Opinion
01-21-00506-CV
02-14-2023
JAESON JONES, Appellant v. CHARLA HALE, Appellee
On Appeal from the 25th District Court Colorado County, Texas Trial Court Case No. 25076A
Panel consists of Justices Goodman, Hightower, and Guerra.
MEMORANDUM OPINION
Amparo Guerra Justice
Appellant Jaeson Jones appeals from the trial court's order granting summary judgment in favor of appellee Charla Hale. In four issues on appeal, Jones argues that the trial court erred in awarding Hale attorney's fees under Chapter 42 of the Texas Civil Practice and Remedies Code, striking Jones's amended pleadings, and granting summary judgment in favor of Hale because he argues fact issues remain. We affirm.
Background
In July 2018, Jones, individually and as executor of the Estate of J.T. Jones (Jones's father who passed away on December 8, 2017), sued Hale, a friend and companion of J.T. Jones toward the end of his life, alleging that Hale was "actively trying to separate [Jones] from his father and brothers in order to control the deceased's finances to the detriment of not only [Jones] himself but the Estate itself." In his first amended petition, Jones alleged causes of action against Hale for conversion, fraud, constructive fraud, money had and received, and theft under the Texas Theft Liability Act (TTLA) related to the following property of J.T. Jones: (1) checking and savings accounts, (2) Houston Livestock Show and Rodeo tickets, (3) a Vanguard 401k account, (4) a Dodge truck, and (5) missing items from the inventory of J.T. Jones's estate. Hale moved to have Jones removed as independent executor, arguing that Jones's lawsuit against Hale had "resulted in tortious conduct against members of the bar, innocent third parties, and [Hale]," and was "depleting assets of the estate and preventing proper administration of the same," and that Jones was "guilty of gross misconduct in his failure to execute his duties, commingling personal assets with the assets of the estate, [and] distributing assets of the estate to certain beneficiaries without equivalent distributions to other beneficiaries," and that Jones was "clearly contesting the validity of [J.T. Jones's] will and both codicils and is unfit to continue as administrator."
On March 7, 2019, Hale moved for traditional and no-evidence summary judgment on Jones's causes of action for conversion, fraud, constructive fraud, theft under the TTLA, and money had and received, which she set for hearing on March 28. Jones responded on March 21 and moved to continue the summary judgment hearing to allow for additional discovery, including depositions, to take place. In an order dated April 12, the trial court removed Jones as the independent executor of J.T. Jones's estate, appointed a dependent administrator, ordered Hale to appear for a deposition on May 10, and allowed Hale's summary judgment hearing to be reset for thirty days after Hale's deposition. Thereafter, Hale noticed the summary judgment hearing for June 18.
Hale's deposition took place as scheduled on May 10. Jones timely filed an amended response to Hale's motion for summary judgment on June 11, in which he attached over 550 pages of evidence, including the entirety of Hale's deposition transcript, and relied on statements she made at that deposition in support of his response. On June 17, the day before the summary judgment hearing, Jones filed a second amended petition adding two new causes of action: (1) intentional infliction of emotional distress and (2) declaratory judgment that Jones was the owner of funds removed from J.T. Jones's checking account. Jones alleged that these new causes of action were necessary based on testimony elicited from Hale at her May 10 deposition. He did not request leave to file the second amended petition. After Hale noted in her reply in support of her motion for summary judgment that Jones failed to request leave from the trial court for his amended petition, objected to the amended petition, and requested the trial court strike the amended petition, Jones filed a motion for leave to file his third amended petition, which was substantively identical to the second amended petition, at 1:22 a.m. on June 18, the morning of the summary judgment hearing. Jones did not set his motion for leave for hearing.
After a hearing on Hale's motion for summary judgment, the trial court denied the motion as to Jones, individually, and "as to [Jones], as Executor of the Estate of J.T. Jones, since Mr. Jones is no longer the executor, the issue as to the Motion for Summary Judgment by the executor is abated." After Hale filed a motion for reconsideration of the trial court's summary judgment ruling, and a hearing on the same, in an order dated November 26, 2019, the trial court granted "in full [Hale's] Motion for Summary Judgment as to Jaeson Jones" and ordered that "all claims and causes of action made by Jaeson Jones are hereby DISMISSED with prejudice as to the refiling of the same." The trial court also found that Jones's "amended petition filed without leave and only one day before the summary judgment hearing on June 17, 2019 was untimely and is hereby stricken." The trial court further awarded Hale "attorney's fees and court costs in the amount of $31,169.56 in equity and pursuant to the provisions of Chapter 42 of the Civ. Prac. & Rem. Code." Finally, the trial court abated all claims brought by Jones as the Executor of the Estate of J.T. Jones "until such time as the Dependent Administrator is given leave to dismiss or pursue same."
As the trial court's order granting summary judgment on Jones's individual claims was interlocutory, Hale moved to sever those claims from the underlying lawsuit to make them final and appealable. Jones moved for rehearing and for a new trial on December 20, 2019, in which he argued that (1) the attorney's fee award was improper under Chapter 42 of the Texas Civil Practice and Remedies Code, (2) the striking of his amended pleading was equivalent to death penalty sanctions, and (3) fact issues remain regarding his causes of action against Hale. The trial court denied Jones's motion for new trial and granted Hale's motion to sever.
On September 17, 2021, Jones filed two separate notices of appeal from the trial court's November 26, 2019 interlocutory order granting summary judgment in favor of Hale. The underlying trial court litigation was originally assigned trial court cause number 25076. However, after the trial court entered the interlocutory summary judgment order appealed here, the trial court also entered a "2nd Amended Order Granting Severance" on August 6, 2021. In its severance order, the trial court directed the trial court clerk to open a new case "under Cause No. 25076-A." Jones filed a notice of appeal under the original trial court cause number, 25076, and one under the severed cause number, 25076-A, and was assigned appellate cause numbers 01-21-00505-CV and 01-21-00506-CV, respectively. In an order dated December 16, 2021, this Court concluded that we had jurisdiction over appellate cause number 01-21-00506-CV, corresponding to the severed trial court cause number 25076-A. Jones subsequently filed a "Motion to Transfer Record," requesting that the Court transfer the clerk's record and reporter's record from appellate cause number 01-21-00505-CV to appellate cause number 01-21-00506-CV because "the two cases are related to one another and it is necessary to have the entire clerk's record and reporter's record from trial court case no. 25076 as a part of this appeal." On January 10, 2023, this Court granted Jones's motion to transfer the record.
Attorney's Fees
In his first and second issues, Jones contends that the trial court erred in awarding attorney's fees to Hale under Chapter 42 of the Texas Civil Practice and Remedies Code because Hale was awarded no damages and because the attorney's fee award under Chapter 42 could not be based on Hale's global offer of settlement. In its order granting Hale's motion for summary judgment, the trial court awarded Hale "attorney's fees and court costs in the amount of $31,169.56 in equity and pursuant to the provisions of Chapter 42 of the Civ. Prac. & Rem. Code." In his motion for new trial, Jones challenged the attorney's fee award as improper under Chapter 42 but did not address the alternative basis for the award in equity. In her motion for new trial response, Hale argued that the trial court's award was also in equity, that she had shown her entitlement to such an award, and that Jones failed to contest the equitable basis for the award of attorney's fees. At the hearing on Jones's motion for new trial, the parties addressed both grounds.
Section 42.004 provides that "[i]f a settlement offer is made and rejected and the judgment to be rendered will be significantly less favorable to the rejecting party than was the settlement offer, the offering party shall recover litigation costs from the rejecting party." Tex. Civ. Prac. & Rem. Code § 42.004(a). However, subsection (d) provides that "[t]he litigation costs that may be awarded under this chapter to any party may not be greater than the total amount that the claimant recovers or would recover before adding an award of litigation costs under this chapter in favor of the claimant or subtracting as an offset an award of litigation costs under this chapter in favor of the defendant." Id. § 42.004(d).
See, e.g., Nationwide Mut. Ins. Co. v. Holmes, 842 S.W.2d 335, 341 (Tex. App.-San Antonio 1992, writ denied) ("Generally, unless provided for by statute or by contract between the parties, attorney's fees incurred by a party to litigation are not recoverable against his adversary either in an action in tort or by suit upon a contract . . . . A recovery of attorney's fees based upon equitable principles, however, can exist." (citation omitted)); Baja Energy, Inc. v. Ball, 669 S.W.2d 836, 838 (Tex. App.-Eastland 1984, no writ) (recognizing that attorney's fees can be granted upon equitable principles, including common fund doctrine and where party was required to prosecute or defend previous suit as consequence of wrongful act of defendant).
Despite the equity language in the trial court's order and the briefing and arguments below related to the alternative equity ground for the attorney's fee award, Jones's appellate briefing focuses on the award under Chapter 42 of the Civil Practice and Remedies Code but never mentions the equity basis for the award. If an independent ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that independent ground, then we must accept the validity of that unchallenged independent ground and therefore any error in the grounds challenged on appeal is harmless because the unchallenged independent ground fully supports the complained-of ruling or judgment. Britton v. Tex. Dep't of Crim. Just., 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Because Jones does not challenge on appeal the trial court's award of attorney's fees in equity, any error in awarding attorney's fees under Chapter 42 is harmless. See Bluelinx Corp. v. Tex. Const. Sys., Inc., 363 S.W.3d 623, 630 (Tex. App.-Houston [14th Dist.] 2011, no pet.) (holding that appellant's failure to challenge independent ground to support trial court's award of attorney's fees rendered any error in awarding attorney's fees under Chapter 38 of Civil Practice and Remedies Code harmless); Britton, 95 S.W.3d at 681 (holding that failure to challenge independent ground to support trial court's ruling renders any error in complained-of ground harmless).
We overrule Jones's first and second issues.
Striking Amended Petition
In his third issue, Jones argues that the trial court erred in striking his amended pleadings because doing so amounted to a death penalty sanction. He contends that he timely moved for leave to file his third amended petition and his amended petition did not result in unfair prejudice or delay as it added causes of action unrelated to Hale's motion for summary judgment.
Rule 63 of the Texas Rules of Civil Procedure provides,
Parties may amend their pleadings . . . by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.Tex. R. Civ. P. 63. A summary judgment hearing is a trial for purposes of Rule 63. Wheeler v. Yettie Kersting Mem' l Hosp., 761 S.W.2d 785, 787 (Tex. App.-Houston [1st Dist] 1988, writ denied); see also Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (applying Rule 63 to amendment filed before summary judgment hearing). If an amended pleading is filed within seven days but before the hearing, leave of court is required. Mensa-Wilmot v. Smith Int'l, Inc., 312 S.W.3d 771, 778 (Tex. App.-Houston [1st Dist.] 2009, no pet.); Houtex Ready Mix Concrete & Materials v. Eagle Constr. & Env 'tl Servs., L.P., 226 S.W.3d 514, 520 (Tex. App.-Houston [1st Dist.] 2006, no pet.). An appellate court will presume leave was granted when a summary judgment states that all pleadings were considered, when the record does not indicate that an amended pleading was not considered, and if the opposing party does not show surprise. See Cont 'l Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 276 (Tex. 1996); see also Mensa-Wilmot, 312 S.W.3d at 778. "However, if a plaintiff seeks to amend in the seven-day period before the summary judgment hearing and leave to amend was denied, or the presumption that leave was granted does not apply, the amended petition is not timely and should not be considered by the trial court." Mensa-Wilmot, 312 S.W.3d at 779; see also McIntyre v. Wilson, 50 S.W.3d 674, 684 (Tex. App.-Dallas 2001, pet. denied); Domizio v. Progressive Cnty. Mut. Ins. Co., 54 S.W.3d 867, 875-76 (Tex. App.-Austin 2001, pet. denied).
A trial court's decision on whether to allow the amendment of pleadings is reviewed under an abuse-of-discretion standard. Air Prods. & Chems., Inc. v. Odfjell Seachem A/S, 305 S.W.3d 87, 92 (Tex. App.-Houston [1st Dist.] 2009, no pet.). If the amendment complained of asserts a new cause of action or defense, it is prejudicial on its face, and if the opposing party objects to the amendment, the trial court has discretion to refuse the amendment. See id. at 92-93; see also Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939-40 (Tex. 1990); Smith v. Heard, 980 S.W.2d 693, 698 (Tex. App.-San Antonio 1998, pet. denied).
Hale filed her motion for summary judgment on March 7, 2019, which she set for hearing on March 28. Jones responded on March 21 and moved to continue the summary judgment hearing to allow for additional discovery, including depositions, to take place. In an order dated April 12, the trial court removed Jones as the independent executor of J.T. Jones's estate, ordered Hale to appear for a deposition on May 10, and allowed Hale's summary judgment hearing to be reset for thirty days after Hale's deposition. Thereafter, Hale noticed the summary judgment hearing for June 18.
Hale's deposition took place as scheduled on May 10. Jones timely filed an amended response to Hale's motion for summary judgment on June 11, in which he attached Hale's deposition transcript as evidence and relied on statements she made at that deposition in support of his response. On June 17, the day before the summary judgment hearing, Jones filed his second amended petition adding two new causes of action: (1) intentional infliction of emotional distress and (2) declaratory judgment that Jones was the owner of funds removed from J.T. Jones's checking account, the addition of which he alleges was necessary based on testimony elicited from Hale at her May 10 deposition. He did not request leave to file the second amended petition. After Hale noted in her reply in support of her motion for summary judgment that Jones failed to request leave from the trial court for his amended petition, objected to the amended petition and requested the trial court strike the amended petition, Jones filed a motion for leave to file his third amended petition, which was substantively identical to the second amended petition, at 1:22 a.m. on June 18, the morning of the summary judgment hearing. Jones did not set his motion for leave for hearing.
The trial court struck Jones's amended petition filed on June 17 and denied Jones's motions for reconsideration and new trial, in which Jones argued that his motion for leave was timely filed and the amended pleading did not cause surprise or prejudice.
Although the trial court's order does not specifically strike the third amended petition or rule on Jones's motion for leave, we conclude that the trial court implicitly denied Jones's motion for leave to file the third amended petition, which was substantively identical to the second amended petition, because Jones alerted the trial court to the issues related to his amended pleadings in his motions for new trial, both of which were denied by the trial court or by operation of law. Cf. Mensa- Wilmot v. Smith Int'l, Inc., 312 S.W.3d 771, 778-79 (Tex. App.-Houston [1st Dist.] 2009, no pet.) (noting that appellate court will presume leave was granted when summary judgment order states that all pleadings were considered, when record does not indicate that amended pleading was not considered, and if opposing party does not show surprise; however, where leave was denied or presumption that leave was granted does not apply, amended petition is not timely and should not be considered by trial court).
Jones argues the trial court erred by striking his amended pleadings without a hearing because the amended pleading was made by a timely motion and did not result in any unfair prejudice or delay in that the pleading added an unrelated cause of action that was necessary based on new evidence discovered during Hale's May 10 deposition. We interpret this as an argument that the trial court abused its discretion by striking Jones's second amended petition and by implicitly denying his motion for leave to file the third amended petition.
There is no dispute that Jones's amended pleadings added two new causes of action, to which Hale objected. Thus, the amended pleadings were prejudicial on their face. See Greenhalgh, 787 S.W.2d at 939. Due to Hale's objection, the trial court had discretion to refuse the amended pleadings. See id.; see also Air Prods., 305 S.W.3d at 92-93 (noting that "trial court may conclude that the amendment is, on its face, calculated to surprise or that the amendment would reshape the cause of action, prejudicing the opposing party and unnecessarily delaying the trial" and "[i]n that situation, the opposing party's objection is sufficient to show surprise"); Garner v. Corpus Christi Nat'l Bank, 944 S.W.2d 469, 479 (Tex. App.-Corpus Christi- Edinburg 1997, writ denied) ("In the instant case, since the fourth-amended petition asserted a new cause of action, it was prejudicial on its face. Due to CCNB's objection to it, the trial court had discretion to refuse the amended pleading."); Bell v. Moores, 832 S.W.2d 749, 757 (Tex. App.-Houston [14th Dist.] 1992, writ denied) ("Surprise may be shown as a matter of law if the pleading asserts a new and independent cause of action or defense."). Jones does not argue or explain on appeal why his amended pleading could not have been filed earlier, i.e., more than seven days before the summary judgment hearing, particularly when his amended response to Hale's motion for summary judgment, which attached and relied on Hale's deposition testimony, was timely filed. Accordingly, we hold that the trial court did not abuse its discretion in striking or denying leave to file his amended pleadings. See Greenhalgh, 787 S.W.2d at 939-40; Nicholson v. Bank of New York Mellon, No. 02-20-00379-CV, 2022 WL 963990, at *6-7 (Tex. App.-Fort Worth Mar. 31, 2022, no pet.) (mem. op.) (holding that because plaintiff's seventh amended petition added new causes of action, trial court did not abuse its discretion by denying leave to file it or by granting defendants' motion to strike); Bell, 832 S.W.2d at 757 (holding trial court did not abuse its discretion in striking plaintiffs' fourth amended petition, which asserted new causes of action, filed six days before summary judgment hearing, where plaintiffs gave no reason why new claims could not have been added within time frame set by Rule 63).
We overrule Jones's third issue.
Summary Judgment
In his fourth issue, Jones argues that the trial court erred in granting summary judgment in favor of Hale on his claims for conversion, fraud, constructive fraud, theft, and money had and received. He contends there "is no doubt that fact issues remain in this case." Here, Hale moved for traditional and no-evidence summary judgment on Jones's claims for conversion, fraud, constructive fraud, theft, and money had and received. The trial court granted the motion, without specifying grounds.
A. Standard of Review
We review a trial court's grant of summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). When reviewing a summary judgment motion, we must take as true all evidence favorable to the nonmovant and indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). If a trial court grants summary judgment without specifying the grounds for granting the motion, we must uphold the trial court's judgment if any one of the grounds advanced in the motion is meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.-Houston [1st Dist.] 2005, pet. denied). Where, as here, a trial court grants a summary judgment involving both no-evidence and traditional grounds, we ordinarily address the no-evidence grounds first. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); PAS, Inc. v. Engel, 350 S.W.3d 602, 607 (Tex. App.-Houston [14th Dist.] 2011, no pet.).
Further, when, as here, the summary judgment order does not specify the grounds on which it was granted, the appealing party must demonstrate that none of the proposed grounds is sufficient to support the judgment. West v. SMG, 318 S.W.3d 430, 437 (Tex. App.-Houston [1st Dist.] 2010, no pet.). "[W]hen a summary judgment motion alleges multiple grounds and the order granting summary judgment does not specify the ground on which the summary judgment was rendered, the appellant must challenge and negate all summary judgment grounds on appeal." Britton, 95 S.W.3d at 681. "If summary judgment may have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed." Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Along the same lines, where a defendant moves for both traditional and no-evidence summary judgment, and the plaintiff fails to challenge both the traditional and no-evidence grounds on appeal, we must affirm. See Franchise Specialist, LLC v. 101 League City I-45/646, LP, No. 14-20-00543-CV, 2022 WL 365197, at *5 (Tex. App.-Houston [14th Dist.] Feb. 8, 2022, no pet.) (mem. op.) (affirming summary judgment because appellant failed to challenge both no-evidence and traditional grounds); Munguia as Next Friend of E.S.U. v. Justrod, Inc., No. 14-18-01059-CV, 2021 WL 282569, at *2 (Tex. App.-Houston [14th Dist.] Jan. 28, 2021, pet. denied) (mem. op.) (same); Yeske v. Piazza Del Arte, Inc., 513 S.W.3d 652, 665-66 (Tex. App.-Houston [14th Dist.] 2016, no pet.) (same); Moore v. Panini Am. Inc., No. 05-15-01555-CV, 2016 WL 7163899, at *4 (Tex. App.-Dallas Nov. 7, 2016, no pet.) (mem. op.) (same); Leffler v. JP Morgan Chase Bank, N.A., 290 S.W.3d 384, 387 (Tex. App.-El Paso 2009, no pet.) (same); In re Estate of Bendtsen, 230 S.W.3d 823, 830 (Tex. App.-Dallas 2007, pet. denied) (same).
B. Analysis
In her combined no-evidence and traditional motion for summary judgment, Hale set forth the elements for each cause of action and specifically identified which elements she contended lacked any evidence.
For instance, with respect to Jones's cause of action for conversion, Hale argued that there was no evidence that (1) Jones, as opposed to J.T. Jones, owned or had the right to possess any of the property at issue, (2) that any use of the property by Hale was done without the consent of J.T. Jones prior to his death, and (3) Jones suffered any damages.
The elements of a conversion claim are (1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Cypress Creek EMS v. Dolcefino, 548 S.W.3d 673, 684 (Tex. App.-Houston [1st Dist.] 2018, pet. denied). To recover for conversion, a plaintiff must also prove damages that are the proximate result of the defendant's conversion. Id. at 685.
Jones's causes of action for conversion, fraud, constructive fraud, theft, and money had and received related to the following property (hereinafter referred to as the property at issue): J.T. Jones's checking and savings accounts, rodeo tickets, 401k account, Dodge truck, and various other items missing from J.T. Jones's estate.
With respect to Jones's cause of action for fraud, Hale argued that there was no evidence that: (1) Hale made a material misrepresentation, directly or indirectly, to Jones related to any of the property at issue, (2) Hale made any misrepresentation related to any of the property at issue with the intention that it be acted upon by Jones, (3) Jones acted on any alleged misrepresentation related to any of the property at issue, and (4) that any alleged misrepresentation caused Jones to suffer damages.
To prevail on a claim for common-law fraud, the plaintiff must prove that: (1) the defendant made a material representation that was false; (2) the defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and suffered injury as a result. JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018).
With respect to Jones's cause of action for constructive fraud, Hale argued that there was no evidence of a legal or equitable duty between herself and Jones because there was no fiduciary or confidential relationship. Alternatively, she argued there was no evidence that J.T. Jones lacked the capacity to make his own decisions or that Hale violated J.T. Jones's trust before his death.
"[C]onstructive fraud is 'the breach of some legal or equitable duty which, irrespective of moral guilt, the law declares fraudulent because of its tendency to deceive others, to violate confidence, or to injure public interests.'" Saden v. Smith, 415 S.W.3d 450, 470 (Tex. App.-Houston [1st Dist.] 2013, pet. denied) (quoting Archer v. Griffith, 390 S.W.2d 735, 740 (Tex. 1964)); see also Holland v. Thompson, 338 S.W.3d 586, 598 (Tex. App.-El Paso 2010, pet. denied) ("Constructive fraud is the breach of a legal or equitable duty which the law declares fraudulent because it violates a fiduciary or confidential relationship.").
With respect to Jones's cause of action for theft under the TTLA, Hale argued that there was no evidence that Jones owned any of the property allegedly stolen or that Hale committed theft of any of the property at issue.
Under the TTLA, a person who commits theft-which includes the unlawful appropriation of property under section 31.03 of the Penal Code-is liable for the damages resulting from the theft. Tex. Civ. Prac. & Rem. Code §§ 134.002, 134.003. A theft occurs when (1) property is (2) unlawfully appropriated (3) by someone (4) with intent to deprive the owner of that property. Tex. Penal Code § 31.03. Property includes money, see id. § 31.01(5)(C), and "appropriate" means to "acquire or otherwise exercise control over property other than real property," id. § 31.01(4)(B). A person who sustains damages resulting from the unlawful appropriation of property may recover actual damages, as well as additional damages not to exceed $1,000 and attorney's fees. Tex. Civ. Prac. & Rem. Code § 134.005; Haler v. Boyington Cap. Grp., Inc., 411 S.W.3d 631, 635-36 (Tex. App.-Dallas 2013, pet. denied).
Finally, with respect to Jones's cause of action for money had and received,Hale argued that there was no evidence that any of the property at issue "rightfully belong[ed]" to Jones or that Hale possessed any money flowing from any of the property at issue.
To recover on a cause of action for money had and received, the claimant must demonstrate that the defendant holds money which in equity and good conscience belongs to the claimant. See Best Buy Co. v. Barrera, 248 S.W.3d 160, 163 (Tex. 2007) (per curiam); London v. London, 192 S.W.3d 6, 13 (Tex. App.-Houston [14th Dist.] 2005, pet. denied).
In total, Jones attached over 550 pages of documents to his amended summary judgment response but failed to cite to or otherwise direct the trial court to specific evidence supporting each of the challenged elements of each of his causes of action. Instead, he set forth facts in the background section, occasionally supported by specific citations to summary judgment evidence, but on most occasions supported by references to entire affidavits or exhibits, relating to the specific pieces of property at issue. In this background section, however, he did not tie any of the facts or cited evidence to any of the challenged elements of his causes of action. Furthermore, in each paragraph of his response devoted to the specific causes of action, he stated: "See the facts stated above in detail and evidence attached to this motion and incorporated herein for all purposes." He did not, again, identify any specific piece of evidence that supported or created a fact issue on the elements of each cause of action challenged by Hale.
In response to Hale's no-evidence motion for summary judgment, it was Jones's burden to present evidence raising an issue of material fact as to the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Hahn v. Love, 321 S.W.3d 517, 524 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). "[A] party submitting summary judgment evidence must specifically identify the supporting proof on file that it seeks to have considered by the trial court." Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 775-76 (Tex. App.-Dallas 2013, pet. denied) (quotation omitted) ("Merely citing generally to voluminous summary judgment evidence in response to either a no-evidence or traditional motion for summary judgment is not sufficient to raise an issue of fact to defeat summary judgment."); see also Gillham v. Sanchez, No. 05-17-01449-CV, 2019 WL 2082466, at *6 (Tex. App.-Dallas May 13, 2019, pet. denied) (mem. op.) (holding plaintiff's response, which did not inform trial court of what evidence related to which elements challenged by defendant's motion for summary judgment, was insufficient to raise genuine issue of material fact and trial court was not required to sift through plaintiff's voluminous evidence to determine whether any of it raised fact question on challenged elements); Amboree v. Bonton, No. 01-14-00846-CV, 2015 WL 4967046, at *6 (Tex. App.-Houston [1st Dist.] Aug. 20, 2015, no pet.) (mem. op.) (concluding non-movant failed to carry burden to produce evidence raising genuine issue of material fact on challenged elements of claims against defendants for tortious interference, fraud, and conspiracy where response to defendants' no-evidence summary judgment motion did not direct trial court to any evidence on challenged elements of her claims); Kastner v. Gutter Mgmt. Inc., No. 14-09-00055-CV, 2010 WL 4457461, at *3 (Tex. App.-Houston [14th Dist.] Nov. 4, 2010, pet. denied) (mem. op.) ("Blanket citation to voluminous records is not a proper response to a no-evidence motion for summary judgment."); Leija v. Laredo Cmty. Coll., No. 04-10-00410, 2011 WL 1499440, at *5 (Tex. App.-San Antonio Apr. 20, 2011, no pet.) (mem. op.) ("When a summary judgment respondent fails to direct the reviewing court to specific summary judgment evidence, a fact issue cannot be raised sufficient to defeat summary judgment.").
Further, in his appellate brief, Jones argues that summary judgment was improper because fact issues remain, specifically:
• Hale "drained J.T. Jones['s] checking and savings accounts which belonged to [Jones] as they were POD accounts." In support, Jones cites to six pages of Hale's deposition, Jones's entire 69-page affidavit, and 85 pages of audio transcripts.
• Hale "falsified letters to the Houston Livestock show and rodeo acting as if she was J.T. Jones himself in an attempt to cause distress and hardship to [Jones]," typed a letter to the "Houston Livestock show and rodeo to further her efforts regarding the rodeo tickets," and further attempted to "falsify the documents and to have the rodeo tickets mailed to her home."
• Jones was informed he was no longer the beneficiary of J.T. Jones's 401k account and that the funds had been dispersed. Because of the above facts related to Hale's "draining the bank accounts with [Jones] listed as the POD, and also transferring the rodeo tickets to herself, it is reasonable to believe [Hale] changed the beneficiary to the 401k account as well." In support, Jones again cited to his entire 69-page affidavit.Jones concludes his fourth issue by arguing that "[s]uch facts as stated support [Jones's] lawsuit for conversion, fraud, constructive fraud, theft and money had and received[.]"
Jones's brief on appeal neither identifies the challenged elements of each cause of action, nor directs us to specific evidence to support any, let alone each, of the elements challenged in Hale's motion. See Britton, 95 S.W.3d at 681 ("[W]hen a summary judgment motion alleges multiple grounds and the order granting summary judgment does not specify the ground on which the summary judgment was rendered, the appellant must challenge and negate all summary judgment grounds on appeal."); Ellis, 68 S.W.3d at 898 ("If summary judgment may have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed."). Further, he fails to make any connection between the evidence that is cited in his brief with any of the challenged elements of any of the causes of action. See Amboree, 2015 WL 4967046, at *6-7; Manautou v. Ebby Halliday Real Estate, Inc., No. 05-13-01035-CV, 2015 WL 870215, at *3 (Tex. App.-Dallas Feb. 27, 2015, pet. denied) (mem. op.) ("When a trial court grants a no-evidence motion for summary judgment, in order to adequately challenge on appeal each possible ground for summary judgment, an appellant must cite the specific evidence in the record that it relied upon to defeat the motion and describe why that evidence raised a fact issue."). "'[I]t is not our duty [on appeal] to sua sponte conceive of potential fact issues and then search the appellate record for evidence supporting their existence.'" Amboree, 2015 WL 4967046, at *7 (quoting Daniel v. Webb, 110 S.W.3d 708, 710 (Tex. App.-Amarillo 2003, no pet.)); see also Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex. App.-Houston [1st Dist.] 2010, pet. denied) ("[I]n determining whether a respondent to a no-evidence motion for summary judgment has sufficient evidence to raise a genuine issue of material fact, courts are not required to search the record without guidance." (internal quotations omitted)). Finally, although Hale moved for summary judgment on both traditional and no-evidence grounds and the trial court did not specify on which grounds summary judgment was granted, Jones makes no attempt on appeal to distinguish between the trial court's potential ruling on no-evidence or traditional summary judgment grounds. See Franchise Specialist, LLC, 2022 WL 365197, at *5; Munguia, 2021 WL 282569, at *2; Yeske, 513 S.W.3d at 665-66; Moore, 2016 WL 7163899, at *4.
Because Jones does not direct this Court to specific evidence to support each element of the causes of action challenged by Hale, does not challenge all the possible independent grounds for summary judgment in his appellate brief, and fails to distinguish between the trial court's potential ruling on no-evidence or traditional summary judgment grounds, we conclude that he has failed to carry his burden to produce evidence raising a genuine issue of material fact on the challenged elements of his conversion, fraud, constructive fraud, theft, and money had and received claims against Hale. Accordingly, we hold that the trial court did not err in granting summary judgment in favor of Hale on these claims.
We overrule Jones's fourth issue.
Conclusion
We affirm the trial court's judgment.