Court of Appeals of Texas, Seventh District, Amarillo
RICHARD W. OPPERMAN, JR., APPELLANT
RANDAL SCOTT OPPERMAN AND LORRI OPPERMAN, APPELLEES
On Appeal from the 236th District Court Tarrant County, Texas Trial Court No.236-242458-09, Honorable Tom Lowe, Presiding
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Patrick A. Pirtle Justice
Richard W. Opperman, Jr., Appellant, appeals the entry of an order granting a take-nothing summary judgment in favor of Randal Scott Opperman and Lorri Opperman, Appellees, on Appellant's breach of fiduciary duty claim. Stated in five issues, Appellant asserts the trial court erred by denying (1) his motion to continue the summary judgment hearing and (2) his opportunity to cure any defects in the form of his summary judgment evidence. He also contends (3) Appellees' objections to the form of his summary judgment evidence were waived, and the trial court erred in granting Appellees' (4) traditional and (5) no-evidence motion for summary judgment. We affirm in part and reverse in part the trial court's order granting summary judgment and remand this case for further proceedings consistent with this opinion.
Opperman Electric Company, Inc. ("Opperman Electric") is a closely-held Texas corporation, originally incorporated in September 1986. Its initial Directors were Richard W. Opperman, Sr., Richard W. Opperman, Jr., and Randal Scott Opperman. Randal Scott Opperman was elected to serve as President, and his wife, Lorri Opperman, was elected to serve as Secretary. Appellant was elected to serve as Vice-President. The parties originally agreed that Randal Scott Opperman would own ninety percent of the outstanding shares (900 shares) and Appellant, his brother, would own the remaining ten percent (100 shares). According to Appellant, the parties also agreed that all corporate income would be distributed according to their ownership interests. Although Appellant and Appellees continued to serve in their respective capacities as officers and directors from the corporation's inception until it was sold to a third party on May 30, 2008, in 2009 a dispute arose as to whether their ownership interests had changed. Appellant contends he still owned a ten percent interest in the corporation at the time of sale, whereas Appellees contend Appellant effectively sold his shares to Randall Scott Opperman in 2002.
As a result of this dispute, Appellant filed suit against Appellees in December 2009, contending their conduct as corporate officers and directors breached fiduciary duties owed by them to the corporation and to Appellant. Specifically, Appellant alleged the 2008 sale of the corporation to a third party was "unfair" and "inequitable, " and he sought both an accounting and damages representing ten percent of the corporation's net income from 1986 through 2008. In support of his claim of unfair dealings, Appellant alleged that in April 2008, just prior to the sale of the corporation, Appellees demanded he sign documents that inaccurately reflected a transfer of his ten percent interest in the corporation to Randal Scott Opperman in May 2002. Appellant sought "actual damages, " including mental anguish, exemplary damages, disgorgement of profits, interest, court costs and attorney's fees.
In July 2011, more than a year and one-half after suit was filed, Appellees filed both a Traditional and No-Evidence Motion for Summary Judgment asserting there was no evidence of an essential element of Appellant's breach of a fiduciary duty claim, to-wit: that Appellant still owned an interest in the corporation and that, as a result thereof, they owed him any fiduciary duty. They also sought summary judgment on a variety of affirmative defenses including limitations, lack of standing, waiver, laches and quasi-estoppel. On August 12, 2011, Appellant filed a motion to continue the summary judgment hearing set for September 2 until October 14, the discovery cutoff date. Appellant's counsel asserted, via affidavit, that additional time was needed to secure documentary evidence regarding the sale of Opperman Electric in 2008, and to depose the new owners and Appellees. The trial court denied the motion for continuance and Appellant timely responded to Appellees' motion for summary judgment.
On September 2, the day of the summary judgment hearing, Appellees filed objections to Appellant's summary judgment evidence alleging his exhibits had not been properly authenticated, contained hearsay and were conclusory. On September 8, without expressly ruling on Appellees' objections and without specifying the basis for the summary judgment ruling, the trial court issued its order stating, in pertinent part, the following:
Upon consideration of [Appellees' motion], the response, the reply, and the evidence submitted, and after hearing arguments of counsel, the Court is of the opinion that Defendants' . . . Motion for Summary Judgment should be GRANTED.
IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that Defendants' . . . Motion for Summary Judgment is hereby GRANTED and that all of Plaintiff's claims asserted against Defendants in the above-numbered cause are hereby DISMISSED WITH PREJUDICE to the refilling of same.
Appellant now seeks to set aside that order.
Because we find issues three, four and five to be dispositive of this appeal, we pretermit issues one and two, and begin our discussion with issue three. See Tex. R. App. P. 47.1. ...