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E-Learning LLC v. AT&T Corp.

Court of Appeals of Texas, Fourth District, San Antonio

March 1, 2017

E-LEARNING LLC, Grant Business Development Group, Inc., and Roger Grant and Judith
v.
AT&T CORP., and AT&T Services, Inc., Appellees Grant, d/b/a Business Development Group, Appellants

         From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2014-CI-10500 Honorable Laura Salinas, Judge Presiding

         AFFIRMED

          Sandee Bryan Marion, Chief Justice Karen Angelini, Justice Irene Rios, Justice

          OPINION

          Karen Angelini, Justice

         E-Learning LLC, Grant Business Development Group Inc., and Roger Grant and Judith Grant d/b/a Business Development Group (collectively, "BDG") appeal from a take-nothing judgment on their claims against AT&T Corporation and AT&T Services, Inc. (collectively "AT&T") for breach of contract, quantum meruit, breach of fiduciary duty, negligent misrepresentation, fraud, and fraud by nondisclosure. On appeal, BDG challenges the trial court's evidentiary and summary judgment rulings. We affirm.

         Factual and Procedural Background

         BDG, a business principally owned and operated by Roger Grant and his wife, Judith Grant, is involved in software design, computer programming, data processing, and systems management. BDG contends it provided services to AT&T in 2013. BDG demanded payment for these services, but AT&T refused payment, claiming that it had never contracted with BDG for the services in question. In response, BDG filed the underlying suit for damages.

         In its petition, BDG alleged that its business relationship with AT&T began in 2004. For the next five years, the parties' business relationship was governed by a master agreement, which established a vendor relationship that required approved statements of work and invoicing. Beginning in 2010, the parties changed the way they transacted business and BDG developed a course of dealing with AT&T. From 2010 to 2012, BDG provided goods and services to AT&T on three projects. On these projects, which BDG refers to as the Bishop projects, BDG dealt exclusively with Analisa Bishop, an AT&T employee and project manager. Each time, Bishop contacted Grant to solicit proposals from BDG without a formal agreement or work order. Bishop informed BDG of any modifications required on these projects and made decisions on behalf of AT&T. Two of these projects required AT&T to work through a third-party vendor.

         BDG's petition further alleged that in April 2013 Bishop met with Grant to discuss a new project, the Interactive Applications Simulations ("IAS") project. The project called for the creation of computer applications that AT&T could use in training its employees. In May and early June of 2013, Grant, Bishop, and several other AT&T employees met to discuss the IAS project. Bishop asked Grant to develop a proposal for the IAS project. On June 10, 2013, BDG submitted to Bishop a written proposal for the IAS project. After receiving additional feedback from Bishop, BDG amended its written proposal and submitted the amended proposal to Bishop. BDG then began to work on the project. In July and August 2013, Bishop and Grant continued to exchange emails concerning the IAS proposal.

         Finally, according to BDG's petition, on September 17, 2013, Bishop sent Grant an email advising him that funding for the IAS project was not available from one of AT&T's departments. On October 9, 2013, Grant presented an invoice to AT&T for one-half the amount shown on the proposal BDG had submitted to AT&T. On October 30, 2013, Bishop and another AT&T employee called Grant to inform him that AT&T had elected to do something else internally and that AT&T would not pay the invoice because AT&T had never signed a proposal. On November 13, 2013, Grant received an email from another AT&T employee advising him that AT&T did not agree to pay for BDG's work and no contract existed. On January 29, 2014, BDG made a formal demand for payment. Again, AT&T refused payment. Based on these factual allegations, BDG asserted claims for breach of contract, quantum meruit, breach of fiduciary duty, negligent misrepresentation, fraud, and fraud by nondisclosure.

         AT&T answered BDG's suit. After conducting discovery, AT&T filed a motion for traditional and no-evidence summary judgment on all of BDG's claims. AT&T attached evidence to its summary judgment motion. BDG responded to the summary judgment motion and submitted evidence in support of its response. AT&T objected to BDG's summary judgment evidence. The trial court sustained some of AT&T's objections and excluded some of BDG's summary judgment evidence. The trial court granted AT&T's summary judgment motion and rendered judgment that BDG take nothing on its claims. BDG filed two motions for new trial, which the trial court denied. BDG then filed this appeal.

         Evidentiary Rulings

         After sustaining AT&T's objections, the trial court excluded (1) Grant's affidavit; (2) a document entitled "Training Material and Service Agreement;" and (3) BDG's answers to interrogatories. On appeal, BDG contends the trial court abused its discretion in sustaining AT&T's objections to BDG's summary judgment evidence.

         We review a trial court's ruling on objections to summary judgment evidence for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Doncaster v. Hernaiz, 161 S.W.3d 594, 601 (Tex. App.-San Antonio 2005, no pet.). A trial court abuses its discretion if its ruling is arbitrary or unreasonable or without reference to any guiding rules and principles. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).

         Grant's Affidavit

         AT&T objected to Grant's affidavit, claiming it was a sham affidavit made to avoid summary judgment. BDG first argues that AT&T's objection to Grant's affidavit was deficient because it neglected to point to any statement in the affidavit directly contradicting Grant's deposition testimony. BDG fails to cite any authority to support this argument. In the absence of citations to legal authority, BDG's argument is inadequately briefed and presents nothing for our review. See Tex. Rule App. P. 38.1(i) (providing that an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citation to authorities and to the record."); In re Estate of Valdez, 406 S.W.3d 228, 235 (Tex. App.-San Antonio 2013, pet. denied) (concluding issue was inadequately briefed under Rule 38.1(i) and therefore waived).

         BDG next argues that Grant's affidavit could not be categorized as a sham affidavit because it is consistent with his deposition testimony. BDG contends that Grant's affidavit "does not contradict his deposition testimony or assert that AT&T provided formal approval of the IAS [p]roposal;" rather, Grant's affidavit "explains that AT&T's practice under the Bishop [p]rojects did not require formal written approval of a BDG [p]roposal." BDG further contends that "no substantive differences can be found and no direct contradictions or even significant variations of degree exist."

         When a summary judgment affidavit is executed after a witness's deposition and there is a clear contradiction on a material point without an explanation for the change, the affidavit merely creates a sham fact issue. First State Bank of Mesquite v. Bellinger & Dewolf, LLP, 342 S.W.3d 142, 147-48 (Tex. App.-El Paso 2011, no pet.) (holding trial court could have concluded affidavit was a sham when witness stated in his deposition that a lending decision had already been made by 2/11/04, but stated in his affidavit that it was made after 2/11/04); Pando v. Sw. Convenience Stores, L.L.C., 242 S.W.3d 76, 79-80 (Tex. App.-Eastland 2007, no pet.) (holding trial court could have concluded affidavit was a sham when the party stated in his deposition that he showed no signs of intoxication, but stated in his affidavit that he was slurring his words, had bloodshot eyes, and was staggering); Farroux v. Denny's Rest., Inc., 962 S.W.2d 108, 111 (Tex. App.- Houston [1st Dist.] 1997, no pet.) (concluding affidavit was a sham when the party stated in his deposition that a doctor did not tell him why he was ill and that he did not remember any doctor telling him that the food he ate at the restaurant made him ill, but said in his affidavit that his doctor told him his illness was food poisoning).

         In determining whether a witness's affidavit creates a sham fact issue, courts examine the nature and extent of the differences of the facts asserted in the deposition and the affidavit. Cantu v. Peacher, 53 S.W.3d 5, 10 (Tex. App.-San Antonio 2001, pet. denied). "If the differences fall into the category of variations on a theme, consistent in the major allegations but with some variances of detail, this is grounds for impeachment, and not a vitiation of the later filed document." Id. at 10. "If, on the other hand, the subsequent affidavit clearly contradicts the witness's earlier testimony involving the suit's material points, without explanation, the affidavit must be disregarded and will not defeat the motion for summary judgment." Id. at 10-11. In making this determination, courts consider the allegations in the petition, the deposition, and the affidavit. See id.

         In his deposition, Grant testified that when he submitted the IAS proposal to Bishop in June 2013, AT&T was not bound to accept it. In fact, Grant went on to testify in his deposition that AT&T never became bound to go through with the project or to accept the proposal and go through with the project. According to Grant's deposition testimony, AT&T did not accept the proposal and go through with the project, and AT&T did not agree to accept the project and for Grant to start working on it. Grant also testified that he understood that Bishop needed to obtain "buy-in" from other individuals at AT&T and that Bishop needed approval from other individuals at AT&T before she could accept any proposal for work he was going to do. Grant testified that he knew this proposal had to be approved by other individuals at AT&T just "as it always had in the past." Grant further testified that he called Bishop frequently to see if there was any "movement" on this front. In addition, Grant testified that he was hoping that Bishop would ultimately convince her superiors to approve the IAS project and to pay him for the work he was going to do. Finally, Grant testified that BDG had only completed about half of the IAS project.

         In his affidavit, Grant stated that he "understood that there was a contract/agreement wherein BDG was to develop the IAS application to be used by AT&T and AT&T agreed in fact to compensate BDG for goods, development, production and services, provided by BDG in the amount of $158, 000.00." Grant also stated that, as was the case for the prior Bishop projects, there was no formal approval process for the IAS proposal. Grant further stated that on the prior Bishop projects Bishop had "made all pertinent decisions on behalf of AT&T" and "all contract details and scope of work requirements and funds [had been] directed through Bishop." Additionally, in his affidavit, Grant stated that he believed that payment would be made for the services and work BDG provided on the IAS project without a formal agreement because payment had been made without such an agreement in the past. Finally, according to Grant's affidavit, BDG had "substantially performed all of its agreed upon obligations" under the parties' contract.

         We now consider the nature and the extent of the differences of the facts asserted in the deposition and the affidavit. In his deposition, Grant repeatedly testified that AT&T never agreed to accept the proposal; however, in his affidavit, Grant stated that the parties had entered into a contract regarding the IAS project. In his deposition, Grant testified that he knew that the IAS proposal had to be approved by Bishop's superiors "as it always had in the past." On the other hand, in his affidavit, Grant indicated that Bishop had made all pertinent decisions on behalf of AT&T and directed contract details. In his deposition, Grant testified that payment was uncertain: Grant was hoping that Bishop would ultimately convince her superiors to approve the IAS project and to pay him for the work he was going to do. By contrast, in his affidavit, Grant stated that BDG's compensation was certain: BDG was entitled to compensation under the terms of the parties' agreement. Finally, in his deposition, Grant stated that BDG had only completed about half of the IAS project. However, in his affidavit, Grant stated that BDG had substantially performed all of its obligations on the IAS project.

         We conclude that the differences between Grant's deposition testimony and his affidavit are not mere variations on a theme or variances in detail. Grant's affidavit clearly contradicted his earlier testimony on the suit's material points and the contradictions were not explained. Because Grant's affidavit contained material statements that directly contradicted his deposition testimony, we hold the trial court did not abuse its discretion in sustaining AT&T's objection and in excluding Grant's affidavit.

         Training Material and Service Agreement

         Next, BDG argues the trial court abused its discretion in excluding the Training Material and Service Agreement attached to its summary judgment response. AT&T objected to the document because it was not relevant and because it was not signed. The trial court ...


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