34.959934%
preferred equity interest. BK Funds, managed by BKSI, served as the manager of
Promenade Holdings.
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At or around the same time Promenade Holdings was created, BK Funds,
through BKSI, solicited an investment from ECOM, a Texas limited liability
company. The investment was sought, in part, to assist BK Funds in fulfilling its
payment obligation for the acquisition of the Promenade Project. ECOM agreed to
contribute $8,140,000 for a majority membership interest in BK Funds.1
On October 16, 2013, in connection with ECOM’s investment in BK Funds,
the members of BK Funds entered into an amended limited liability company
agreement, to be governed by and construed and interpreted in accordance with the
laws of the State of Delaware (the “2013 Agreement”).2 The 2013 Agreement
identified BKSI as the manager of BK Funds and gave ECOM the unilateral right,
at any time and for any reason, to remove BKSI as the manager of BK Funds and to
assume the management role. The agreement also prohibited BKSI, as manager,
from making “any voluntary sale or conveyance of, or contractual commitment for
a sale or conveyance of a Project [including the Promenade Project] . . .” without
first obtaining approval of 51% of the ownership interest. In other words, the 2013
Agreement required the approval of ECOM, as the majority member, to sell or make
a contractual commitment to sell the Promenade Project.
1
ECOM, BKSI, and Park Gates Partners, LLC maintained ownership interests of 51.23%, 27.48%, and
21.29% respectively.
2
The 2013 Agreement specifies that BKSI’s address is 8080 N. Central Expressway Suite 1250 Dallas,
Texas 75206 and ECOM’s address is 13760 Noel Road, Suite 500 Dallas, Texas 75204.
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In 2016, ACRC exercised its right under the Promenade Holdings’ limited
liability agreement to have its preferred equity interest in Promenade Holdings
redeemed. To facilitate the redemption, ECOM proposed that the members of BK
Funds make a pro rata capital contribution. While ECOM was willing to make such
a contribution, the other members of BK Funds were not. The issue was finally
resolved by ECOM agreeing to purchase ACRC’s preferred equity interest for a
payment of $3.5 million. In conjunction with that purchase, the members of BK
Funds amended the 2013 Agreement (“2016 Amendment”) to, among other things,
amend the duties and restrictions placed on BKSI as the manager of BK Funds.3
3
Section 3.3.2 of the 2016 Amendment provided in part:
Despite anything in the [2013] Agreement to the contrary, the Manager will not (and will
not be entitled to) to [sic] do any of the following before the earlier of an ECOM Takeover
or HC[Holding Company]/Investor [ECOM] Payoff, except with the prior written approval
of ECOM and, to the extent required in the [2013] Agreement, each Member, in each case:
...
(D) acquire or sell any substantial assets of [BK Funds] or cause [BK Funds] to acquire or
sell any substantial assets on behalf of [Promenade Holdings] unless the sale of such assets
is made contingent upon the completion of a prior or contemporaneous HC/Investor Payoff.
Pursuant to the 2016 Amendment,
HC/Investor Payoff means closing and funding of a purchase of all of ECOM’s
membership and other interests in [Promenade Holdings] pursuant to Section 3.7 of the
New [Promenade Holdings] Agreement.
Section 3.7 of the New Promenade Holdings Agreement provides, in part:
[BK Funds] shall have the right at any time to purchase all of [Promenade Holdings]
interests of [ECOM] by delivering written notice to [ECOM] and paying [ECOM] within
thirty days following the date of delivery of said written notice to [ECOM] (the
‘Repurchase Option Consummation Period’), a net purchase price equal to the total
[ECOM] Return Limit determined as of the date the prices is paid to [ECOM].
BKSI contends section 3.3.2 of the 2016 Amendment allowed it to cause BK Funds to sell the Promenade
Project without notice to or consent from ECOM because it paid off ECOM’s preferred equity interest upon
the completion of the sale. The trial court disagreed with BKSI’s interpretation of the various agreements
in granting ECOM’s motion for partial summary judgment on its breach of contract claim and in its finding
of fact that “[t]he 2016 Amendment was not intended by the parties to alter or eliminate [the requirement
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II. Sale of the Promenade Project
At various times from 2016 through early 2019, representatives of BKSI,
including Ron Beneke, Mark Beneke, Brian Beneke and John Krieg,4 approached
ECOM seeking its approval to sell the Promenade Project. Each time, ECOM
refused to approve a sale. In addition, on May 29, 2017, Ron Beneke asked ECOM
to consent to the sale of the Parkgates Project, a separate project in which BK Funds
had an ownership interest. ECOM was opposed to selling this project as well but,
as a compromise, consented to its sale with the understanding that the Promenade
Project would not be sold. In conjunction with the sale of the Parkgates Project,
ECOM executed a written consent authorizing the sale.
Notwithstanding ECOM’s desire to hold the Promenade Project as a longer-
term investment, BKSI marketed the Promenade Project for sale and sold the
property to Madera Residential (“Madera”) on October 28, 2019, for the sum of
$46,000,000. That afternoon, John Krieg emailed ECOM stating that the manager
of Promenade Holdings elected to exercise its right to sell the Promenade Project.
Prior to this email, ECOM had no notice or knowledge of the sale. ECOM notified
that the projects could not be sold, or even contracted to be sold, unless ECOM voted to approve such as
sale], and it did not do so.”
4
Ron Beneke and John Krieg were the initial representatives of BKSI. Around July 2017, Ron Beneke
was involved in an accident and his sons, Mark and Brian, took over many of the rights and responsibilities
related to his position with the company. Brian Beneke is an attorney licensed to practice in Texas and at
times acted as BKSI’s general counsel.
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BKSI that the sale of the Promenade Project was unauthorized and fraudulent and
that ECOM intended to file suit against BKSI.
III. The Lawsuit and Proceedings Leading to this Appeal
On November 7, 2019, ECOM exercised its right to remove BKSI as manager
of BK Funds and appointed itself as the manager of the fund. The following day,
ECOM filed suit against BKSI asserting claims of breach of contract, for selling the
Promenade Project without its consent and approval, and fraud, for concealing
information to induce ECOM to refrain from invoking its management takeover
rights. BKSI brought a third-party action against BK Funds seeking indemnification
under the 2013 Agreement.
On July 14, 2021, ECOM moved for partial summary judgment on its breach
of contract claim. On September 6, 2021, the trial court rendered an Interlocutory
Order Granting ECOM’s Motion for Partial Summary Judgment with respect to its
breach of contract claim, reserving the determination of damages at trial. The
contract damages and the remaining claims were tried to the court beginning on
September 21, 2021.
IV. Evidence Presented at Trial
At trial, ECOM presented evidence establishing that, in January 2018, after
Brian and Mark Beneke took over Ron Beneke’s position with BKSI, and when it
was apparent ECOM was not going to consent to the sale of the Promenade Project,
BKSI contacted outside legal counsel in an attempt to find a way to force the sale of
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the project without ECOM’s knowledge and consent. It is not apparent from the
record what advice was given, but it is clear that Brian Beneke, Mark Beneke, and
John Krieg wanted to keep ECOM from finding out about a sale so that it would not
invoke or exercise its right to remove BKSI as manager and assume the management
role.
Once BKSI decided to proceed with an actual sale of the Promenade Project,
without ECOM’s consent, steps were taken to keep the marketing and sale of the
project confidential in the hopes of avoiding an ECOM takeover. These steps
included (1) directing the real estate broker to sell the project “off market,” and to
keep “it confidential” and “not let it get out,” (2) making representations to ECOM
about deferred maintenance and capital expenditures that made it appear BKSI had
long-term plans for the project, and (3) sending ECOM reports, most of which
contained a section entitled “Management Discussion,” wherein BKSI routinely
noted the most significant developments concerning the Promenade Project. The
reports BKSI prepared in 2019 made no mention of a potential sale or marketing
efforts to sell the project. In fact, in the September 2019 report, which was delivered
to ECOM on October 11, 2019, almost two weeks before the sale was scheduled to
and did close, BKSI reported about trends at the Promenade Project that “are
expected to continue,” how it was “diligently work[ing] to remain competitive,” and
provided budget numbers for November and December 2019, without reflecting any
change or reduction in income or expenses, notwithstanding the anticipated sale of
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Promenade Holdings’ primary asset in October. As a result of BKSI’s
representations, ECOM believed that it was “business as usual” at the Promenade
Project.
As to ECOM’s assertion that it suffered damages as a result of the sale of the
Promenade Project, ECOM presented evidence that BKSI’s approach to selling the
Promenade Project varied markedly from its earlier approach to selling the Parkgates
Project and resulted in a purchase price that was below its fair market value. Stephen
D. DuPlantis, MAI, a certified general real estate appraiser retained by ECOM,
opined that the market value of the Promenade Project as of the closing date was
$50,510,000. ECOM’s representative, Bill Nabors, testified as a purported owner
of the Promenade Project, ECOM having taken over the management of BK Funds,
and opined that the fair market value of the property was at least in the range of
$51,727,031 to $54,600,755, if not higher.
V. Trial Court’s Determination and Judgment
On December 10, 2021, the trial court rendered judgment in favor of ECOM
on its fraud claim awarding it actual damages of $2,404,8845 and punitive damages
5
The trial court’s findings of fact indicate that the court determined the fair market value of the
Promenade Project at the time of the sale was $50,401,717, slightly less than the value ECOM’s expert
placed on the project, and that the court considered a loan prepayment penalty of $292,571 in calculating
ECOM’s damages. More particularly, subtracting the sales price of $46,000,000 from the fair market value
of $50,401,717 yielded a difference of $4,401,717. That difference plus the prepayment penalty of
$292,571 totaled $4,694,288. Applying ECOM’s 51.23% interest in BK Funds to that number brought
ECOM’s damages to $2,404,884.
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of $250,000. In the alternative, the trial court rendered judgment in favor of ECOM
on its breach of contract claim awarding it actual damages of $2,404,884. The trial
court also ordered that BKSI take nothing on its claim for indemnification against
BK Funds. No attorney’s fees were awarded because the 2013 Agreement did not
provide for such an award and no other basis existed to authorize an award of same.
At the request of BKSI, the trial court entered findings of fact and conclusions
of law. We will discuss those findings of fact and conclusions of law where relevant
to the resolution of the dispositive issues presented on appeal.
DISCUSSION
I. Fraud Claim and Application of Texas Law
We begin by addressing BKSI’s third issue challenging the trial court’s
conclusions that BKSI had a duty to disclose the sale of the Promenade Project and
“ECOM’s fraud claim is governed by the laws of the State of Texas.” BKSI claims
the trial court erred by declining to apply the 2013 Agreement’s Delaware choice-
of-law provision to ECOM’s fraud claim because the alleged omissions arise directly
from the contractual provisions of the 2013 Agreement, the injury ECOM asserts it
sustained under its breach of contract and fraud claims are the same, and the fraud
claim is inextricably intertwined with ECOM’s breach of contract claim. ECOM
responds, asserting its fraud claim is an independent cause of action that does not
fall within the scope of the 2013 Agreement’s choice-of-law provision and the
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economic loss rule does not preclude a recovery for fraud. Thus, claims ECOM, its
fraud claim is governed by, and viable under, Texas law.
A. Standard of Review
Determining which state’s substantive law governs a particular issue is
ultimately a question of law for the court to decide. Citizens Ins. Co. of Am. v.
Daccach, 217 S.W.3d 430, 440 (Tex. 2007). Therefore, we review the trial court’s
decision to apply Texas law in this case de novo. Sonat Expl. Co. v. Cudd Pressure
Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008); Stevenson v. Ford Motor Co., 608
S.W.3d 109, 116 (Tex. App.—Dallas 2020, no pet.).
B. Bases for ECOM’s Fraud Claim
We begin by considering the facts on which ECOM bases its fraud claim, as
reflected in the following trial court findings of fact:
 [BKSI], through acts and omissions, intentionally kept its plans and efforts to
sell the Promenade Project from ECOM so that ECOM would not exercise its
contractual right to unilaterally replace [BKSI] as manager of [BK Funds] or
otherwise take action to prevent the sale of the Promenade Project.
 In responding to inquiries from ECOM, [BKSI] intentionally omitted and
failed to tell ECOM that the reason [BKSI] was no longer planning to perform
certain repairs or improvements to the Promenade Project was because
[BKSI] planned to sell the property.
 [BKSI] intentionally misrepresented and misled ECOM about the future
business plans and expected financial performance for the Promenade Project.
 [BKSI’s] acts and omissions were intended to make ECOM believe that it was
“business as usual” at the Promenade Project, that there were no plans or
efforts to sell the Promenade Project, and to induce ECOM to rely on such
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misrepresentations or omissions such that it would not take steps that might
lead it to either discover or prevent the sale.
 ECOM relied to its detriment upon the fraudulent acts and omissions of
[BKSI].
As further support for these findings, the trial court made the following specific
findings:
 In early 2019, [BKSI] informed ECOM that in excess of $1,000,000 was
needed for deferred maintenance and additional capital expenditures for the
Promenade Project but, due to cash shortfalls, insufficient funds were
available to cover the expense.
 On April 24, 2019, ECOM inquired as to the status of the progress on the
deferred maintenance issues and, rather than disclose its decision to cease
making repairs and sell the Promenade Project, [BKSI] intentionally misled
ECOM by providing only partial information.
 [BKSI] informed ECOM that it only spent $81,200 to address “critical capital
issues;” that it did “not anticipate any critical repairs for the remainder of the
year;” some items could be “addressed at a future date;” and that it planned to
“hold off on” cleaning and repairing the gutters until a date “when the property
schedules a full landscaping package.”
 At the time it made the representations set for in the prior paragraph, [BKSI]
had already made the decision and started the process to sell the Promenade
Project without ECOM’s knowledge or consent.
 On April 18, 2019, Mark Beneke reached out to Chris Curry, a broker with
the firm of Holiday Fenoglio & Fowler (“HFF”), requesting an updated
broker’s opinion of value of the Promenade Project and providing financial
information to him.
 Mark Beneke told Chris Curry they wanted to sell the Promenade Project “off
market,” and that he was adamant about keeping “it confidential” and “this
not getting out.” He further instructed Mr. Curry to go only to a very small
number of potential buyers to start.
 [BKSI] [] signed a listing agreement with HFF effective April 29, 2019.
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 [BKSI] also provided monthly reports to ECOM in 2019, all of which failed
to disclose its plans and efforts to sell the Promenade Project.
 In its monthly reports provided to ECOM, [BKSI] provided detailed
information about budget variances, the balance sheet, the general ledger,
vendor aging report, rent rolls, expected future expenditures, and other
material information relating to the operations and performance of the
Promenade Project.
 Also included in almost every report is a section entitled “Management
Discussion,” wherein [BKSI] routinely noted the most significant
developments concerning the Promenade Project.
 The reports in 2019 made absolutely no mention of a potential sale, tours by
prospective buyers, letters of intent, repairs made to ready the property for
sale, or any other indications of a potential sale.
 For example, in the report covering September 2019, which was delivered on
October 11, 2019 - just over two weeks before the sale was scheduled to and
did close [BKSI] reported to ECOM about trends at the Promenade Project
that “are expected to continue,” how it was “diligently work[ing] to remain
competitive,” and still provided budget numbers for November and
December, 2019 without reflecting any change or reduction in income or
expenses for the final two months of the year.
 The budget in the reports covering August and September 2019 also included
payment of the mortgage through December 31, 2019, despite [BKSI’s]
knowledge that the mortgage would be fully repaid in late October due to the
sale of the property.
 At the time [BKSI] delivered the August and September 2019 reports to
ECOM, [BKSI] knew and expected that the Promenade Project would be sold
in October 2019 and that the budgets delivered to ECOM indicating continued
ownership and operation after that time were inaccurate and misleading.
 [BKSI’s] decision to conceal information and rush to a sale was meticulously
orchestrated to keep ECOM from taking steps to prevent a sale of the
Promenade Project until a date and upon terms of ECOM’ s choosing.
 [BKSI] admits it took steps to keep the transaction confidential from ECOM.
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 Brian Beneke, Mark Beneke, and John Krieg all discussed the importance of
making sure ECOM did not find out that [BKSI] was selling the Prominade
Project.
 They further agreed to take steps to make certain ECOM didn’t find out,
including, but not limited to: (1) targeted marking of the Promenade Project
to only a small, select number of prospective buyers; (2) unusually restrictive
confidentiality agreements signed by potential buyers; (3) requiring potential
buyers to only use the broker’s debt group for financing; (4) not booking past
due invoices from [the law firm of] Thompson Knight on the general ledger
so that they wouldn’t appear on the monthly accounts payable reports sent to
ECOM[, which might have raised a red flag]; and (5) instructing the title
company that closed the sale not to contact ECOM.
 [BKSI] knew that the quicker it could sell the Promenade Project, the greater
the chances it could successfully close a sale without ECOM finding out.
It is in the context of these findings regarding the bases for ECOM’s fraud
claim that we initially consider the threshold question of whether ECOM’s fraud
claim falls within the scope of the 2013 Agreement’s choice-of-law provision.
C. Contractual Choice-of-Law Provision
Section 13.5 of the 2013 Agreement, titled Governing Law, provides:
This LLC Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Delaware,
without regard to any principles of conflicts of law that would result in
the application of the laws of any other jurisdiction.
The scope of this choice-of-law provision is narrow. It does not purport to
encompass all disputes between the parties or to encompass tort claims. See Stier v.
Reading & Bates Corp., 992 S.W.2d 423, 433 (Tex. 1999) (concluding a Texas
choice-of-law provision that applied to the interpretation and enforcement of the
injured seaman’s employment contract did not entitle him to assert his tort claims
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under Texas law because they did not rise or fall on the interpretation and
enforcement of any contractual provision); Red Roof Inns, Inc. v. Murat Holdings,
L.L.C., 223 S.W.3d 676, 684 (Tex. App.—Dallas 2007, pet. denied) (agreement
providing it would be “interpreted, construed and enforced” according to Ohio law,
did not require application of Ohio law to statutory and tort claims); see also
Benchmark Elecs., Inc. v. J.M. Huber Corp., 343 F.3d 719, 726–27 (5th Cir.
2003) (holding that, when agreement’s choice-of-law provision stated that “[the]
Agreement shall be governed by, and construed in accordance with, the internal laws
of the State of New York,” agreement would be construed under New York law, but
plaintiff’s tort claims would be governed by Texas law).
As to BKSI’s assertion that ECOM’s fraud claim is inextricably intertwined
with a substantive issue of contractual liability, and thus falls within the reach of the
2013 Agreement’s choice-of-law provision, we disagree.6 ECOM’s fraud claim
arises from BKSI’s misrepresentations and misleading statements concerning the
future business plans and expected financial performance for the Promenade Project,
6
In making this assertion, BKSI relies on Midwest Med. Supply Co., L.L.C. v. Wingert, 317 S.W.3d
530, 537 (Tex. App.—Dallas 2010, no pet.), and Fairmont Supply Co. v. Hooks Indus., Inc., 177 S.W.3d
529, 535–36 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). The issue presented in those cases was
whether a claim for attorney’s fees was inextricably intertwined with the breach of contract claim such that
it would fall within the purview of a choice-of-law provision governing the breach of contract claim. Those
cases are inapposite to this case as the issue presented here does not concern an award of attorney’s fees in
connection with a breach of contract claim governed by a choice-of-law provision.
In addition, BKSI asserts the fact that the damages claimed for both ECOM’s breach of contract and fraud
claims are the same demonstrates the claims are inextricably intertwined. But Texas allows for the recovery
of economic losses for fraud. See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 306 (Tex. 2006);
Formosa Plastics Corp. USA v. Presidio Eng’rs and Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998).
Thus, like damages alone, does not transform ECOM’s fraud claim into a breach of contract claim.
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and its failure to disclose significant developments concerning the Promenade
Project when it voluntarily ventured to do so.7 ECOM’s fraud claim does not rise or
fall on the interpretation and enforcement of any contractual provision. Thus, the
choice-of-law provision in the 2013 Agreement does not dictate the application of
Delaware law to ECOM’s fraud claim. Therefore, we must determine whether a
conflict in laws exists, and if so, whether Texas law applies under the “most
significant relationship” test. Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421
(Tex. 1984) (except when a contract with a valid choice-of-law clause applies, Texas
courts apply the substantive law of the state with the most significant relationship to
the particular dispute at issue).
D. Choice of Law
We review a trial court’s determination as to which state’s law applies and
undertake a choice-of-law analysis only if a conflict of law exists that impacts the
resolution of an issue. Toyota Motor Co. v. Cook, 581 S.W.3d 278, 283 (Tex.
App.—Beaumont 2019, no pet.) (citing Duncan, 665 S.W.2d at 419).
7
Article IX of the 2013 Agreement, titled “BOOKS, RECORDS AND INFORMATION; FINANCIAL
MATTERS,” only required BK Funds to maintain books and records and to deliver information that a
Member reasonably requests for the purpose of enabling it to comply in a timely manner with any reporting
or filing requirements imposed by statute, rule, regulation or otherwise. Thus, BKSI, as manager of BK
Funds, was under no contractual obligation to provide monthly reports to the members. The 2016
Amendment did not amend Article IX of the 2013 Agreement. With respect to the 2016 amendment to
Promenade Holdings’ operating agreement, BK Funds, as manager, (1) on a monthly basis, was to provide
the members a report setting forth the receipts and expenditures of the company, a current rent roll, evidence
of payment of the Mortgage Loan, and statements of disbursement from any reserves or escrows held by
the Mortgage Lender, (2) on a quarterly basis, was to provide the members financial statements, (3) on a
annual basis, was to provide the members with a balance sheet, a capital account statement, statements of
net cash flow and capital proceeds, and a profit and loss statement, and (4) from time to time, was to provide
information concerning the company and its business and affairs reasonably requested by a member.
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BKSI contends an actual conflict exists between the laws of Delaware and the
laws of Texas with respect to ECOM’s fraud claim.8 ECOM contends no conflict
exists. To the extent there may be a conflict between Delaware and Texas law that
impacts the resolution of ECOM’s fraud claim, we conclude, as more fully explained
herein, the trial court did not err in concluding the laws of Texas, not Delaware,
apply to that claim.
In determining choice-of-law issues, Texas courts apply the “most significant
relationship” test outlined in sections 6 and 145 of the Restatement (Second)
Conflicts of laws. Duncan, 665 S.W.2d at 420–21. Section 145 directs that the law
of the state with the most significant relationship to the particular issue in tort should
govern that issue. RESTATEMENT (SECOND) CONFLICTS OF LAWS § 145 (1971). That
section lists factual matters to be considered when applying the principles of section
6 to a given case. Id. § 145(2). Section 6 requires us to consider the relative interests
of the respective states in having their laws applied to the case.9 Id. § 6. In addition
8
Citing to EZLinks Golf, BKSI asserts that under Delaware law a fraud claim (1) is improper if it is a
mirror image of a breach of contact claim, which we have determined is not the case here, and (2) fails if
the damages are not separate from the breach of contract damages. EZLinks Golf, LLC f. PCMS Datafit,
Inc., No. N16C-07-080, 2017 WL 1312209, at *6–7 (Del. Super. Ct. Mar. 13, 2017).
9
Under section 6, the factors to be considered include:
(a) the needs of the interstate and international systems,
(b) the relevant policies of the forum,
(c) the relevant policies of other interested states and the relative interests of those states in the
determination of the particular issue,
(d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law,
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to sections 6 and 145, the Restatement (Second) Conflicts of Laws also
contains sections addressing specific torts. When a specific section of the
Restatement (Second) Conflicts of Laws applies, courts are to apply that section to
resolve the conflict. Id. § 145, cmt. a.;10 see also Hughes Wood Prods., Inc. v.
Wagner, 18 S.W.3d 202, 205 (Tex. 2000); Grant Thornton LLP v. Suntrust Bank,
133 S.W.3d 342, 358 (Tex. App.—Dallas 2004, pet. denied).
Section 148 of the Restatement (Second) Conflicts of Laws addresses claims
related to the torts of fraud and misrepresentation. It provides, in relevant part, that
when a plaintiff has suffered pecuniary harm as a result of its reliance on a
defendant’s false representations and when the plaintiff’s reliance took place in the
state where the false representations were made and received, the local law of this
state determines the rights and liabilities of the parties unless, with respect to the
particular issue, some other state has a more significant relationship under the
principles stated in section 6 to the occurrence and the parties, in which event the
local law of the other state will be applied. RESTATEMENT (SECOND) CONFLICTS OF
LAWS § 148(1). Thus, if the representations were made and received in the same
(f) certainty, predictability and uniformity of result, and
(g) ease in the determination and application of the law to be applied.
Id. § 6.
10
Comment a of section 145 states that Title B (sections 146–155) “deals with particular torts to which
it is possible to state rules of great precision.” Id. § 145, cmt. a. This comment concludes that “the best
way to bring precision into the field is by attempting to state specific rules for particular torts and for
particular issues in tort.” Id.
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state and the plaintiff’s reliance occurred in that state as well, section 148(1) creates
a presumption for the application of that state’s law. See id.; see also Vanderbilt
Mortg. & Fin., Inc. v. Posey, 146 S.W.3d 302, 315 (Tex. App.—Texarkana 2004, no
pet.).
We evaluate the substantive issues presented to determine which factors are
to be considered in determining which state has the most significant relationship.
Duncan, 665 S.W.2d at 421. Here, the substantive issues with respect to ECOM’s
fraud claim were whether BKSI knowingly and intentionally concealed from or
failed to disclose pertinent information to ECOM and knowingly and intentionally
misrepresented to ECOM the on-going and expected business and financial
developments, initiatives, issues, decisions, and operations of the Promenade
Project.
To the extent ECOM’s fraud claim is based upon a failure to disclose, rather
than an affirmative misrepresentation, we apply the factors listed in section 145 of
the Restatement (Second) Conflicts of Laws, the general tort section. The factors
under section 145 include (a) the place where the injury occurred; (b) the place where
the conduct causing the injury occurred; (c) the domicile, resident, nationality, place
of incorporation and place of business of the parties; and (d) the place where the
relationship, if any, between the parties is centered. RESTATEMENT (SECOND) OF
CONFLICTS OF LAWS § 145(2)(a)–(d). All of these factors indicate that application
of Texas law to ECOM’s fraud by non-disclosure claim was proper. All of the
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parties to the dispute are located in Texas, the conduct occurred in Texas, and the
relationship and the subject of the dispute are located in Texas.
To the extent ECOM’s fraud claim is based upon false representations, we
apply section 148(1) of the Restatement (Second) Conflicts of Laws, the fraud and
misrepresentation section. As stated supra, when a plaintiff has suffered pecuniary
harm as a result of its reliance on a defendant’s false representations and when the
plaintiff’s reliance took place in the state where the false representations were made
and received, the local law of this state determines the rights and liabilities of the
parties unless, with respect to the particular issue, some other state has a more
significant relationship under the principles stated in section 6 to the occurrence and
the parties, in which event the local law of the other state will be applied. Id.
§ 148(1). Here, the representations were made and received in Texas and ECOM’s
reliance upon same occurred in Texas as well.11 Thus, pursuant to section 148(1),
Texas law is presumed to apply to ECOM’s fraud claim unless Delaware has a more
significant relationship under the principles of section 6 to the occurrence and the
parties.
The factors to be considered under section 6(2) of the Restatement (Second)
Conflicts of Law include the relevant policies of the forum and other interested states
in determining the particular issue, the protection of justified expectations, the basic
11
The record establishes that ECOM and BKSI maintained their principal offices or places of business
in Dallas, Texas and that the Promenade Holdings’ monthly operating reports were prepared at B/K
Multifamily Services LLC offices located at 1320 Greenway Drive, Suite 720 Irving, Texas 75038.
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policies underlying the particular field of law, certainty, predictability and
uniformity of result, and ease in the determination and application of the law to be
applied. Id. § 6(2). These policies are to be evaluated according to their relative
importance with respect to the particular issue.
“Frequently, it will be possible to decide a question of choice of law in tort
without paying deliberate attention to the purpose sought to be achieved by the
relevant tort rules of the interested state. This will be so whenever by reason of the
particular circumstances one state is obviously that of the applicable law.” Id. § 145,
cmt c. Such is the case here. We note that the state where all interested persons are
domiciled will usually have the greatest interest in determining the extent to which
an injured party is compensated. Stevenson v. Ford Motor Co., 608 S.W.3d 109,
129 (Tex. App.—Dallas 2020, no pet.). Here, the interested persons are domiciled
in Texas, and Texas has a strong policy interest in protecting its residents to allow
for recovery of adequate compensation for torts committed against them. Id. at 128;
see also RESTATEMENT (SECOND) CONFLICTS OF LAWS § 146, cmt. d. Nothing in the
record demonstrates that Delaware has a more significant relationship to the
occurrence and the parties at issue. Any connection this case has to Delaware is
tangential at best and is the result of BK Fund being organized under the laws of the
state of Delaware. Consequently, Delaware has only a minimal interest in having
its law apply to the fraud claim and Texas has a considerable interest in having its
law apply. See, e.g., GW Equity LLC v. Xcentric Ventures LLC, 3:07-CV-976-O,
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2009 WL 10704331, at *3 (N.D. Tex. Mar. 25, 2009). Thus, Texas has the most
significant relationship to ECOM’s fraud claim. Consequently, the trial court did
not err in concluding Texas law applies to ECOM’s fraud claim.
E. Duty to Disclose
BKSI contends that, even under Texas law, the trial court erred in finding it
had a duty to disclose (1) it was marketing and planning on selling the Promenade
Project, (2) it was not proceeding with certain repairs or improvements to the
property because of its plans to sell the property, (3) it entered into letters of intent
to sell the Promenade Project, (4) it contracted to sell the Promenade Project, and
(5) it expected to sell the Promenade Project before the end of October 2019, because
there was no evidence of an extra-contractual duty to disclose. The existence of a
duty to disclose is a matter of law for the court to decide. Bradford v. Vento, 48
S.W.3d 749, 755 (Tex. 2001); Myre v. Meletio, 307 S.W.3d 839, 843 (Tex. App.—
Dallas 2010, pet. denied). A duty to disclose may arise (1) when the parties have a
confidential or fiduciary relationship,12 (2) when one party voluntarily discloses
information, which gives rise to the duty to disclose the whole truth, (3) when one
party makes a representation, which gives rise to the duty to disclose new
information that the party is aware makes the earlier representation misleading or
12
The 2013 Agreement disclaimed a fiduciary relationship of the parties except for those specifically
set forth in the agreement. Section 1101(c) of the Delaware Limited Liability Act empowers the drafters
of a limited liability company to expand, restrict, or eliminate a member or manager’s duties, including
fiduciary duties. DEL. CODE ANN. tit. 6, § 1101(c).
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untrue, or (4) when one party makes a partial disclosure and conveys a false
impression, which gives rise to a duty to speak. Bombardier Aerospace Corp. v.
SPEP Aircraft Holdings, LLC, 572 S.W.3d 213, 220 (Tex. 2019); K.A. West, LLC v.
GK Invs., Inc., No. 05-11-00617-CV, 2013 WL 5270861, at *3–4 (Tex. App.—
Dallas Sept. 17, 2013, no pet.) (mem. op.).
BKSI does not dispute that it made the representations that are the bases for
ECOM’s fraud claim or that it failed to disclose its plan to sell the Promenade
project. BKSI disclosed certain facts to ECOM regarding the Promenade Project’s
status and operating condition, creating the false impression that it intended to
continue operating the project as a long-term investment, and thus obligated BKSI
to disclose the “whole truth” concerning the project, specifically the approaching
sale of the project to Madera. Bombardier, 572 S.W.3d at 220; Mundheim v. Lepp,
No. 05-19-01490-CV, 2021 WL 1921122, at *5 (Tex. App.—Dallas May 13, 2021,
pet. denied) (mem. op.); see also White v. Pei, 452 S.W.3d 527, 538 (Tex. App.—
Houston [14th Dist.] 2014, no pet.) (shareholders who informed other shareholders
regarding status and operating conditions of company, but failed to disclose an asset
purchase agreement, “create[ed] the impression that [the company] was a going
concern, which was not true, and thus obligated [the shareholders] to disclose the
‘whole truth’ concerning the company, specifically the approaching sale of its assets
and business . . .”). Accordingly, BKSI’s challenge to the trial court’s finding of a
duty to disclose is without merit.
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F. Exemplary Damages
BKSI also contends the trial court erred in awarding ECOM exemplary
damages based on BKSI’s alleged bad faith. Exemplary damages may be awarded
for fraud. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 306 (Tex. 2006).
The trial court expressly found, “that ECOM is entitled to an award of exemplary
damages arising from the clear and convincing evidence of [BKSI’s] fraud.” It did
not state exemplary damages were being awarded on the basis of BKSI’s bad faith.
Consequently, we conclude the trial court did not err in awarding ECOM exemplary
damages on its fraud claim.
We overrule BKSI’s third issue challenging the trial court’s findings on
ECOM’s fraud claim. Because ECOM’s fraud claim afforded it the most favorable
relief, we need not consider BKSI’s first and second issues challenging the trial
court’s grant of summary judgment on ECOM’s breach of contract claim and
findings (1) the 2016 Amendment did not alter the requirement that the Promenade
project could not be sold, or even contracted to be sold, unless ECOM voted to
approve such as sale and (2) BKSI breached an implied duty of good faith and fair
dealing. See TEX. R. APP. P. 47.1; Tony Gullo, 212 S.W.3d at 304 (party entitled to
judgment on most favorable theory supported by pleadings, evidence, and
judgment); Michael Smith Custom Clothier, Inc. v. Constantini, No. 14-09-01089-
CV, 2011 WL 826350, at *6 (Tex. App.—Houston [14th Dist.] March 10, 2011, no
pet.) (mem. op.) (court need not consider challenges to alternative theories of
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recovery if one theory is supported). We overrule BKSI’s first and second issues as
moot.
II. Damages
In its fourth issue, BKSI urges the damages awarded were based upon
fundamentally unreliable expert testimony as to the fair market value of the
Promenade Project at the time of the sale. In addition, BKSI asserts the trial court
erred in permitting ECOM’s representative, Bill Nabors, to testify as to the fair
market value of the project under the “property owner rule” because, so claims
BKSI, Nabors did not qualify as a property owner due to his distant role with respect
to the Promenade Project and his lack of actual knowledge. ECOM contends BKSI
waived its complaint regarding the testimony of Stephen DuPlantis and Nabors
because it failed to timely object to their testimony pursuant to the parties’ Agreed
Amended Uniform Scheduling Order and stipulated to the admission of DuPlantis’s
report and Nabors’ declaration containing their opinions as to the fair market value
of the Promenade Project.
According to the scheduling order signed on January 20, 2021, “[a]ny
objection or motion to exclude or limit expert testimony due to the qualification of
the expert or the reliability of the opinions must be filed no later than fourteen (14)
days after the close of expert discovery, or such objection is waived.” BKSI failed
to timely object to DuPlantis’ and Nabors’ testimony based on the reliability of their
opinions and, therefore, has waived any such objection on appeal. See Lone Star
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Engine Installation Center, Inc. v. Gonzales, No. 05-14-01616-CV, 2016 WL
2765079, at *9 (Tex. App.—Dallas May 11, 2016, pet. denied) (mem. op.) (trial
court ordered all motions to exclude or limit expert testimony be filed by a certain
date or objections would be waived. Appellants failed to timely object to witnesses’
testimony as expert witnesses, and, therefore, waived objections on appeal).
Because BKSI waived its complaint by failing to comply with the scheduling order,
we need not determine whether BKSI’s stipulation regarding the admissibility of the
report and declaration likewise precludes BKSI’s argument concerning the
reliability of the fair market value opinions on appeal. TEX. R. APP. P. 47.1. We
overrule BKSI’s fourth issue.
III. Indemnification
Finally, BKSI conditionally requests that this Court reverse the trial court’s
ruling on its indemnification claim against BK Funds and remand for further
proceedings. BKSI’s request is conditioned upon Court resolving the underlying
liability issues in its favor.
Pursuant to section 11.3 of the 2013 Agreement, BKSI was not entitled to
indemnification if it suffered a loss, claim, damage, liability, judgment or expense
as a result of its “Material Misconduct.” Under the agreement, Material Misconduct
means:
[W]ith respect to a Covered Person, gross negligence, willful
misconduct, fraud, the commission of a felony, any misappropriation
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or intentional misapplication of funds of the Company or a Subsidiary,
or any material breach of an express provision of this agreements.
(emphasis added). Because we affirm the trial court’s judgment on ECOM’s fraud
claim and fraud constitutes “Material Misconduct,” obviating any right to
indemnification, BKSI’s conditional request is denied.
CONCLUSION
We affirm the trial court’s judgment in favor of ECOM on its fraud claim
and against BKSI on its claim for indemnification.
/Nancy Kennedy/
NANCY KENNEDY
JUSTICE
220115F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
B/K SERIES INVESTORS, LLC, On Appeal from the 134th Judicial
Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-19-17984.
No. 05-22-00115-CV V. Opinion delivered by Justice
Kennedy. Justices Carlyle and
ECOM SERIES INVESTORS, LLC, Goldstein participating.
Appellee
In accordance with this Court’s opinion of this date, the trial court’s
judgment in favor of ECOM Series Investors, LLC on its fraud claim and against
B/K Series Investors, LLC on its claim for indemnification is AFFIRMED.
It is ORDERED that appellee ECOM SERIES INVESTORS, LLC recover
its costs of this appeal from appellant B/K SERIES INVESTORS, LLC.
Judgment entered this 7th day of April 2023.
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