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Pham v. Carrier

Court of Appeals of Texas, Seventh District, Amarillo

April 3, 2017


         On Appeal from the 126th District Court Travis County, Texas Trial Court No. D-1-GN-13-003813, Honorable Gisela D. Triana, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


          James T. Campbell, Justice

         Appellant Tho Q. Pham appeals from the trial court's take-nothing summary judgment order granting summary judgment in favor of appellees. We will reverse the court's judgment in part and affirm it in part.


         Pham, Jason Bryan Carrier and Stephen Bradley Womack were the members of a Texas limited liability company, Austin Barfish, LLC ("Barfish"), which owned and operated Chuggin' Monkey, a bar on Sixth Street in Austin. Pham brought suit in November 2013 after he learned Carrier and Womack had caused Barfish to convey the bar in late 2005 to another entity, Carmack Properties, LLC. Carmack was formed by Carrier and Womack, and did not include Pham. His suit asserted fraud, breach of fiduciary duty and other claims. He sought relief that included monetary and exemplary damages, a 40% interest in the existing Chuggin' Monkey bar and interests in "spinoff" bars, an accounting and attorney's fees.[1]

         Summary judgment evidence showed that after a 2002 re-organization of Barfish, Carrier and Womack owned a combined 60% interest and Pham 40%. The bar opened that year. During 2002 and 2003, Pham received some cash distributions from Barfish. He left Austin sometime in 2004 and moved to Houston. His summary judgment evidence shows he told Carrier and Womack to retain his share of profits in the company. Pham had no communication with Carrier or Womack from the time he left Austin until he had lunch with Carrier in early 2011.

         Appellees filed special exceptions to some of Pham's claims, and made the court aware that a certificate of termination[2] had been filed for Barfish on September 30, 2010. Appellees also filed a motion for summary judgment, asserting no-evidence and traditional grounds, including limitations.

         After a hearing, the court sustained appellees' special exceptions to Pham's causes of action for majority oppression of a minority member, conversion of his membership interest and breach of fiduciary interest owed to him individually, and dismissed those causes of action with prejudice.

         The day before a scheduled later hearing on appellees' motion for summary judgment, Pham filed his second amended petition in which he plead, for the first time, derivative claims on behalf of Barfish, alleging fraud and unjust enrichment. In this petition Pham also sought, both individually and derivatively, revocation of Barfish's termination under section 11.153 of the Texas Business Organizations Code.[3] See Tex. Bus. Orgs. Code Ann. § 11.153 (West 2015).

         The trial court held the hearing as scheduled, and took the summary judgment motion under advisement. It later signed a final judgment ordering that Pham take nothing on his remaining claims. This appeal followed.

         Standard of Review

         We review a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In a traditional motion for summary judgment, the movant has the burden to demonstrate that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Tex.R.Civ.P. 166a(c). We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009), citing Tex.R.Civ.P. 166a(i). To defeat a no-evidence summary judgment, the nonmovant is required to produce evidence that raises a genuine issue of material fact on each challenged element of its claim. Gish, 286 S.W.3d at 310 (citations omitted); see also Tex. R. Civ. P. 166a(i).

         In reviewing both traditional and no-evidence summary judgments, we consider the evidence in the light most favorable to the nonmovant. Smith v. O'Donnell, 288 S.W.3d 417, 424 (Tex. 2009); 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We credit evidence favorable to the nonmovant if reasonable jurors could, and disregard evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort, 289 S.W.3d at 848; Gish, 286 S.W.3d at 310; Nixon, 690 S.W.2d at 548-49. Further, every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49. When, as here, the trial court does not specify the grounds for its ruling, we must affirm its summary judgment if any ground on which judgment was sought is meritorious. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013); Burge v. Ocwen Loan Servicing, LLC, No. 03-14-00135-CV, 2016 Tex.App. LEXIS 5634, at *3 (Tex. App.- Austin May 27, 2016, no pet.) (mem. op.) ("When the trial court does not state the basis for granting summary judgment, the appealing party must negate all possible grounds that could form the basis of that ruling").


         Pham brings four issues on appeal, one asserting appellees' motion for summary judgment did not address all the causes of action on which summary judgment was granted; two issues addressing the statute of limitations grounds appellees asserted; and the other issue addressing appellees' no-evidence grounds challenging the merits of some causes of action.

         Issue One - Summary Judgment on Claims Not Challenged in Summary Judgment Motion

         By his first issue, Pham contends summary judgment on his individual and derivative claims seeking revocation of Barfish's termination under Business Organizations Code section 11.153 and his derivative claims on Barfish's behalf for fraud and unjust enrichment was improper because they were not addressed in appellees' motion for summary judgment.

         As a general rule, a trial court commits reversible error by granting summary judgment on a claim not addressed in the summary judgment motion. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011) (per curiam). The error is harmless, however, "when the omitted cause of action is precluded as a matter of law by other grounds raised in the case." Id. at 298; see Tarr v. Lantana Sw. Homeowners' Ass'n, No. 03-14-00714-CV, 2016 Tex.App. LEXIS 13372 (Tex. App.-Austin December 16, 2016, no pet.) (mem. op.).

         As noted, Pham plead his revocation-of-termination claim and his derivative fraud and unjust enrichment claims in his second amended petition, filed after appellees' motion for summary judgment, and appellees acknowledge their motion did not "specifically" address those claims. They assert any error in granting summary judgment on the claims nevertheless was harmless, for two reasons: first, the grounds asserted in the motion show Pham could not recover on the omitted ...

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