For=20 The
REBECCA =
PENA,=20
Appellant JE =
MATADI DRESS=20
COMPANY, INC. AND SEAN MEHTA, Appellees
On =
Appeal from the=20
151st District Court Harris =
County,=20
Texas Trial =
Court Cause=20
No. 2004-57614
MEMORANDUM=20
OPINION Appellant, Rebecca Pena, =
appeals the=20
judgment of the trial court that granted summary judgment in favor =
of=20
appellees, Je Matadi Dress Company, Inc. ("Matadi") and Sean =
Mehta. In=20
four issues on appeal, Pena argues that the trial court erred in =
granting=20
summary judgment on (1) her fraud claim; (2) =
her duress=20
claim; (3) Matadi's affirmative defense of release of claims; and =
(4)=20
Matadi's motion for summary judgment because it did not address =
Pena's=20
breach of contract claims against Mehta and thus the final =
judgment did=20
not dispose of those claims. We affirm.
In May 2003, Pena and Matadi =
entered into=20
an agreement (the "Patent Assignment") regarding the marketing of =
a=20
patented hair dryer stand known as the "Hair Made." At the time of =
the=20
agreement, Pena was employed by Matadi. The Patent Assignment =
required=20
Pena to assign her patent for the Hair Made to Matadi in exchange =
for=20
$20,000 and royalties from future sales of the Hair =
Made. In her original petition, Pena =
alleged=20
that Matadi and Mehta The trial=20
court granted summary judgment in favor of appellees. Appellees =
then filed=20
a notice of non-suit for their counterclaims, which the trial =
court=20
signed, thus making the judgment final. Pena appeals from the =
trial=20
court's order that granted summary judgment in favor of=20
appellees.
The movant=20
for traditional summary judgment has the burden of showing that =
there is=20
no genuine issue of material fact and that he is entitled to =
judgment as a=20
matter of law. Tex. R. Civ. P. 166a(c); Park Place Hosp. v. =
Estate of=20
Milo, 909 S.W.2d 508, 510 (Tex. 1995); Nixon v. Mr. Prop. =
Mgmt.=20
Co., 690 S.W.2d 546, 548 (Tex. 1985). A defendant moving for=20
traditional summary judgment must either disprove at least one =
element of=20
each of the plaintiff's causes of action or conclusively establish =
each=20
essential element of its affirmative defense, thereby rebutting =
the=20
plaintiff's causes of action. Cathey v. Booth, 900 S.W.2d =
339,=20
341 (Tex. 1995). A =
no-evidence motion for summary judgment is essentially a directed =
verdict=20
granted before trial, to which we apply a legal-sufficiency =
standard of=20
review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, =
750-51 (Tex.=20
2003). In general, a party seeking a no-evidence summary judgment =
must=20
assert that no evidence exists as to one or more of the essential =
elements=20
of the non-movant's claims on which the non-movant would have the =
burden=20
of proof at trial. Flameout Design & Fabrication, =
Inc. v.=20
Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. =
App.--Houston [1st=20
Dist.] 1999, no pet.). Once the movant specifies the elements on =
which=20
there is no evidence, the burden shifts to the non-movant to raise =
a fact=20
issue on the challenged elements. Tex. R. Civ. P. 166a(i). A =
no-evidence=20
summary judgment will be sustained on appeal when (1) there is a =
complete=20
absence of evidence of a vital fact, (2) the court is barred by =
rules of=20
law or of evidence from giving weight to the only evidence offered =
by the=20
non-movant to prove a vital fact, (3) the evidence offered by the=20
non-movant to prove a vital fact is no more than a scintilla, or =
(4) the=20
non-movant's evidence conclusively establishes the opposite of a =
vital=20
fact. King Ranch, 118 S.W.3d at 751. In her=20
first issue, Pena argues that the trial court erred in granting =
summary=20
judgment on her claim for fraud. Specifically, she asserts that =
statements=20
within the Patent Assignment were false. The=20
elements of fraud are: (1) the speaker made a material =
representation that=20
was false when made; (2) when the representation was made, the =
speaker=20
knew it was false or made it recklessly as a positive assertion =
without=20
any knowledge of its truth; (3) the speaker made the =
representation with=20
the intent that the other party should act upon it; (4) the party =
actually=20
and justifiably relied on the representation; and (5) the party =
thereby=20
suffered injury. Ernst Young, L.L.P. v. Pac. Mut. Life Ins. =
Co.,=20
51 S.W.3d 573, 577 (Tex. 2001). "For a promise of future =
performance to be=20
the basis of actionable fraud, it must have been false at the time =
it was=20
made." Schindler v. Austwell Farmers Coop., 841 S.W.2d =
853, 854=20
(Tex. 1992). In its=20
no-evidence motion for summary judgment, appellees argued that =
there was=20
no evidence that they had made a false representation to Pena. =
Appellees=20
pled that There is no=20
evidence that the Defendants have ever lied to the Plaintiff about =
accounting figures related to the sales or profitability of the =
Hair Made.=20
There is no evidence that any of the accounting figures that the=20
Defendants have ever provided to the Plaintiff regarding the sales =
and/or=20
profitability of the Hair Made are inaccurate. The Plaintiff's =
unsupported=20
allegations contained within her deposition do not constitute =
evidence in=20
which to support the Plaintiff's false fraud claims against the=20
Defendants. In her=20
response to appellees' motion for summary judgment, Pena =
stated The=20
Plaintiff was clear in her deposition that all of the elements of =
fraud=20
are present. In her deposition testimony, she identifies a =
material=20
misstatement of fact, asserts that it was consistent and =
intentional,=20
discusses her reliance on the fraudulent statements, and confirms =
her very=20
obvious harm as a result of the fraud. Ms. Pena's=20
accusations are not the only evidence of fraud. There is also the=20
impressive quality of advertising for the Hair Made Product. Such=20
advertising, we can presume, would not be conducted (and paid for) =
without=20
concomitant sales and profits. Additionally, there is also the =
obvious=20
effort to hide, from the plaintiff, any and all sales and cost =
data. The=20
details would be before the Court now, if the Defendants would go =
beyond=20
their four pieces of paper and comply with their discovery =
obligations. On appeal,=20
Pena now asserts that statements within section 3.1.2 Paragraph=20
3.1.2 of the Assignment of Patent reflects a representation that =
the=20
Appellant might expect to receive up to $1,980,000.00 in royalty =
payments=20
from the Appellees within five years after executing the =
Assignment of=20
Patent. That representation was material because it induced the =
Plaintiff=20
to enter into the agreement. Yet, within that very same paragraph, =
the=20
Appellees also state that, 'Assignee shall not pay Assignor any =
payments=20
based on commercialization of items sold in conjunction with =
Patented=20
Products.' Further, when this paragraph is combined with paragraph =
3.2, it=20
is clear that the Appellees not only intended to deprive the =
Appellant of=20
consideration, but, the contract itself could not be terminated by =
the=20
contemplated failure to pay consideration, or provide future =
performance.=20
That constitutes a one-sided agreement which reflects an intent on =
the=20
face of the contract to defraud the Appellant in the =
future. Pena's=20
arguments are raised for the first time on appeal. Because Pena =
did not=20
raise these arguments with the trial court, her arguments have =
been=20
waived. See Tex. R. App. P. 33.1; Tex. R. Civ. P. 166a(c) =
("Issues not expressly presented to the trial court by written =
motion,=20
answer[,] or other response shall not be considered on appeal as =
grounds=20
for reversal."); City of Houston v. Clear Creek Basin =
Auth., 589=20
S.W.2d 671, 677 (Tex. 1979) ("[T]he non-movant may not urge on =
appeal as=20
reason for reversal of the summary judgment any and every new =
ground that=20
he can think of, nor can he resurrect grounds that he abandoned at =
the=20
hearing."). We overrule=20
Pena's first issue. In her=20
second issue, Pena argues that the trial court erred in granting =
summary=20
judgment on her claim for duress. The=20
elements of economic duress are: (1) a threat to do something that =
a party=20
has no legal right to do; (2) illegal exaction or some fraud or =
deception;=20
and (3) imminent restraint such as to destroy free agency without =
present=20
means of protection. King v. Bishop, 879 S.W.2d 222, 223 =
(Tex.=20
App.--Houston [14th Dist.] 1994, no writ); Simpson v. MBank =
Dallas,=20
N.A., 724 S.W.2d 102, 109 (Tex. App.--Dallas 1987, writ ref'd =
n.r.e.). In their=20
no-evidence motion for summary judgment, appellees argued that =
because=20
they had the legal right to terminate Pena's employment for any =
reason=20
without cause, Pena did not have a successful duress claim as a =
matter of=20
law. In=20
response, Pena did not disagree that Matadi had the legal right to =
terminate her employment. Rather, Pena stated that "the Defendants =
freely=20
acknowledge that the Plaintiff alleges that the Defendants made =
'thinly=20
veiled threats concerning her termination.'" She further asserted, =
[T]he=20
Defendants argue that they are nonetheless entitled to Summary =
Judgment=20
because both Defendants 'deny that they ever threatened . . . the=20
Plaintiff that she would lose her job." Of course they do. But, =
their=20
denial is only further support for the existence of a material =
issue of=20
fact. The denial, however, does not a lack of evidence make."=20
On appeal,=20
Pena argues that while the parties were negotiating the Patent =
Assignment,=20
Pena was a high school graduate, an employee of Matadi, and she =
never took=20
any business courses in college. She asserts, The=20
evidence produced by the Appellees during summary judgment clearly =
reflects that the Appellant was in imminent fear of her employment =
being=20
terminated if she did not agree to sign the Assignment of Patent =
in the=20
one-sided form reflected by the document itself. That evidence =
(the=20
Appellant's deposition) constitutes more than a scintilla of =
evidence of=20
economic duress . . . . By threatening the Appellant (who was =
merely a=20
high school graduate, with no experience in matters of business) =
with=20
termination of her employment (which in turn threatens the ability =
of the=20
Appellant to provide the necessities of life for her family), the=20
Appellees gained an unfair bargaining position over a mere high =
school=20
graduate, which they intentionally used to the detriment of the =
Appellant.=20
Pena's=20
appellate arguments are raised for the first time on appeal. =
Because Pena=20
did not raise her appellate arguments with the trial court, her =
arguments=20
on appeal have been waived. See Tex. R. App. P. 33.1; =
Tex. R.=20
Civ. P. 166a(c) ("Issues not expressly presented to the trial =
court by=20
written motion, answer[,] or other response shall not be =
considered on=20
appeal as grounds for reversal."); Clear Creek Basin =
Auth., 589=20
S.W.2d at 677 ("[T]he non-movant may not urge on appeal as reason =
for=20
reversal of the summary judgment any and every [n]ew ground that =
he can=20
think of, nor can he resurrect grounds that he abandoned at the=20
hearing."). Moreover,=20
Pena's brief addresses only the no-evidence portion of the =
appellees'=20
motion for summary judgment. Pena's brief does not appear to =
address the=20
traditional summary judgment portion of the appellees' summary =
judgment=20
motion. Pena has set forth no issue, argument, or discussion =
challenging=20
the traditional portion of the summary judgment motion; thus, she =
has not=20
met her appellate burden to establish that the trial court's =
judgment was=20
erroneous. Because summary judgment may have been granted on the=20
unchallenged traditional portion of appellees' motion, we must =
affirm the=20
trial court's judgment on this ground. See Holloway v. =
Starnes,=20
840 S.W.2d 14, 23 (Tex. App.--Dallas 1992, writ denied); King =
v. Tex.=20
Employers' Ins. Ass'n, 716 S.W.2d 181, 182-83 (Tex. =
App.--Fort Worth=20
1986, no writ); Malooly Bros., Inc. v. Napier, 461 S.W.2d =
119,=20
121 (Tex. 1970). We overrule=20
Pena's second issue. In her=20
third issue, Pena argues that the trial court erred in granting =
summary=20
judgment on Matadi's affirmative defenses of release of claims, =
"inasmuch=20
as the parties can not contract [to] actually release claims for =
future=20
and/or illegal conduct." On their affirmative defense of release,=20
appellees asserted, [A]s a=20
matter of law, [Pena] is barred from successfully asserting that =
the=20
Defendants engaged in fraud or that the Patent Assignment was =
obtained by=20
duress or is unconscionable as a result of any alleged =
pre-execution=20
conduct on the part [of] the Defendants. Even if the Court were to =
take=20
all of the Plaintiff's allegations as true, the summary judgment =
record=20
conclusively establishes that the Plaintiff has released the =
Defendants=20
from all such claims and causes of action and the Defendants are =
therefore=20
entitled to summary judgment as a matter of law in accordance with =
Tex. R.=20
Civ. P. 166a(c). Pena did=20
not address appellees' affirmative defense argument in her =
response to=20
appellees' motion for summary judgment. On appeal,=20
Pena argues that the trial court erred in granting summary =
judgment on the=20
appellees' affirmative defenses. Because she raises these =
arguments for=20
the first time on appeal, Pena's arguments have been waived. =
See=20
Tex. R. App. P. 33.1; Tex. R. Civ. P. 166a(c). We overrule=20
Pena's third issue. In her=20
fourth issue, Pena argues that the trial court erred in granting =
summary=20
judgment on her breach of contract claim against Sean Mehta =
because that=20
issue was not addressed in appellees' motion for summary judgment. =
Thus,=20
Pena argues that the "claim was neither addressed, nor disposed of =
by the=20
trial court, and granting final summary judgment on a claim not =
disposed=20
of is clear error on the part of the trial court." The purpose=20
of requiring that a motion for summary judgment state its specific =
grounds=20
is to give fair notice to the opponent and define the issues, and, =
for=20
that reason, a defendant-movant is not entitled to summary =
judgment on a=20
ground not asserted in his motion, even though the summary =
judgment proof=20
conclusively establishes his right to judgment on that ground. =
See=20
Tex. R. Civ. P. 166a(c); Chessher v. Southwestern Bell =
Tel.=20
Co., 658 S.W.2d 563, 564 (Tex. 1983). A defendant-movant is =
not=20
entitled to summary judgment on the entirety of a nonmovant =
plaintiff's=20
case unless the motion addresses each cause of action asserted by =
the=20
nonmovant. Id. We disagree=20
with Pena's contention that Mehta failed to raise his breach of =
contract=20
claim in appellees' motion for summary judgment. Appellees' =
summary=20
judgment motion informed the trial court and Pena that the Patent=20
Assignment was between Pena and Matadi. Specifically, the motion =
stated in=20
a footnote, "The Court should note that the Patent Assignment is a =
contract between the Plaintiff and Defendant Je Matadi only. =
Defendant=20
Sean Mehta is not a party to the agreement." Appellees referenced =
the=20
Patent Assignment that was attached to their summary judgment =
motion. In=20
addition, in the conclusion of their motion for summary judgment,=20
appellees stated, "[T]here is no evidence to support Plaintiff's =
fraud and=20
breach of contract claims against the Defendants . . . ." In their =
reply=20
to Pena's response to the summary judgment motion, appellees =
asserted,=20
"[T]he Plaintiff has failed to establish that she ever had a =
contract with=20
Defendant Sean Mehta, individually." Pena=20
presented no evidence in response to Mehta's statement that he was =
not a=20
party to the Patent Assignment, and the record explicitly =
demonstrates=20
that the Patent Assignment was between Pena and Matadi and signed =
by Mehta=20
only in his capacity as president and CEO. See City of =
Pasadena v.=20
Gennedy, 125 S.W.3d 687, 702 n.12 (Tex. App.--Houston [1st =
Dist.]=20
2003, pet. denied) (concluding that party signed in corporate =
capacity).=20
We conclude that the summary judgment motion adequately informed =
Pena that=20
appellees were seeking summary judgment on Pena's breach of =
contract claim=20
against Mehta. We overrule=20
Pena's fourth issue.
We affirm=20
the judgment of the trial court. Evelyn V.=20
Keyes Panel=20
consists of Justices Nuchia, Jennings, and Keyes. 1. Sean Mehta is the president of Matadi =
Dress=20
company.=20
2. A portion of Pena's response to the =
summary=20
judgment addressed appellees' discovery violations. The trial =
court=20
granted Pena additional time to conduct more discovery and =
appellees=20
apparently gave Pena more discovery. Pena did not, however, amend =
her=20
response to appellees' motion for summary judgment in light of the =
additional discovery.=20
3. Paragraph=20
3.1.2 provides,
For a period of 5 years from =
the=20
Effective Date, but only during the life of the '805 patent, and =
only if=20
Net Profits occur, 3% of Net Profits (defined as revenues of =
sales, within=20
the US and for end use within the US, by Assignee of Patented =
Products,=20
less Deductible expenses listed in Attachment A, which is =
incorporated=20
herein by reference) ("Future Payments"), but only until the total =
payments made to Assignor according to this provision equal =
$1,980,000.00.=20