WALKER v. EUBANKS LLC (2022)

OPINION

Appellant William P. Walker (“Walker”) appeals from the trial court's order granting Appellees Rhett Eubanks, Regan Eubanks, and Cannonball Logistics LLC's motion for summary judgment on Walker's breach of contract claims. In two issues, Walker contends the trial court erred in granting summary judgment because (1) there are genuine issues of material fact as to each of the elements of his claims, and (2) the trial court's ruling was based on an incomplete and inaccurate reading of his summary judgment response and it failed to consider his summary judgment evidence.

We affirm.

Background

Walker owned and operated Marwalk Logistics (“Marwalk”), a freight brokerage company whose services included identifying interstate trucking companies for its customers and facilitating the interstate transport of their goods. In 2014, after his company experienced financial difficulties, Walker entered into an Independent Contractor Agreement (“2014 Agreement”) with Cannonball Logistics, LLC (“Cannonball”), a company owned by Rhett Eubanks (“Rhett”) and Regan Eubanks (“Regan”), to work as a logistics technician for Cannonball. Walker and Rhett, in his representative capacity as Cannonball's Chief Operating Officer, signed the 2014 Agreement.

In 2018, Walker and Cannonball entered into a second Independent Contractor Agreement (“2018 Agreement”). The terms of the 2018 Agreement were substantially the same as those of the 2014 Agreement. Walker and Rhett, in his representative capacity as Cannonball's Vice President, signed the 2018 Agreement. Walker later terminated the agreements in October 2018.

Walker sued Cannonball, Rhett, and Regan (collectively, “Appellees”) asserting they breached the terms of the 2014 and 2018 Agreements in various ways. As for the 2014 Agreement, Walker alleged that Appellees (1) treated him as an employee rather than an independent contractor, (2) controlled access to Marwalk's server, (3) postponed Walker's loan and carrier payments, (4) took money from Walker's net income on individual loads (settlements) and his drivers’ settlements, (5) interfered in the operation of specific loads with Walker's customers, and (6) solicited several of Walker's longstanding customers. Walker also alleged that Appellees solicited Nucor Steel, one of Walker's customers, in violation of the non-compete provision in the 2018 Agreement. And he asserted that Rhett and Regan were liable for breach of the Agreements as the alter egos of Cannonball. Walker attached the 2014 and 2018 Agreements as exhibits to his Original Petition.

Appellees filed a general denial. In their answer, they claimed that Walker had not met the condition precedent under the Agreements requiring Walker to participate in dispute resolution and mediation before filing suit. Appellees also asserted that Walker had not mitigated his damages and they raised the affirmative defenses of estoppel and equitable estoppel. Rhett and Regan separately asserted that they were not liable in the capacity in which they were sued.

The trial court entered a docket control order setting trial of the case for January 8, 2021. The parties filed an agreed motion for continuance stating they required additional discovery. The trial court granted the motion and entered an amended docket control order setting a trial date of September 20, 2021.

Appellees amended their answer asserting waiver, laches, limitations, and the statute of repose as additional affirmative defenses. They also asserted that (1) the 2014 and 2018 Agreements lacked essential terms and were thus unenforceable, (2) Walker could not recover on his claim that Appellees breached the 2014 Agreement because the agreement had been superseded by the 2018 Agreement, (3) Walker's non-solicitation and non-interference claims were overly broad, ambiguous, vague, and unreasonable in time, geography, and scope, and lacked consideration, and (4) the 2014 and 2018 Agreements were void due to mutual mistake.

Appellees filed a combined no-evidence and traditional motion for summary judgment on Walker's claims. They argued there was insufficient or no evidence establishing (1) they breached either the 2014 Agreement or 2018 Agreement and (2) Walker had sustained damages as a result. Appellees further argued there was insufficient or no evidence they had improperly solicited Walker's customers or that Rhett or Regan was liable either individually or under an alter ego theory. Appellees contended they were entitled to summary judgment on traditional grounds because no genuine issue of material fact existed as to the individual liability of Rhett or Regan, and the statute of limitations barred Walker's claim for breach of contract.

Walker responded to Appellees’ motion arguing that discovery had been disrupted by Appellees’ actions and the pandemic but “[n]evertheless, the court is directed to the evidence submitted by [Walker] which shows that there is a wealth of disputed material facts in this case on all issues in this case.” Walker attached to his summary judgment response a 173-page exhibit consisting of his responses to Appellees’ first set of interrogatories (which he did not serve on Appellees) and an addendum to his discovery responses with accompanying exhibits consisting of numerous certificates of liability insurance, brokerage profit/loss reports, and various emails threads. Walker argued generally that the summary judgment evidence supported his breach of contract claims and that his claims were not barred by limitations because Appellees’ breaches were continuing in nature.

Appellees replied arguing that Walker failed to present competent summary judgment evidence on each of the challenged elements of his claims. They objected to Walker's summary judgment evidence as inadmissible arguing the evidence consisted of Walker's interrogatory responses which he never served on Appellees. They also argued that Walker's “addendum” was merely a lengthy unsworn statement consisting primarily of conclusory, self-serving statements and inadmissible hearsay. They argued that the attachments to the addendum should be stricken because (1) the certificates of liability insurance, without any explanation and standing alone, were meaningless, (2) the profit and loss reports were unsworn, unsupported by a business records affidavit, and constituted inadmissible hearsay, and (3) there was no indication in Walker's summary judgment response what the remaining attachments to the addendum purported to prove. Appellees reiterated their arguments that there was no or insufficient evidence of one or more elements of each of Walker's claims and that they were entitled to summary judgment as a matter of law.

The trial court granted Appellees’ traditional and no-evidence motion for summary judgment. At the bottom of its order, the trial court noted that:

Plaintiff filed a 173 page exhibit with the 166a(i) and 166a(c) response. Plaintiff fails to cite to the exhibit a single time other than stating “․ the court is directed to the evidence submitted by Plaintiff․” The Court grants the summary judgment motions based on Plaintiff's failure to direct this Court to the relevant evidence.

This appeal followed.

Discussion

In two issues, Walker contends the trial court erred in granting summary judgment on his claims because (1) genuine issues of material fact exist on each of the elements of his claims, and (2) the trial court's ruling was based on an incomplete and inaccurate reading of his summary judgment response. Walker also claims the trial court failed to consider his summary judgment evidence.

A. Standard of Review

We review a trial court's ruling on a motion for summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a party moves for both traditional and no-evidence summary judgment, we first review the trial court's ruling under the no-evidence standard of review. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the trial court properly granted the no-evidence motion, we need not analyze the arguments raised in the traditional summary judgment motion. Id.

After an adequate time for discovery, a party may move for a no-evidence summary judgment asserting that no evidence exists to support one or more essential elements of a claim on which the adverse party bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); see LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). The burden then shifts to the nonmovant to produce evidence raising a genuine issue of material fact on the challenged elements of his claim. Tex. R. Civ. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). A no-evidence summary judgment is improper if the nonmovant brings forth more than a scintilla of probative evidence raising a genuine issue of material fact. Forbes Inc. v. Granada Bioscis., Inc., 124 S.W.3d 167, 172 (Tex. 2003).

“Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id. (quoting King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (internal quotation omitted)). More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. Id. Unless the nonmovant raises a genuine issue of material fact, the trial court must grant summary judgment. Tex. R. Civ. P. 166a(i).

A party who files a no-evidence summary judgment motion under Rule 166a(i) essentially requests a pretrial directed verdict. Mack Trucks, 206 S.W.3d at 581. We review the evidence presented by the summary judgment record in the light most favorable to the party against whom summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Id. at 582 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). To challenge on appeal each possible ground advanced in support of the no-evidence summary judgment, an appellant must cite the specific evidence in the record he relied upon to defeat the motion and he must describe why that evidence raised a fact issue. Blake v. Intco Invs. of Tex., Inc., 123 S.W.3d 521, 525 (Tex. App.—San Antonio 2003, no pet.) (“An appellant has a duty to show that the record supports her contentions.”); Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 868 (Tex. App.—Houston [1st Dist.] 1999), aff'd, 73 S.W.3d 193 (Tex. 2002) (noting “general” assertions of existence of “genuine issues of material fact” are inadequate).

When reviewing a ruling on a traditional summary judgment motion, we take as true all evidence favorable to the nonmovant, and we indulge in every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating, 164 S.W.3d at 661 (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). To prevail on a traditional summary judgment motion, the movant must establish that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c).

B. Briefing Waiver

In his first issue, Walker contends “[t]he trial court erred in applying the appropriate standard for considering a case wherein there were numerous issues of disputed fact on what the actual discovery evidence shows, as well as the role of the trial judge.”¹ He argues “the trial court decided this case based on the briefing even though there was little agreement between the parties about what the material facts showed” and further that “the trial court's error may have been compounded by the fact that he may not have even reviewed all the briefing submitted by counsel because he did not prefer the form of the briefing.”

Appellees contend that Walker failed to brief his issue adequately and thus waived this issue for appellate review. They argue that Walker merely recites the standard of review applicable to a traditional motion for summary judgment but provides no argument or citation to the record or case law to apprise this Court of the evidence he asserts supports his claims or raises a genuine issue of material fact.

Our rules of appellate procedure have specific requirements for briefing. These rules require an appellant, among other things, to state concisely his complaint, provide succinct and clear argument for why his complaint has merit in fact and in law, and cite and apply authorities applicable to the lodged complaint along with appropriate record references. See Tex. R. App. P. 38.1 (f), (h), (i). We are not responsible for identifying possible trial court error, searching the record for facts favorable to a party's position, or conducting legal research to support a party's contentions. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 283–84 (Tex. 1994); Canton-Carter v. Baylor Coll. of Medicine, 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.); Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.). Were we to engage in such activities, we would be abandoning our role as judges and become an advocate for that party. See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex. App.—El Paso 2007, no pet.).

In his brief, Walker sets forth the standard of review applicable to a traditional motion for summary judgment ² and argues the trial court erred in applying the appropriate standard because the evidence showed there were numerous fact issues. Aside from these general statements, Walker fails to identify any issue of material fact he contends the evidence raised or otherwise point out any error allegedly committed by the trial court in granting summary judgment to Appellees on his breach of contract claims. See Bolling, 315 S.W.3d at 896 (stating that brief fails if court must speculate or guess about what contentions are being made). While Walker's brief includes a recitation of the facts he believes are relevant on appeal, he includes no substantive argument, record references, or relevant citation to legal authority. In re Estate of Taylor, 305 S.W.3d 829, 836 (Tex. App.—Texarkana 2010, no pet.) (stating failure to cite legal authority or to provide substantive analysis of issues presented results in waiver of complaint); Valadez, 238 S.W.3d at 845 (noting courts have no duty, or even right, to perform independent review of record and applicable law to determine whether there was error); see also Borisov v. Keels, No. 01-15-00522-CV, 2016 WL 3022603, at *2 (Tex. App.—Houston [1st Dist.] May 26, 2016, pet. denied) (mem. op.) (concluding plaintiff waived appellate issues where his brief did not include citations to either clerk's record or legal authorities). Having failed to comply with Texas Rule of Appellate Procedure 38.1, we hold Walker waived this issue for our review. See Fredonia State Bank, 881 S.W.2d at 284 (discussing longstanding rule that point may be waived due to inadequate briefing).

C. Summary Judgment Response and Evidence

In his second issue, Walker contends the trial court erred in granting summary judgment on his claims “based on an incomplete and inaccurate reading of [Walker's] response to [Appellees’] motion and a failure to duly consider [Walker's] summary judgment evidence.” Appellees respond that there is no basis to conclude the trial court failed to consider Walker's summary judgment evidence. They argue that, alternatively, the trial court was justified in refusing to consider Walker's evidence.

The trial court's order granting Appellees’ summary judgment motion stated:

ON THIS DAY came on to be heard Defendants Rhett Eubanks, Regan Eubanks and Cannonball Logistic, LLC's Traditional and No-Evidence Motion for Summary Judgment. After considering the Motion, any responses thereto, and arguments of counsel, the Court is of the opinion that the Motion should be in all things GRANTED.

IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Defendants Rhett Eubanks, Regan Eubanks and Cannonball Logistic, LLC's Traditional and No-Evidence Motion for Summary Judgment is in all things GRANTED.

At the bottom of the order, the trial court added the following notation:

Plaintiff filed a 173 page exhibit with the 166a(i) and 166a(c) response. Plaintiff fails to cite to the exhibit a single time other than stating “․ the court is directed to the evidence submitted by Plaintiff․” The Court grants the summary judgment motions based on Plaintiff's failure to direct this Court to the relevant evidence.

When responding to a summary judgment motion, the nonmovant must expressly and specifically identify the supporting evidence on file he wants the trial court to consider. See Speck v. First Evangelical Lutheran Church of Hous., 235 S.W.3d 811, 816 (Tex. App.—Houston [1st Dist.] 2007, no pet.); Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.—San Antonio 2006, no pet.); see also Tex. R. Civ. P.166a cmt. (stating that response must “point out evidence” raising fact issue on challenged elements). “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.” Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 776 (Tex. App.—Dallas 2013, pet. denied) (citing Leija v. Laredo Cmty. Coll., No. 04-10-00410-CV, 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.”); 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.”). Absent guidance from a nonmovant, trial and appellate courts are not required to sift through a voluminous file in search of evidence to support the nonmovant's argument that a fact issue exists. Aguilar v. Morales, 162 S.W.3d 825, 838 (Tex. App.—El Paso 2005, pet. denied); Shelton v. Sargent, 144 S.W.3d 113, 120 (Tex. App.—Fort Worth 2004, pet. denied); see also Brookshire Katy Drainage Dist. v. Lily Gardens, LLC, 333 S.W.3d 301, 308 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). A trial court does not abuse its discretion in failing to consider summary judgment evidence the nonmovant does not specifically bring to the trial court's attention. See Kastner, 2010 WL 4457461, at *8 (citing Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.—Houston [1st Dist.] 1996, no writ)).

Walker asserts that he provided “a clear and succinct summary of the evidence showing disputed issues of material fact ․” He states that “rather than merely pointing the Court to 173 pages of an exhibit, as the Court's Order implies, [he] cite[d] the Court to a six page sworn exhibit that includes [his] Affidavit and ․ [ ] Addendum to his discovery responses to [Appellees’] sole discovery requests․ The Addendum itself is the chosen organizational tool to direct the Court to the documents and testimony of [ ] Walker that is most relevant to [Appellees’] assertions in their Motion.”

Contrary to Walker's assertion, his summary judgment response referenced the 173-page summary judgment exhibit only generally. His response did not identify specifically the supporting proof he wanted the trial court to consider on any specific element of his claims nor did it make any argument or cite to any legal authority in support of his position. Rather, after asserting that discovery was hampered by Appellees’ actions and the pandemic, Walker stated “[n]evertheless, the court is directed to the evidence submitted by [Walker] which shows that there is a wealth of disputed material facts in this case on all issues in this case.” Walker also suggested the trial court could take notice of Appellees’ alleged wrongful actions “by review of [Walker's] discovery responses.”

With regard to Walker's assertion that he directed the trial court to a six-page sworn exhibit, this too is unavailing. The six-page exhibit to which Walker refers is his two-page sworn affidavit attached to his interrogatory responses and his four-page unsworn addendum consisting of Walker's narrative of the facts. We further note that Walker cited these pages not as evidence creating a fact issue as to any of the elements of his claims but instead in support of his assertion that “the pandemic reasserted itself and prevented the kind of robust litigation over [Walker's] need to obtain documents that are largely in the possession of the [Appellees].”

Walker did not cite, quote, or otherwise direct the trial court to the evidence he argued created a fact issue on any of his claims. Nor did Walker's response contain any analysis of the evidence or an explanation of how his 173-page exhibit raised any issue of material fact. Under these circumstances, we conclude the trial court did not abuse its discretion in granting Appellees’ no-evidence motion for summary judgment. See White v. Calvache, No. 05-17-00127-CV, 2018 WL 525684, at *4 (Tex. App.—Dallas Jan. 24, 2018, no pet.) (mem. op.) (concluding that in reviewing trial court's grant of no-evidence summary judgment, appellate court would consider only evidence for which appellant had provided specific reference and location in record); Moon Sun Kang v. Derrick, No. 14-13-00086-CV, 2014 WL 2048424, at *8 (Tex. App.—Houston [14th Dist.] May 15, 2014, pet. denied) (mem. op.) (affirming grant of no-evidence summary judgment when nonmovants’ responses contained only general citations to incorporated affidavits and exhibits and failed to cite to specific evidence); Nguyen, 404 S.W.3d at 776–77 (concluding trial court did not abuse discretion in determining summary judgment response lacked specificity when nonmovant merely referenced groups of exhibits consisting of hundreds of pages and failed to cite, quote, or otherwise point out evidence relied upon); Stephens v. Precision Drilling Oilfield Servs. Corp., No. 01-11-00326-CV, 2013 WL 1928797, at *6 (Tex. App.—Houston [1st Dist.] May 9, 2013, no pet.) (mem. op.) (concluding nonmovant's general reference to materials incorporated by reference in summary judgment response was ineffective to point out any particular evidence for purpose of responding to movant's no-evidence summary judgment motion); Levine v. Unique Beverage Co., No. 05-11-01467-CV, 2013 WL 1281896, at *3 (Tex. App.—Dallas Mar. 19, 2013, pet. denied) (mem. op.) (concluding trial court was not required to search through ninety-eight pages of evidence attached to plaintiff's response to locate summary judgment evidence raising genuine issue of material fact without specific guidance from plaintiff); Leija, 2011 WL 1499440, at *5 (“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.”); Norris v. Tenet Hous. Health Sys., No. 14-04-01029-CV, 2006 WL 1459958, at *9–10 (Tex. App.—Houston [14th Dist.] May 30, 2006, no pet.) (mem. op.) (concluding that trial court did not err in granting no-evidence summary judgment when nonmovant globally stated facts, attached approximately one hundred pages of evidence, and did not explain how evidence supported any of challenged elements of her causes of action).

Having reached this conclusion, we need not address Appellees’ traditional motion for summary judgment. We overrule Walker's second issue.

Conclusion

We affirm the trial court's judgment.

FOOTNOTES

1.   Under the heading “Issue Number 1,” Walker argues “the trial court erred and abused its discretion in granting [Appellees’] plea to the jurisdiction and motion for summary judgment ․” Appellees, who are not governmental entities, did not file a plea to the jurisdiction.

2.   Walker does not mention the standard applicable to a no-evidence motion for summary judgment which Appellees also filed.

Veronica Rivas-Molloy, Justice