COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-262-CV
WILLIAM WYROSKI APPELLANT
V.
DANNY R. CHOATE AND APPELLEES
INSULTECH OF TEXAS, INC.,
D/B/A INSULTECH
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1 ON REHEARING
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I. INTRODUCTION
On February 28, 2008, this Court issued an opinion affirming the trial
court’s judgment. Appellant William Wyroski filed a motion for rehearing. After
due consideration, we deny Wyroski’s motion for rehearing, but we withdraw
1
… See T EX. R. A PP. P. 47.4.
our opinion and judgment dated February 28, 2008, and substitute the
following. Our disposition of this case remains unchanged.
This is a summary judgment appeal. Wyroski sued Appellees Danny
Choate and Insultech of Texas, Inc. (Insultech), claiming that he and Choate
were equal partners of Insultech and that when he left Insultech, Choate failed
to pay him half of Insultech’s book value as the two had purportedly verbally
agreed. Appellees moved for summary judgment, the trial court granted
summary judgment, and now Wyroski brings four grounds 2 in this appeal
challenging the summary judgment in favor of Choate and Insultech. We will
affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
In early 2003, Wyroski, who has over twenty years of experience in the
business of installing and servicing heating, venting, and air conditioning
(HVAC) systems, lost his job when his company downsized. Choate had
previously worked with Wyroski, and when Wyroski left his job, he, Choate,
and a mutual friend discussed working in a HVAC business together. The
deposition testimony varied as to whether the three were to be equal partners
2
… Appellant uses the term “grounds” to describe the issues he presents
on appeal; we, therefore, will similarly refer to his issues presented as grounds
of error.
2
in the business or whether Choate was to be the boss and sole owner of the
company. But Wyroski claimed that, even though many specifics of the joint
ownership were not discussed and nothing was put into writing, the three
nevertheless intended to be equal partners of Insultech.
By late 2004, Wyroski and Choate were fighting, and Wyroski decided to
leave Insultech (the mutual friend had left Insultech shortly after he began
working there). Wyroski asked for half of the book value of Insultech, and,
according to Wyroski’s original petition, Choate agreed to buy Wyroski “out of
his 50% of the business using Insultech book values for the year end 2004 as
the basis for the valuation of . . . Wyroski’s 50% share.”
Choate never paid Wyroski, so Wyroski brought suit on breach of
contract, quantum meruit, unjust enrichment, and promissory estoppel claims.
After discovery, Choate and Insultech filed a combined traditional and no-
evidence motion for summary judgment, asserting as one of four bases for
summary judgment that Wyroski had no damages. The trial court granted
Choate and Insultech’s motion without stating the ground on which it based the
summary judgment. Wyroski now appeals.
III. S TANDARDS OF R EVIEW
In a traditional summary judgment case, the issue on appeal is whether
the movant met the summary judgment burden by establishing that no genuine
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issue of material fact exists and that the movant is entitled to judgment as a
matter of law. T EX. R. C IV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73
S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589
S.W.2d 671, 678 (Tex. 1979). The burden of proof is on the movant, and all
doubts about the existence of a genuine issue of material fact are resolved
against the movant. Sw. Elec. Power Co., 73 S.W.3d at 215.
W hen reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant, and we 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). Evidence that favors the movant’s
position will not be considered unless it is uncontroverted. Great Am. Reserve
Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).
A defendant who conclusively negates at least one essential element of
a cause of action is entitled to summary judgment on that claim. IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W .3d 794, 798 (Tex.
2004). Once the defendant produces sufficient evidence to establish the right
to summary judgment, the burden shifts to the plaintiff to come forward with
competent controverting evidence raising a genuine issue of material fact with
regard to the element challenged by the defendant. Centeq Realty, Inc. v.
Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
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After an adequate time for discovery, the party without the burden of
proof may, without presenting evidence, move for summary judgment on the
ground that there is no evidence to support an essential element of the
nonmovant’s claim or defense. T EX. R. C IV . P. 166a(i). The motion must
specifically state the elements for which there is no evidence. Id.; Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court
must grant the motion unless the nonmovant produces summary judgment
evidence that raises a genuine issue of material fact. See T EX. R. C IV. P. 166a(i)
& cmt.; Sw. Elec. Power Co., 73 S.W.3d at 215.
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a
scintilla of probative evidence that raises a genuine issue of material fact, then
a no-evidence summary judgment is not proper. Moore v. K Mart Corp., 981
S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied).
IV. C HOATE AND INSULTECH’S S UMMARY J UDGMENT E VIDENCE
In support of their “no damages” ground for traditional summary
judgment, Choate and Insultech attached the affidavit of Insultech’s certified
public accountant as summary judgment evidence. That affidavit establishes
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that, under generally accepted accounting principles (GAAP), at the end of
2004 Insultech’s book value was negative $159,314. Insultech’s balance
sheet, showing the breakdown of its assets, liabilities, and stockholder’s equity,
is attached to the accountant’s affidavit. Thus, Choate and Insultech
conclusively negated the damages element of Wyroski’s claim—even if Wyroski
was entitled to 50% of the book value of Insultech at the end of 2004, that
value was negative. See Mason, 143 S.W.3d at 798. Consequently, the
burden shifted to Wyroski to present controverting summary judgment evidence
raising a genuine issue of material fact concerning the book value of the
company at the end of 2004. See Centeq Realty, Inc., 899 S.W.2d at 197.
Wyroski apparently attempted to meet this burden by attaching his
deposition as summary judgment evidence. In his deposition, Wyroski attacks
the valuation method used by Insultech’s accountant as reflecting an inherently
unreliable figure because it failed to take into account earning capacity, going
concern, or goodwill values. But Wyroski presented no summary judgment
evidence that a book value calculation based on something other than GAAP
should be used (i.e., using the items urged by Wyroski), was commonly used
in the industry, or was actually agreed upon by he and Choate. In fact, the only
potential summary judgment evidence proffered by Wyroski concerning the
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company’s value was his own testimony that Choate had told him that the
company had a $700,000 net profit.3
3
… After testifying that Choate had told him that the company had a
$700,000 net profit, Wyroski testified to the following:
Q. Well, it sounds like that -- that your understanding of
what the value of the company was always from what [Choate]
was telling you.
A. Correct.
Q. Okay. Did you ever independently calculate the value
of the company?
A. No, I did not.
Q. Did you ever see anything that reflected the value of
the company at any time before you left, other than what [Choate]
showed you . . . ?
A. No, I did not.
Q. Did you -- anybody else talk to you about the value of
the company?
A. No.
Q. And do you have any other basis for estimating the
value of the company at that time, in October -- the fall of ‘04,
other than what you’ve told me about so far?
A. Just our conversations.
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Wyroski’s deposition testimony concerning his belief as to the book value
of the company in the fall of 2004, even viewed in the light most favorable to
Wyroski, does not raise a genuine issue of material fact controverting the
summary judgment evidence that Insultech had a negative book value at the
end of 2004.4 See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991)
(stating that “[l]ay testimony is insufficient to refute an expert’s testimony” in
summary judgment proceedings). Thus, Wyroski failed to meet the summary
judgment burden that shifted to him when Choate and Insultech conclusively
negated the damages element of Wyroski’s claim. See Centeq Realty, Inc., 899
S.W.2d at 197. We hold that the trial court did not err by granting Choate and
Insultech’s motion for summary judgment on Wyroski’s breach of contract
claim.
In the alternative, Wyroski asserts equitable claims against Choate for
quantum meruit, unjust enrichment, and promissory estoppel. Choate filed a
no-evidence motion for summary judgment on all claims, including these, and
our evaluation of the record has uncovered no evidence of any amount of
4
… Although Wyroski testified that he once saw the $700,000 figure on
Choate’s computer, Wyroski admitted that the numbers on Choate’s computer
were a reflection of the “circle” of both incoming and outgoing money from
Insultech. When specifically asked about where the $700,000 was, Wyroski
said that it was in “[s]ome bank” where the money was “coming in” but
“mostly going out.”
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damages asserted by Wyroski against Choate concerning these equitable
theories. Wyroski first claimed that he had worked without pay for a period of
time but admitted that he received a weekly paycheck and a W2 form for most
of the time that he was with the company. Wyroski further claimed that he had
bought materials for the company without being fully reimbursed. Wyroski
provided no specifics on exactly which materials he bought, where he bought
them, how much he paid for them, or how much he was reimbursed. When
questioned whether he had “any idea or concept to quantify . . . the amount
you gave or the amount that you were reimbursed,” Wyroski admitted that he
did not. And while he said that he could provide documents showing these
amounts, Wyroski never produced any documents, to rebut Choate’s no-
evidence motion for summary judgment concerning damages related to the
equitable theories. Accordingly, we hold that the trial court did not err by
granting Choate and Insultech’s no-evidence motion for summary judgment on
Wyroski’s equitable claims.5
5
… Choate and Insultech are entitled to summary judgment because they
conclusively negated the damage element of all of Wyroski’s claims and
because Wyroski presented no evidence of damages on his equitable claims;
consequently, we need not address the remaining grounds presented in this
appeal by Wyroski. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d
868, 872–73 (Tex. 2000) (holding where summary judgment does not specify
grounds relied on, reviewing courts are to affirm if any ground is meritorious);
Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 130 (Tex. App.—Houston
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V. C ONCLUSION
Having determined that summary judgment was proper in this case, we
affirm the trial court’s judgment.
SUE WALKER
JUSTICE
PANEL A: CAYCE, C.J.; HOLMAN and WALKER, JJ.
DELIVERED: June 19, 2008
[14th Dist.] 1994, no writ) (recognizing that because defendant is entitled to
summary judgment based on its negation of damage element of plaintiff’s claim,
it is unnecessary to consider remaining grounds presented in the motion).
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