Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 116th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-13-13014
Justices Francis, Brown, and Stoddart.
GP, LLC sued Multi Service Corporation (MSC), Multi Service
Technology Solutions, Inc., and World Fuel Services
Corporation for breach of agreements to which it was not a
party. Appellees moved for summary judgment on the grounds
that 6200 lacked capacity to sue and standing. The trial
court granted appellees' motion and dismissed 6200
GP's claims with prejudice. In three issues, 6200 GP
challenges the trial court's substantive and evidentiary
rulings. Because we conclude 6200 GP raised a material fact
issue on its right to sue, we reverse the trial court's
summary judgment and remand for further proceedings
consistent with this opinion.
is one of many wholly owned subsidiaries of Realty Advisor,
Inc. (RAI). In its second amended petition, 6200 GP alleged
that another RAI subsidiary, Prime Income Asset Management,
Inc. (Prime), became involved as an investor with Resurgent
Software, Inc. (RSI) in creating a maritime fueling system
program that involved a product "designed to act like a
credit card for ocean going vessels around the world" to
buy bunker fuel. Because of "previous associations"
with MSC and because MSC was already involved in maritime
fueling, Prime "engaged MSC in discussions to create a
joint venture to take advantage of the commercial market
opportunity" and demonstrated to MSC the capabilities of
the RSI software. In May 2010, Prime and MSC signed a
preliminary memorandum of understanding to collaborate to
form a joint venture to secure financing for and develop a
software package based on the RSI software. Subsequently,
Prime and its affiliates and MSC and its affiliates entered
into a second Memorandum of Understanding and a Revised
Memorandum of Understanding, both dated December 23, 2010 and
both of which are at the heart of this dispute.
to 6200 GP's allegations, in the "non-binding"
Revised MOU, Prime and MSC agreed to form a joint venture.
Rather than base the software platform upon RSI's system,
they agreed they would integrate the RSI platform into
MSC's software platform as deemed necessary by MSC.
Additionally, MSC agreed to form a new entity that would be
owned 75% by MSC and 25% by Prime. Under the second MOU, MSC
agreed that if it abandoned the joint venture but continued
to operate in the maritime environment using assets
contributed by Prime or RSI, it would pay a consulting fee.
At the time of these agreements, 6200 GP did not exist; it
was subsequently formed in April 2012.
December 2012, MSC was sold to World Fuels. 6200 GP alleged
that Prime was initially told the impact of the sale on their
maritime program was "unknown" and that
"business would continue as usual." But, by May
2013, Prime had been notified the MSC appellees would no
longer pursue opportunities in the "maritime
space." 6200 GP alleged, however, that World Fuels
remained "heavily involved in fueling in the maritime
space," including portions of the program that mimicked
those proposed by RSI. 6200 GP alleged that rather than
forming the joint venture or otherwise compensating Prime,
the MSC appellees took the joint venture assets and
misappropriated them "for their own ends." 6200 GP
alleged it was an affiliate and successor-in-interest to
Prime "relative to the project" and thus had
standing to sue for injuries caused by the MSC appellees'
wrongful acts and omissions, include the breaches of the
agreements with Prime related to the maritime fueling payment
system and software developed by RSI.
filed verified denials of 6200 GP's capacity to sue and
also pleaded lack of standing. MSC served discovery requests
for documents related to "6200 GP's succeeding to
the interest of Prime . . . or any other entity with interest
relevant to" the claims in this case. When 6200 GP
failed to produce responsive documents, MSC filed a motion to
compel. After a hearing, the trial court granted the motion
and ordered 6200 GP to produce "documents sufficient to
clearly demonstrate any basis of Plaintiff's alleged
right or standing (by ownership, assignment or otherwise) to
assert the claims made by Plaintiff in this case, including
any claimed right to [do] so as any 'affiliate' or
'successor' of Prime . . . or any other entity."
response, 6200 GP produced (1) a single-page "accounting
summary" that shows the reclassification of an $847,
678.48 "Inv. In Resurgence" moving from Prime to
other RAI entities, ending with 6200 GP, and (2) three sets
of RAI unanimous corporate consent documents, each signed by
RAI's sole director Mickey Ned Phillips, which
"recognize, ratify, and approve" intercompany
transactions that resulted in "Maritime Venture"
being "contributed" to 6200 GP. The consents state
the "Maritime Venture" includes Prime's
interest in Resurgence and its agreements with MSC. It is
undisputed the accounting summary and the corporate consent
documents were created post-litigation in response to the
trial court's order.
receiving the documents and deposing Phillips and Gene
Bertcher, the corporate representative, appellees filed a
traditional motion for summary judgment asserting 6200 GP
lacked standing or capacity to sue for Prime's interests.
Appellees argued 6200 GP did not have a legally binding
assignment of Prime's rights against them, in part,
because the only documents on which 6200 GP relied did not
constitute assignments, did not exist before the lawsuit, and
could not retroactively provide standing or capacity at the
time 6200 GP filed suit. In support of their motion,
appellees attached excerpts of the depositions of Phillips
and Bertcher; Phillips' declaration in which he avers he
has no personal knowledge of the transactions underlying the
three unanimous consent documents; the three consent
documents; an organizational chart; the accounting summary;
the Revised MOU; and the second MOU.
filed a response, asserting that through a series of internal
transfers, Prime transferred the underlying agreements and
claims to 6200 GP. 6200 GP attached the affidavit of Daniel
J. Moos, president of 6200 GP, Prime, RAI, and other RAI
entities relevant to this appeal. Attached to Moos's
affidavit were the same accounting summary, consent
documents, MOU, and Revised MOU relied upon by appellees.
6200 GP asserted Moos's affidavit proved up the
"chain of title" and demonstrated the claims in
this suit were assigned to it in 2012. Moos testified the
terms "Inv. In Resurgence" and "Maritime
Venture" were synonymous, included the MSC agreements,
and referred to the claims in this lawsuit. Moos also
testified to the intercompany transactions that moved the
"Maritime Venture" from Prime to 6200 GP. He
further explained the transactions were documented in the
accounting system as reflected in the accounting summary.
reply, appellees asserted 6200 GP's response contained no
"contemporaneous evidence" that Prime assigned its
interest in the MSC agreements at any time before the lawsuit
was filed. Additionally, appellees objected to several
paragraphs of Moos's affidavit as unsupported conclusions
or legal conclusions.
hearing was held on appellees' motion. After the hearing,
6200 GP filed a motion for leave to supplement the evidence
and attached two new pieces of evidence: (1) six pages of
journal entries from RAI's computerized accounting system
of general ledgers of the accounts referenced in the
previously offered accounting summary and (2) a redacted work
page from RAI's 2012 tax return showing 6200 GP had an
$847, 678 investment as an asset. The transaction referenced
in the journal entries is "Rcls Inv In Resurgence"
in the amount of $847, 678.48. Like the accounting summary,
the entries showed the asset moved from Prime ultimately to
trial court granted appellees' motion and dismissed 6200
GP's claims with prejudice. Although the trial court did
not separately rule on 6200 GP's motion for leave, the
judgment states the trial court included the supplemental
evidence in its review of the evidence. The day following the
trial court's ruling, appellees filed written objections
to the supplemental evidence. In part, they contended the
journal entries at most provided evidence RAI
"reclassified" Prime's $847, 678.48 investment
in Resurgence, not Prime's ...