Court of Appeals of Texas, Seventh District, Amarillo
THO Q. PHAM, APPELLANT
JASON BRYAN CARRIER, STEPHEN BRADLEY WOMACK, MICHAEL CHADWICK PICKELSIMER AKA MICHAEL CHADWICK WOMACK, HMP PARTNERS MANAGEMENT, INC., AND CARMACK PROPERTIES, LLC, APPELLEES
Appeal from the 126th District Court Travis County, Texas
Trial Court No. D-1-GN-13-003813, Honorable Gisela D. Triana,
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
T. Campbell, Justice
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.
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
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.
filed special exceptions to some of Pham's claims, and
made the court aware that a certificate of
termination had been filed for Barfish on September
30, 2010. Appellees also filed a motion for summary judgment,
asserting no-evidence and traditional grounds, including
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
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. See Tex. Bus. Orgs. Code Ann.
§ 11.153 (West 2015).
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.
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).
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").
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
One - Summary Judgment on Claims Not Challenged in Summary
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.
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.).
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 ...