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Swan v. GR Fabrication, LLC

Court of Appeals of Texas, Fifth District, Dallas

April 26, 2018

RANDY SWAN, Appellant
v.
GR FABRICATION, LLC, AND GRANT SWARTZWELDER, Appellees

          On Appeal from the 355th District Court Hood County, Texas Trial Court Cause No. C2015329

          Before Justices Lang, Fillmore, and Schenck

          MEMORANDUM OPINION

          DAVID J. SCHENCK JUSTICE

         Appellant Randy Swan appeals the trial court's order granting summary judgment in favor of appellees GR Fabrication, LLC and Grant Swarzwelder in a suit appellant initiated in connection with their involvement in various ventures. In a single issue, appellant asserts the trial court erred in granting appellees' motion for no-evidence summary judgment because he presented more than a scintilla of evidence to support each element of his claims. We affirm the trial court's judgment in part, reverse the judgment in part, and remand this case for further proceedings consistent with this opinion. Because all issues are settled in law, we issue this memorandum opinion. Tex.R.App.P. 47.4.

         Factual and Procedural Background

         Appellant filed suit against appellees claiming they were involved in various joint ventures he calls the Compressor Sales Joint Venture and the Falcon Diesel Services Joint Venture, which were created to buy and sell equipment. Appellant claims appellees owe him the sum of $112, 538 in connection with the Compressor Sales Joint Venture, and unspecified profits for the Falcon Diesel Services Joint Venture, under what the parties have treated as breach of fiduciary duty and breach of contract claims. Thereafter, appellant amended his petition to add fraud and shareholder oppression claims. Appellees filed a motion for no-evidence summary judgment on appellant's breach of contract, breach of fiduciary duty, and fraud claims and a motion for traditional summary judgment on appellant's shareholder oppression claim. Appellant thereafter filed an amended petition removing his claims of fraud and shareholder oppression. Appellant filed his response to appellees' motion for no-evidence summary judgment on the breach of contract and breach of fiduciary duty claims, attaching his own declaration with a document attached thereto that appellant describes as Swartzwelder's hand written notes concerning the division of the ventures' funds. The declaration generally describes a series of business arrangements involving appellant and appellees and states appellees failed to disburse funds owed to appellant. The trial court granted appellees' motion for no-evidence summary judgment without specifying the grounds on which it relied.[1] Appellant filed a motion for rehearing. The trial court denied that motion and this appeal followed.

         Discussion

         I. Applicable Law and Standard of Review

         A movant seeking a no-evidence summary judgment need only allege that there is no evidence of an essential element of a claim on which a nonmovant would have the burden of proof at trial. Tex.R.Civ.P. 166a(i); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). Once that occurs, the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on the challenged elements. Tex.R.Civ.P. 166a(i). The nonmovant will defeat a no-evidence motion by presenting more than a scintilla of evidence to raise a genuine issue of material fact. Id. More than a scintilla of evidence exists when the evidence rises to a level that would enable fair-minded people to differ in their conclusions. Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).

         A no evidence summary judgment is the equivalent to a pretrial directed verdict and, in reviewing the granting of a no-evidence summary judgment, this Court applies the same legal sufficiency standard as applied in reviewing directed verdicts. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). We will thus sustain a no-evidence summary judgment when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).

         In a single issue, appellant urges the trial court erred in granting appellees' motion for no-evidence summary judgment because he presented more than a scintilla of evidence to support each challenged element of his claims. Appellees respond claiming the trial court did not err in granting them summary judgment because appellant's declaration: (1) is not shown to be made on personal knowledge and (2) contains only conclusory statements concerning appellees' alleged breaches and any damages suffered, and the attachment to the declaration containing hand written notes is not authenticated and cannot be considered as summary judgment evidence.

         II. Application of the Law to the Facts

         A. Personal Knowledge

         In his declaration, appellant states "I have personal knowledge of the facts set forth in this Declaration, and said facts are true and correct." Simply stating that the affiant has personal knowledge of the statements in the affidavit is inadequate unless the affidavit contains other statements that affirmatively reveal how the affiant has personal knowledge. Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 745 (Tex. App.-Houston [14th Dist.] 2013, pet. denied). In his declaration, appellant reveals he has personal knowledge of some of his statements by virtue of his personal involvement in the business ...


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