COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-347-CV
DONG JAE SHIN AND KING’S APPELLANTS
TIRE AND AUTO DFW, INC. AND APPELLEES
V.
SOLIAMAN SHARIF APPELLEE
AND APPELLANT
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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
Appellants and Cross-Appellees Dong Jae Shin (“Shin”) and King’s Tire
and Auto DFW, Inc. (“DFW”) appeal the trial court’s grant of two summary
judgments in favor of Appellee and Cross-Appellant Soliaman Sharif. In his
1
… See Tex. R. App. P. 47.4.
appeal, Sharif appeals the trial court’s overruling of his objections to Appellants’
summary judgment responses and evidence. We will affirm.
II. B ACKGROUND
Sharif owned King’s Tire and Auto, Inc. (“King’s Tire”), a Texas
corporation engaged in the wholesale and retail sale of tires, wheels, and auto
accessories. In September 2006, Sharif sold King’s Tire to DFW for $2.9
million.2 As part of the purchase, Shin paid Sharif $1 million at the closing, and
DFW executed two promissory notes dated October 2, 2006, in favor of Sharif:
one in the amount of $200,000 and the other in the amount of $1.7 million.
Shin executed a “Guaranty” for the $200,000 promissory note and a
“Guaranty” for the $1.7 million promissory note. DFW also entered into a
“Lease with Purchase Option” agreement with Sharif in which DFW leased the
business property from Sharif for $3,700 per month.
Sharif subsequently sued Appellants for, among other things, breach of
contract. Sharif alleged that DFW failed to make any payments under either
promissory note, that Shin “failed and refused to make[] any payments or
otherwise guarantee the obligations described in the Guaranty Agreement,
despite demands from” Sharif, and that Shin was in breach of the guarantee
2
… According to Sharif, Shin is the President of DFW, an entity that he
formed.
2
agreements. Appellants answered and asserted counterclaims against Sharif
for fraudulent inducement, common law fraud, violations of the Texas
Deceptive Trade Practices Act, breach of contract, conversion, and unjust
enrichment. Appellants sought economic, actual, multiple, and exemplary
damages and also sought damages for mental anguish.
Sharif filed a motion for partial summary judgment, arguing that he has
a security interest as a matter of law in the inventory, assets, and equipment
pursuant to the lease agreement and the promissory notes. Sharif later filed a
second motion for partial summary judgment on his claims for breach of the
guaranty agreements; he asked the trial court to enter an order that Shin be
held personally liable for breach of both guaranty agreements and that he
recover damages from Shin in the amounts of $200,000 and $1.7 million.
Sharif also filed a no-evidence motion for summary judgment on Appellants’
counterclaims and damages.
Sharif filed objections to Appellants’ responses to the second motion for
partial summary judgment and the no-evidence motion for summary judgment.
The trial court signed an amended final judgment granting all three of Sharif’s
motions for summary judgment, and it ordered that Sharif recover from Shin
damages in the total amount of $1.9 million. These appeals followed.
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III. S TANDARDS OF R EVIEW
Under a traditional motion for summary judgment, the issue on appeal is
whether the movant met the summary judgment burden by establishing that no
genuine issue of material fact exists and that the movant is entitled to judgment
as a matter of law. Tex. R. Civ. 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. 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). The summary judgment will be affirmed only
if the record establishes that the movant has conclusively proved all essential
elements of the movant’s cause of action or defense as a matter of law. Clear
Creek Basin, 589 S.W.2d at 678.
Under a no-evidence motion for summary judgment, 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
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nonmovant’s claim or defense. Tex. R. Civ. 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 Tex. R. Civ. 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). We review a
no-evidence summary judgment for evidence that would enable reasonable and
fair-minded jurors to differ in their conclusions. Hamilton v. Wilson, 249
S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802,
822 (Tex. 2005)).
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IV. G UARANTY A GREEMENTS
In Appellants’ second issue, Shin argues that the trial court erred by
granting Sharif’s second motion for partial summary judgment on Sharif’s
claims for breach of the guaranty agreements.
A guaranty agreement is a person’s promise to perform the same act that
another person is contractually bound to perform. Simmons v. Compania
Financiera Libano, S.A., 830 S.W.2d 789, 792 (Tex. App.—Houston [1st Dist.]
1992, writ denied). A guaranty creates a secondary obligation under which the
guarantor promises to answer for the debt of the primary obligor if the primary
obligor fails to perform. Garner v. Corpus Christi Nat’l Bank, 944 S.W.2d 469,
475 (Tex. App.—Corpus Christi 1997, writ denied). To recover under a
guaranty agreement, a plaintiff must show (1) the existence and ownership of
the guaranty agreement, (2) the terms of the underlying contract by the holder,
(3) the occurrence of the conditions upon which liability is based, and (4) the
failure or the refusal to perform the promise by the guarantor. Byrd v. Estate
of Nelms, 154 S.W.3d 149, 157 (Tex. App.—Waco 2004, pet. denied); Roye
Enter., Inc. v. Roper, No. 02-04-00132-CV, 2005 WL 1791964, at *3 (Tex.
App.—Fort Worth July 28, 2005, no pet.) (mem. op.); see also Simpson v.
MBank Dallas, N.A., 724 S.W.2d 102, 107 (Tex. App.—Dallas 1987, writ ref’d
6
n.r.e.) (stating that when a guaranty is in writing and signed by the guarantor,
the guaranty’s existence presumes consideration).
Here, both guaranty agreements are in writing, both are signed by Shin,
and both are dated October 2, 2006—the same date that DFW executed the
promissory notes. Both guaranty agreements identify Shin as the “Guarantor,”
DFW as the “Borrower,” and Sharif as the “Lender.” The “Guaranteed
Indebtedness” for the $200,000 promissory note is “[t]he debt evidenced by
the note dated October 2, 2006, in the original principal amount of
$200,000.00, executed by [DFW] and payable to the order of [Sharif].” The
“Guaranteed Indebtedness” for the $1.7 million promissory note is “[t]he debt
evidenced by the note dated October 2, 2006, in the original principal amount
of $1,700,000.00, executed by [DFW] and payable to the order of [Sharif].”
Both guaranty agreements state, “Guarantor agrees to pay, when due or
declared due, the Guaranteed Indebtedness to Lender.” Both guaranty
agreements state, “This guaranty is an absolute, irrevocable, unconditional, and
continuing guaranty of payment and performance and not of collection.” And
both guaranty agreements state, “[Sharif] need not resort to [DFW] or any other
person or proceed against collateral before pursuing [his] rights against [Shin]
or any other guarantor.”
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Sharif stated in his affidavit attached to his second motion for partial
summary judgment that he has performed his obligations under the promissory
notes and guaranty agreements, that he has not received a single payment
under either promissory note or under either guaranty agreement, and that he
has suffered damages in the amount of $200,000 under the first promissory
note and of $1.7 million under the second promissory note.
We hold that Sharif produced sufficient evidence to establish his right to
summary judgment on his claim that Shin breached the guaranty agreements.
The burden shifted to Shin to come forward with competent controverting
evidence raising a genuine issue of material fact. See Centeq Realty, Inc., 899
S.W.2d at 197.
Shin argues that he raised a genuine issue of material fact on Sharif’s
breach of contract claims because Sharif waived his right to payment under the
guaranty agreements and because Sharif is estopped from collecting under the
guaranty agreements. To support these contentions, Shin directs us to his
affidavit in which he states that he and Sharif orally altered the written
guaranty agreements. The affidavit states in relevant part as follows:
When the business was not generating much income at all during
[the] months of October, November, December 2006, [Sharif] was
aware of the situation that I could not pay the rent or payments
under the promissory notes. In fact, when the due date for the
first monthly payment of about $25,000 under 1.7 million dollar
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came, [Sharif] asked me not to pay monthly rent or promissory
notes for the time being and until business got better. I was
assured that I did not [have to] pay rent payments or the payments
under that 1.7 million dollars note since [Sharif] admittedly owed
me at least $300,000.00 from the date of the closing, and
continued to owe me because of transfer of inventories from DFW
to Empire Tire. . . .
. . . I was assured again by [Sharif] that I did not have to pay
the monthly payment under the note and under my personal
guarantee because the business was not making enough money to
pay monthly payments of the note. . . .
....
. . . It was mutually underst[ood] that [Sharif] would waive
payments due under the two promissory notes because the
business was not generating enough income to pay for the
payments and serious negotiation between [Sharif] and me was
going on. [Emphasis added.]
Regarding the $200,000 promissory note, Shin directs us to deposition
testimony in which Sharif testified that he “would cover” the note because he
owed Shin $200,000 worth of inventory.3
Shin also argues that he raised a genuine issue of material fact on Sharif’s
breach of contract claims because there is evidence that Shin is entitled to a
“set-off against the payments due to Sharif under the guaranty agreement on
the $200,000 Note.” None of Shin’s arguments are compelling.
3
… Appellants’ exhibit containing deposition excerpts does not have a title
page, does not identify the deponent or parties, and does not have a reporter’s
certificate.
9
We construe a guaranty as any other contract.4 Mid-South Telecomm.
Co. v. Best, 184 S.W.3d 386, 390 (Tex. App.—Austin 2006, no pet.). Parties
to a written contract within the statute of frauds may not by oral agreement
alter the terms of the contract and make a new contract resting partly in writing
and partly in parol. Michael v. Busby, 139 Tex. 278, 282–83, 162 S.W.2d
662, 664 (1942); see also David J. Sacks, P.C. v. Haden, 266 S.W.3d 447,
450 (Tex. 2008) (stating that an unambiguous contract will be enforced as
written, and parol evidence will not be received for the purpose of creating an
ambiguity or to give the contract a meaning different from that which its
language imparts); Standard Constructors, Inc. v. Chevron Chem. Co., 101
S.W.3d 619, 624 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (stating
4
… Our primary concern when construing a written contract is to
ascertain the true intentions of the parties as expressed in the instrument.
Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Heil Co. v. Polar Corp.,
191 S.W.3d 805, 810 (Tex. App.—Fort Worth 2006, pet. denied). This is
achieved by examining and considering the entire writing in an effort to
harmonize and give effect to all provisions of the contract so that none will be
rendered meaningless. Coker, 650 S.W.2d at 393. We presume that the
parties to the contract intend every clause to have some effect. Heritage Res.,
Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996); XCO Prod. Co. v.
Jamison, 194 S.W.3d 622, 627 (Tex. App.—Houston [14th Dist.] 2006, pet.
denied). We give terms their plain, ordinary, and generally accepted meaning
unless the contract shows that the parties used them in a technical or different
sense. Heritage Res., 939 S.W.2d at 121.
10
that extrinsic evidence is not admissible to contradict or vary the meaning of
unambiguous language in a written contract).
Shin does not argue that the promissory notes or guaranty agreements
are ambiguous. Thus, under well-established rules of contract construction, we
are required to construe the promissory notes and guaranty agreements as
written. The evidence of the alleged oral alterations of the terms of the
promissory notes and guaranty agreements may not be used to raise a fact
issue on Sharif’s breach of contract claims because the evidence is extrinsic
and contradicts or varies Shin’s and Sharif’s true intentions as expressed in the
plain language of the written instruments. See Michael, 162 S.W.2d at 664;
see also Haden, 266 S.W.3d at 450; Standard Constructors, Inc., 101 S.W.3d
at 624. Shin and Sharif also specifically contemplated and addressed in the
guaranty agreements how such evidence relied upon by Shin is to be addressed.
The guaranty agreements state the following:
11. FINAL AGREEMENT: THIS WRITTEN AGREEMENT
REPRESENTS THE FINAL AGREEMENT BETWEEN THE
PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE
OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO
UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
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Thus, the guaranty agreements themselves expressly provide that they may not
be contradicted by the alleged subsequent oral alterations or agreements relied
upon by Shin to raise a genuine fact issue.
We hold that Shin failed to produce competent, controverting evidence
raising a genuine issue of material fact as to Sharif’s breach of contract claims
and that the trial court did not err by granting Sharif summary judgment on
those claims. See Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co., 73 S.W.3d at
215. We overrule Appellants’ second issue.
V. S HIN’S C OUNTERCLAIMS
In Appellants’ first issue, DFW argues that the trial court erred by granting
Sharif’s no-evidence motion for summary judgment on DFW’s fraud, fraud in
the inducement, breach of contract, conversion, and unjust enrichment
counterclaims.
A. Fraud and Fraud in the Inducement
The elements of common law fraud are that (1) a material representation
was made; (2) the representation was false; (3) when the representation was
made, the speaker knew it was false or made it recklessly without any
knowledge of the truth and as a positive assertion; (4) the representation was
made with the intention that it be acted upon by the other party; (5) the party
acted in reliance upon the representation; and (6) the party suffered injury.
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Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524
(Tex. 1998). Fraudulent inducement “is a particular species of fraud that arises
only in the context of a contract and requires the existence of a contract as part
of its proof. That is, with a fraudulent inducement claim, the elements of fraud
must be established as they relate to an agreement between the parties.”
Hasse v. Glazner, 62 S.W.3d 795, 798–99 (Tex. 2001); see also Walker v.
TRB Bancorp, Inc., No. 05-07-00901-CV, 2008 WL 2738013, at *4 (Tex.
App.—Dallas July 15, 2008, pet. denied) (mem. op.) (stating that a fraudulent
inducement claim has the same elements as a fraud claim, plus the added
element that the fraud related to an agreement between the parties).
DFW argues that Sharif failed to include accounts payable in the
representations regarding King’s Tire’s past profitability, that there were
inventory amount misrepresentations, and that invoices show that Sharif
ordered goods from DFW’s wholesale vendors using DFW’s credit line even
though Sharif said he would purchase goods from DFW. DFW directs us to
numerous documents purportedly evidencing representations made by Sharif
relating to King’s Tire’s sales revenue history, sales summary, inventory
summaries, profit-and-loss statements, and monthly purchases by vendors.
DFW also points to an October 12, 2007 invoice listing King’s Tire as the
purchaser of numerous items from “BZO Custom Wheels” and to portions of
13
Shin’s affidavit, including part in which Shin states that Sharif made certain
representations about the profitability of the business.
Assuming without deciding that DFW’s summary judgment evidence is
admissible, none of it raises a genuine issue of material fact that Sharif made
a material, false representation that was known to be false or that was made
recklessly and without any knowledge of the truth. See Johnson & Higgins of
Tex., Inc., 962 S.W.2d at 524. Shin’s affidavit contains several conclusory,
self-serving statements that do not constitute summary judgment evidence,
including that Sharif “manipulated” his profit numbers because “the profit
margin changed when [Shin] took over,” that Sharif “deceptively hid[]”
accounts payable to show a profit in 2005 and part of 2006, and that Sharif
“fraudulently induced [Shin] to purchase” the business. The remainder of
Shin’s summary judgment evidence consists almost entirely of numerical data,
which does not demonstrate any fraud by Sharif. Because DFW failed to raise
a genuine issue of material fact on one or more challenged fraud and fraudulent
inducement elements, we hold that the trial court did not err by granting
summary judgment in favor of Sharif on Appellants’ fraud and fraudulent
inducement counterclaims. See Tex. R. Civ. P. 166a(i). We overrule this part
of Appellants’ first issue.
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B. Breach of Contract
The elements of a breach of contract are that (1) the plaintiff and
defendant had a valid, enforceable contract; (2) the plaintiff performed or
tendered performance of the contractual obligations; (3) the defendant breached
the contract; and (4) the defendant’s breach caused the plaintiff’s injuries.
West v. Brenntag Sw., Inc., 168 S.W.3d 327, 337 (Tex. App.—Texarkana
2005, pet. denied).
DFW argues that Sharif failed to move for summary judgment on its
counterclaim that Sharif wrongfully terminated the lease. In its “Counterclaims
and Application for Injunctive Relief” pleading, DFW identified its claim that
Sharif wrongfully terminated the lease agreement as a “Breach of contract”
claim. In Sharif’s no-evidence motion for summary judgment, he specifically
challenged each element of DFW’s “Breach of Contract” claim. We hold that
Sharif moved for summary judgment on DFW’s counterclaim that Sharif
wrongfully terminated the lease. See Tex. R. Civ. P. 166a(i) (requiring motion
to specifically state the elements for which there is no evidence).
DFW argues that it raised a genuine issue of material fact on its
counterclaim that Sharif wrongfully terminated the lease. The only evidence
that DFW contends supports its counterclaim that Sharif wrongful terminated
the lease is Sharif’s alleged statements to Shin that Shin could begin to make
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lease payments when the business became busier. The written “Lease with
Purchase Option” agreement, however, reveals that DFW agreed to lease the
premises from October 2, 2006, through September 30, 2016, and that DFW
agreed to pay a base monthly rent of $3,700. Just as Shin’s evidence of the
alleged oral alterations to the terms of the promissory notes and guaranty
agreements could not be used to raise a fact issue on Sharif’s breach of
contract claims, the same type of evidence (subsequent oral alterations or
agreements) may not be used to raise a fact issue on DFW’s wrongful
termination of the lease claim. See Michael, 162 S.W .2d at 664; see also
Haden, 266 S.W.3d at 450; Standard Constructors, Inc., 101 S.W.3d at 624.
DFW further argues that it raised a genuine issue of material fact on the
counterclaim that Sharif breached a “Territorial Exclusivity Agreement.” 5
Excluding Shin’s affidavit, there is nothing in the promissory notes, the
guaranty agreements, the “Lease with Purchase Option” agreement, the
“Settlement Statement,” 6 or any other document in the record relating to
DFW’s transaction with Sharif that references or refers to a territorial
exclusivity agreement. Thus, to the extent such an agreement existed between
5
… Shin stated in his affidavit that King’s Tire had a “territorial exclusive
contract with nationwide wheel suppliers.”
6
… This document contains summaries of DFW’s transaction and King’s
Tire’s transaction as they relate to the sale of Sharif’s business.
16
Sharif and his vendors when Sharif owned and operated King’s Tire, there is no
evidence that the agreement was part of the bargained-for exchange between
DFW and Sharif for the purchase of Sharif’s business. Moreover, there is no
evidence demonstrating that Sharif and DFW had a separate, valid, enforceable
agreement regarding a territorial exclusivity agreement. See West, 168 S.W.3d
at 337 (stating that a valid, enforceable contract must contain an exchange of
obligations of value to each contracting party, reciprocally or mutually induced).
We hold that DFW failed to raise a genuine issue of material fact on one
or more challenged breach of contract elements and that the trial court did not
err by granting summary judgment in favor of Sharif on Appellants’ breach of
contract counterclaims. See Tex. R. Civ. P. 166a(i). We overrule this part of
Appellants’ first issue.
C. Conversion
To establish conversion of personal property, a plaintiff must prove that
(1) the plaintiff owned or had legal possession of the property or entitlement to
possession; (2) the defendant unlawfully and without authorization assumed
and exercised dominion and control over the property to the exclusion of, or
inconsistent with, the plaintiff’s rights as an owner; (3) the plaintiff demanded
17
return of the property; and (4) the defendant refused to return the property.7
Augillard v. Madura, 257 S.W.3d 494, 500 (Tex. App.—Austin 2008, no pet.).
DFW argues that it raised a genuine issue of material fact on its
conversion counterclaim because Shin stated in his affidavit that Mr. Rizik,
Sharif’s brother, “took three checks ($1542, $3745, $2051) in the aggregate
amount[] of $7338 . . . payable to [DFW]” and deposited them in Sharif’s
business account. This evidence does not demonstrate that Sharif unlawfully
exercised dominion and control over the checks; it demonstrates that Rizik, a
DFW employee, exercised dominion and control over the checks.8 If anything,
this might be evidence of a possible embezzlement by Rizik, not a conversion
by Sharif. We hold that DFW failed to raise a genuine issue of material fact on
one or more challenged conversion elements and that the trial court did not err
by granting summary judgment in favor of Sharif on Appellants’ conversion
counterclaim. See Tex. R. Civ. P. 166a(i). We overrule this part of Appellants’
first issue.
7
… Some case law provides that the demand and refusal elements are not
required if other evidence establishes an act of conversion. See, e.g., Burns v.
Rochon, 190 S.W.3d 263, 270 n.2 (Tex. App.—Houston [1st Dist.] 2006, no
pet.).
8
… Shin states in his affidavit that after he purchased Sharif’s business,
he “let Rizik . . . run the business as a store manager as he had been doing all
along.”
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D. Unjust Enrichment
Unjust enrichment is an equitable principle holding that one who receives
benefits unjustly should make restitution for those benefits. Villarreal v. Grant
Geophysical, Inc., 136 S.W.3d 265, 270 (Tex. App.—San Antonio 2004, pet.
denied). Unjust enrichment occurs when the person sought to be charged has
wrongfully secured a benefit or has passively received one which it would be
unconscionable to retain. Id. A party may recover under the theory of unjust
enrichment when one person has obtained a benefit from another by fraud,
duress, or the taking of an undue advantage. Heldenfels Bros. v. City of Corpus
Christi, 832 S.W.2d 39, 41 (Tex. 1992); see also Zapata Corp. v. Zapata Gulf
Marine Corp., 986 S.W.2d 785, 788 (Tex. App.—Houston [1st Dist.] 1999, no
pet.) (“Unjust enrichment is not . . . a proper remedy merely because it ‘might
appear expedient or generally fair that some recompense be afforded for an
unfortunate loss’ to the claimant, or because the benefits to the person sought
to be charged amount to a windfall.”).
Here, DFW argues that Sharif was unjustly enriched because he
“transferr[ed] DFW’s inventory to himself for his Empire Tire business,
puchas[ed] inventory from DFW’s wholesalers for himself, and . . . deposit[ed]
checks belonging to DFW into his own account.” To the extent DFW relies on
evidence that Sharif allegedly breached a “territorial exclusivity agreement,” we
19
have already held above that there is no evidence demonstrating that Sharif and
DFW had a separate, valid, enforceable agreement regarding a territorial
exclusivity agreement. To the extent DFW relies on evidence that checks
payable to DFW were converted, we have already reasoned above that such
evidence does not demonstrate that Sharif exercised dominion and control over
the checks. There is no evidence that Sharif accomplished any of the
complained-of activities by fraud, duress, or the taking of an undue advantage,
nor is there any evidence that Sharif received the alleged benefits unjustly. As
Sharif points out, there is nothing in the record that prohibited Sharif from
competing with DFW. We hold that DFW failed to raise a genuine issue of
material fact on its challenged unjust enrichment counterclaim and that the trial
court did not err by granting summary judgment in favor of Sharif on
Appellants’ unjust enrichment counterclaim. See Tex. R. Civ. P. 166a(i). We
overrule the remainder of Appellants’ first issue.
VI. Sh ARIF’S A PPEAL
Sharif argues in three issues that the trial court erred by overruling his
objections to Appellants’ summary judgment responses and evidence.
Appellants respond that Sharif waived the objections or that the objections are
without merit. Having overruled Appellants’ two issues, however, Sharif’s
issues are moot. We overrule Sharif’s issues.
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VII. C ONCLUSION
Having overruled Appellants’ two issues and Sharif’s issues, we affirm
the trial court’s judgment granting Sharif’s motions for summary judgment.
BILL MEIER
JUSTICE
PANEL: CAYCE, C.J.; MCCOY and MEIER, JJ.
DELIVERED: June 4, 2009
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