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NUMBER 13-01-622-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
AARON SHIELDS, C.B. SHIELDS,
WILLIAM M. SHIELDS AND DELTA
LAKE BOATNICKERS, INC. AND
ROBERT W. MCNABNEY, Appellants,
v.
DELTA LAKE IRRIGATION
DISTRICT, ET AL., Appellees.
On appeal from the 332nd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Yañez, and Castillo
Memorandum Opinion by Justice Yañez
This appeal arises from a dispute regarding the right to lease real property owned by Delta Lake Irrigation District (ADistrict@). Appellees, Delta Lakers Partnership (ALakers@), its individual partners, Gregg Carter, Ricardo Alba, and Reagan Florence, and the District, its individual board members, Otha Holland, Harold Lemmons, Jimmy Carlson, Thomas Richards, and Neal Galloway, moved for summary judgment against appellants on numerous grounds. By three separate orders, the trial court granted appellees= motions on all causes of action asserted by appellants, Delta Lake Boatnickers, Inc. (ABoatnickers@) and its president, Robert McNabney, and Intervenors, Aaron Shields, C.B. Shields, and William Shields. We affirm.
Background
On September 7, 1978, the District entered into a lease agreement (AAgreement@) with the Boatnickers which provided the Boatnickers the right to sublease individual lots owned by the District to third parties for recreational purposes, including the construction of vacation homes and picnic areas, in exchange for agreed-upon rental payments.[1] In early 1996, the Boatnickers failed to timely remit rent payments. As a result, a disagreement arose between the parties concerning their respective rights under the Agreement. On May 1, 1996, the District=s board members voted to terminate the Agreement. Around that same time, they also began negotiations with the Lakers and its partners in an attempt to enter into a new lease agreement. On May 24, 1996, the Boatnickers and McNabney filed suit against the District and its board members, and the Lakers and its partners, seeking declaratory relief to prevent the District and its board members from executing a new lease agreement with the Lakers. On November 6, 1998, as pretrial discovery was ongoing, the Intervenors, comprised of several individual sublessees of the Boatnickers, filed a plea-in-intervention in the proceeding. Thereafter, the District and its board members, and the Lakers and its partners, moved for summary judgment on traditional and no-evidence grounds against the Boatnickers, McNabney, and the Intervenors. On June 19, 2001, without stating its grounds, the trial court entered a final summary judgment in favor of the District and its board members on all claims asserted by the Intervenors. On June 20, 2001, the court, without specifying its grounds, rendered a final summary judgment in favor of the Lakers and its partners against the Boatnickers, McNabney, and Intervenors regarding all asserted causes of action. Approximately eight months later, on February 14, 2002, the trial court granted a final summary judgment in favor of the District and its individual board members on all causes asserted by the Boatnickers and McNabney.
In twenty-seven issues,[2] the Boatnickers, McNabney, and Intervenors contend the
trial court orders granting summary judgment in favor of the District and its board members, and the Lakers and its partners were improper.
Standard of Review
When considering a traditional motion for summary judgment,[3] we review de novo to determine if the successful movant carried the burden of showing that there is no genuine issue of material fact, and judgment should be granted as a matter of law.[4] In determining the issue of whether the movant has carried this burden, all evidence favorable to the non‑movant must be taken as true, and all reasonable inferences, including any doubts, must be resolved in the non‑movant's favor.[5]
When a motion for summary judgment is based on rule of civil procedure 166a(i), the Texas Supreme Court has held that the courts must apply these rules in light of the following additional caveats:[6]
1. the no‑evidence motion can only be brought against "a claim or defense on which an adverse party would have the burden of proof at trial;"[7]
2. the motion must state the elements as to which there is no evidence;[8]
3. the motion must be specific in challenging the evidentiary support for an element of a claim;[9]
4. paragraph (i) does not authorize conclusory motions or general no‑evidence challenges to an opponent's case;[10]
5. the response need only point out evidence that raises a fact issue
on the challenged elements;[11] and
6. the respondent is not required to marshal its proof.[12]
"The trial court may not grant a no‑evidence summary judgment if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact."[13] A party produces less than a scintilla of evidence when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact.[14] A party produces more than a scintilla of evidence if the evidence allows reasonable and fair‑minded people to differ in their conclusions.[15]
No‑evidence points will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact.[16] We view the evidence in the light most favorable to the non‑movant, disregarding all contrary evidence and inferences, unless there is no favorable evidence or contrary evidence renders supporting evidence incompetent or conclusively establishes the opposite.[17]
"When the trial court does not specify the basis for its summary judgment," as is the case here, "the appealing party must show it is error to base it on any ground asserted in the motion."[18] "The appellate court must affirm the summary judgment if any one of the movant's theories has merit."[19]
The Boatnickers= and McNabney=s Appeal of the Trial Court=s February 14, 2002 Order
In their first issue, the Boatnickers and McNabney contend the trial court erred in failing to enforce a rule 11 agreement between them and counsel for the District and its board members, whereby a hearing[20] on the pending motion for summary judgment would not be heard until two weeks after counsel for the Boatnickers and McNabney obtained deposition transcripts from some of the District=s board members.[21]
Under rule 11, Ano agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record.@[22] A valid rule 11 agreement must contain all essential terms of the agreement and must be complete within itself in every material detail.[23]
On April 6, 2001, counsel for the District and its board members wrote a letter to counsel for the Boatnickers, McNabney, and Intervenors:
Dear Counsel:
Please allow this letter to serve as notice that the Delta Lake Irrigation District Defendants have postponed the hearing for their Motion for Summary Judgment against Plaintiff Robert McNabney, which had been set for hearing on April 19, 2001. Ernie and I have agreed to allow him enough time to take the depositions of some of the District=s Board Members prior to a hearing on the Motion for Summary Judgment. The hearing will be reset for approximately two (2) weeks after he obtains possession of these witnesses= deposition transcripts.
Please take note that the Delta Lake Irrigation District Defendants intend to move forward with their Motion for Summary Judgment against the Intervenors, in all respects, on the hearing that is scheduled for April 19, 2001. Likewise, there is no change as to [Laker=s] Motion for Summary Judgment, which will also be heard on April 19th.[24]
It was further agreed to by Ernie and I that any further depositions in this case will be postponed until after the April 19th hearing. It is my understanding from talking with all other counsel that this agreement is mutually acceptable to all. If it is not, please let me know as soon as possible.
This letter was filed with the trial court as a rule 11 agreement, and was expressly discussed at the summary judgment hearing on April 19, 2001. At that time, the court asked counsel for the Boatnickers and its board members when he could take the depositions. Counsel stated, AAt this point in time I don=t think there is any disputes [sic] in scheduling, it is just a matter of schedules.@ The court then stated, AI=d like for you to give me anything and everything that you=re going to give me within two weeks so that I could make a ruling on this thing.@ Counsel did not object or otherwise respond to the court=s directive. The depositions were not taken within the two-week period specified by the trial court. Immediately after the conversation concerning the depositions, the court heard arguments concerning the summary judgment motion filed by the Lakers and its partners, and shortly thereafter, the hearing concluded.
On May 18, 2001, one month after the hearing, counsel for the District and its board members again corresponded with the other attorneys on the case. After expressing frustration about ongoing deposition scheduling and rescheduling, counsel stated:
I refuse to continue to go back and forth on these depositions. As it is we are way past the Court=s deadline for completion of these depositions. As far as I am concerned, the Court has everything it needs to make a ruling on all of the pending Motions for Summary Judgment, and these depositions are only serving to delay that ruling. My clients are aware of the court-imposed deadline and are impatient with these delays and rightfully so. Thus, I will only cooperate with the taking of any other depositions if they are set immediately for a date early on the week of May 28th.
Furthermore, I am no longer willing to agree to provide an additional two (2) weeks from the date that these transcripts are received for a response to my Motions for Summary Judgment to be filed. Given all of these delays, I believe that there has been ample time to allow any response to my Motions for Summary Judgment to be filed within a few days of receipt of the transcripts. I do not think that this is unreasonable. In fact, I believe that I have been more than reasonable and patient under the circumstances.
For the last time, I am asking for dates for the deposition of C.B. Shields. If I do not hear back from all counsel by noon on Monday, May 21, 2001, with dates, I will urge the Court to rule on the Motions for Summary Judgment as soon as possible, based upon the expiration of his court-imposed deadline.[25]
We cannot agree with the Boatnickers and McNabney that the trial court erred in failing to enforce the rule 11 agreement. First, the rule 11 agreement granted trial counsel Aenough time@ to take the depositions of some of the District=s board members. On this record, we believe counsel for McNabney and the Boatnickers was provided with Aenough time@ as promised under the rule 11 agreement.[26] Moreover, while the parties clearly have the right to make agreements regarding discovery, the trial court retains the authority to manage its docket.[27] As such, we conclude the court did not violate the rule 11 agreement.[28] We overrule the Boatnickers= and McNabney=s first issue.
In their second issue, the Boatnickers and McNabney contend the court order granting summary judgment was improper because the District and its board members did not give them proper notice prior to terminating the Agreement. More specifically, the Boatnickers and McNabney argue the Agreement is ambiguous as to whether notice is required in the event of a non-payment of rent. They urge this Court to determine the Agreement is ambiguous, construe it against the District as the drafter of the Agreement, and conclude it required notice prior to termination, which the District failed to provide. In contrast, the District and its board members argue that termination was proper because the Agreement=s terms are not ambiguous and do not require notice when a non-payment of rent occurs.
Conflicting interpretations of a contract, and even unclear or uncertain language, do not necessarily mean a contract is ambiguous.[29] A contract is ambiguous only if there is uncertainty as to which of two meanings is correct.[30] If there is only one reasonable interpretation of the contract, it is unambiguous,[31] and the court will construe the contract as a matter of law.[32] "Just because the parties disagree about the proper construction of a contract does not mean that the contract is ambiguous."[33] "Courts should not strain to find an ambiguity in a contract if, in doing so, they defeat the probable intentions of the parties."[34]
The District and its board members moved for summary judgment on several bases, requesting, inter alia, that the trial court rule as a matter of law that the Agreement did not require notice prior to termination in the event of a non-payment of rent. Attached to their summary judgment pleadings is a copy of the Agreement. The relevant portions are as follows:
2. Term. The term of this lease shall be from September 1, 1978, through August 31, 1998, provided, that if the Lessee should fail promptly to pay the rental timely, the lease may be terminated instanter without notice at District=s option.
. . .
8. Cancellation for Breach. It is expressly understood and agreed that failure or default by said Lessee in the performance of any duty or obligation on its part, under this contract, or breach by it of any condition or land use restriction of this contract, herein set out, shall give the District the absolute right and option to terminate this contract whenever any such default or breach occurs or at any time while such default continues; provided that district shall give Lessee written notice of any default or breach (other than non-payment of rental) which is curable and shall not cancel this lease if the breach or default is cured in a reasonable time, which shall never exceed thirty days after notice given on Lessee=s failure to pay any rental timely. District may, at its option, either declare the lease terminated instanter, or it may accelerate the rentals payable for the balance of the term hereof, whereon the entire sum shall be immediately due, or it may pursue any other remedy available to it at law or in equity.
Section 2 of the Agreement provides the District with the option to terminate the lease without notice if the Boatnickers fail to timely pay rent. Section 8 also gives the District the Aabsolute right and option@ to terminate the Agreement if a default or breach occurs, provided that the District furnish the Boatnickers with written notice and a reasonable time to cure. The Agreement then states that a reasonable time Ashall never exceed thirty days after notice given on Lessee=s failure to pay any rental timely.@ However, excluded from the notice requirement is default or breach for a non-payment of rent. Although Section 8 also contains the phrase, Awhich shall never exceed thirty days after notice given on Lessee=s failure to pay any rental timely,@ we conclude this language was included to explain what constitutes a reasonable time.[35] Because there is only one reasonable interpretation of the relevant sections at issueBthat notice is not required when a non-payment of rent occursBwe conclude the Agreement is unambiguous.[36] As such, the trial court could have determined as a matter of law that the Agreement was properly terminated because it unambiguously states that notice is not required when a non-payment of rent occurs.[37] The Boatnickers= and McNabney=s second issue is therefore overruled.
In their third issue, the Boatnickers and McNabney contend summary judgment was improper because the District and its board members consented to the notice provision of the Agreement by their conduct.[38] According to the Boatnickers and McNabney, even if the Agreement did not require notice prior to termination, the District=s acceptance of late payment constituted a waiver of the right to assert that notice is not required when a non-payment of rent occurs. In opposition, the District and its board members argue that the Boatnickers and McNabney (1) waived their argument by failing to cite to the appellate record, and (2) failed to present any evidence showing that the District accepted a late payment. Although the Boatnickers and McNabney cite to the actual terms of the Agreement, they have failed to cite to evidence in the appellate record in support of their claim that the District accepted a late payment.[39] As such, the Boatnickers= and McNabney=s third issue is overruled.
In their fourth issue, the Boatnickers and McNabney contend summary judgment was improper because the District and its board members violated the Texas Open Meetings Act (Athe Act@).[40] They argue that language included in the District=s public notices regarding future board meetings, in particular, an April 26, 1996 notice regarding an upcoming board meeting at which the Agreement would be considered, required a higher degree of specificity. They claim the Agreement was a matter of public interest and any alteration to it could profoundly affect the residents. In contrast, the District and its board members argue the notices were sufficiently specific under the Texas Open Meetings Act, they did not violate the Act, and summary judgment was therefore appropriate.
The April 26, 1996 notice states, in relevant part, AConsider and act on lease of south bank of Reservoir No. 1 to Delta Lake Boatnickers, Inc., and future of the leased property.@
The purposes of the Texas Open Meetings Act are to enable public access to and increase public knowledge of government decision-making.[41] The Open Meetings Act is not a legislative scheme for service of process; it has no due process implications.[42] Rather, its purpose is to provide "openness at every stage of [a governmental body's] deliberations."[43]
In reviewing notices under the Act, we must ensure that these core purposes are served.[44] However, we need not go further and inquire into whether a notice was tailored to reach those specific individuals whose private interests are most likely to be affected by the proposed government action.[45] The intended beneficiaries of the Act are not individual citizens, such as the particular landowners affected, but members of the interested public.[46] If a "reader" is given notice, the requirement of the Act is satisfied and its purpose served.[47]
The April 26th notice informs readers (1) that the District=s board members were considering the future of the Agreement, and (2) the location of the land affected by the Agreement. After a review of all notices in the appellate record, in particular, the April 26, 1996 notice, we conclude the notices were sufficiently specific to satisfy the public interest, provided readers with adequate information concerning the proposed governmental action, and that the District and its board members therefore did not violate the Act.[48] The Boatnickers= and McNabney=s fourth issue is overruled.
In issue five, McNabney and the Boatnickers generally contend the trial court erred in granting the District and its board members= no-evidence motion for summary judgment. In support of their contention, McNabney and the Boatnickers refer to the following evidence: (1) a copy of the proposed lease agreement between the District and Lakers, (2) a default letter sent by the District to the Boatnickers, and (3) three public notices of District board meetings.
The record shows the District and its board members moved for summary judgment, inter alia, on grounds that (1) no evidence existed to support the Intervenors= tort claims, and (2) governmental and official immunity barred Intervernors= tort claims.
We have already determined that the Agreement was properly terminated because of the Boatnickers= and McNabney=s failure to timely pay rent, and that the District was not required to send notice of default under the terms of the Agreement. We also concluded that the District and its board members complied with the requirements of the Act. Because the Boatnickers and McNabney failed to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact, the trial court could have properly granted summary judgment on no-evidence grounds.[49] Accordingly, we overrule this issue.
In issue six, McNabney and the Boatnickers further argue that with respect to their tort claims, the trial court erred in granting summary judgment More specifically, their arguments are as follows:
Governmental and official immunity did not bar Appellants= claims, as public officials can be sued in their individual capacities for wrongful unofficial acts done outside the scope of their duty or office. Governmental entities can be held liable for the intentional torts of employees.
* * *
In the case at bar, a fact issue exists as to whether the Appellees acted maliciously and wilfully in violating the Texas Open Meetings Act and in taking steps to conceal the notice of default from Appellees by sending the notice to the wrong address.
However, we have already determined that the trial court properly granted no-evidence summary judgment in favor of the District and its board members because McNabney and the Boatnickers failed to bring forth more than a scintilla of probative evidence to support their tort claims, and because the District and its board members complied with the Act. Consequently, it is unnecessary to address the Boatnickers= and McNabney=s arguments regarding the District=s affirmative defenses and allegations concerning violations of the Act.[50] Accordingly, their sixth issue is overruled.
In a seventh issue, the Boatnickers and McNabney contend the court erred in
granting summary judgment because discovery admissions were ordered withdrawn by the trial court. However, the Boatnickers and McNabney failed to adequately brief this argument and support it with citation to appropriate legal authority.[51] Therefore, we will not address their seventh issue.
In their eighth issue, the Boatnickers and McNabney contend the court erred in awarding the District attorney=s fees of $55, 527.71 because the District had not requested the award in its motion for summary judgment. In contrast, the District argues the award of attorney=s fees was proper because (1) the District requested the award in its motion for summary judgment, and (2) the amount awarded was supported by an attorney=s fee affidavit.
A summary judgment may be granted for attorney's fees where an uncontradicted affidavit shows that the affiant is qualified to express an opinion as to the reasonableness of the fee and sets forth the basis for such an opinion.[52]
Here, the record shows that counsel for the District and its board members requested attorney=s fees of $55,527.71 in its summary-judgment pleadings and supported its request with an affidavit from Raymond Thomas, counsel of record for the District. In its final judgment, the trial court ordered that the District recover attorney=s fees as follows:
IT IS FURTHER ORDERED that, based upon the affidavit for attorneys= fees filed by the Water District Defendants that proves reasonable and necessary attorneys= fees, [Boatnickers] shall pay the [District] $55,527.71 for attorneys= fees, for which each Plaintiff shall be jointly and severally liable.
The record reflects that the Boatnickers and McNabney failed to controvert the request for attorney=s fees with an affidavit of their own opposing the District=s request for attorney=s fees.
Because the record shows the District requested attorney=s fees in its summary judgment pleadings, and because the award is supported by an uncontroverted affidavit, we conclude the court properly granted summary judgment regarding the District=s request for attorney=s fees.[53] We overrule the Boatnickers= and McNabney=s eighth issue.[54]
Intervenors= Appeal of the Trial Court=s June 19, 2001 Order
In the Intervenors= first issue, they contend generally that the trial court erred in
granting the District and its board members= motion for summary judgment. However, the Intervenors= brief concerning this issue consists of nothing more than a recitation of the summary-judgment standard of review. Because Intervenors fail to present a clear and concise argument with appropriate citation to the record in support of this contention, we conclude they have presented nothing for us to review.[55] We overrule their first issue.
In their second through fourth issues, the Intervenors contend the court erred in granting the District and its board members= motion for summary judgment regarding the Intervenors= claim for breach of contract and request for declaratory and injunctive relief because (1) the District and its board waived their right on appeal to assert that section 13 of the Agreement was unenforceable; (2) the summary judgment motion did not conclusively establish compliance with section 13; (3) neither the District or its board members were authorized under section 13 to enter into negotiations with the Lakers; (4) the District and its members failed to conclusively establish that negotiations concerning the prospect of a future lease were approved by a majority of sublessees, as required by section 13; and (5) fact-issues exist regarding whether the District and/or its board members violated the Open Meetings Act. In contrast, the District and its board members argue that the Intervenors= claims are unmeritorious because the Intervenors possess no enforceable contractual rights under the Agreement.
The elements of a breach of contract claim are (1) the existence of a valid contract, (2) performance or tendered performance by the plaintiff, (3) breach of the contract by the defendant, and (4) damages to the plaintiff resulting from that breach.[56] A party breaches a contract when the party fails or refuses to perform an act that it expressly promised to perform.[57]
If there is no ambiguity, the construction of the written instrument is a question of law for the Court.[58] It is the general rule of the law of contracts that where an unambiguous writing has been entered into between the parties, the Courts will give effect to the intention of the parties as expressed or as is apparent in the writing.[59] In the usual case, the instrument alone will be deemed to express the intentions of the parties for it is the objective, not subjective, intent that controls.[60] The primary concern of a court interpreting a contract is to ascertain and to give effect to the intentions of the parties as expressed in the instrument.[61]
However, an agreement to make a future contract is enforceable only if it is specific as to all essential terms, and no terms of the proposed agreement may be left to future negotiations.[62] An agreement to enter into negotiations in the future cannot be enforced because the court has no means to determine what sort of contract the negotiations would have produced.[63] Courts have long held that an agreement to enter into negotiations in the future is unenforceable.[64]
Here, the District and its board members attached a copy of the Agreement to their summary-judgment pleadings. Section 13 states, in relevant part, ADistrict agrees that on default of performance hereof by Boatnickers . . . District will negotiate in good faith with any duly appointed representative of a majority of the last sublessees of Boatnickers . . . in an effort to make a new lease with them.@ After a review of evidence, we conclude the terms of section 13 constitute no more than an agreement to enter into future negotiations, and, as such, it is unenforceable.[65] In light of our conclusion, we overrule the Intervenors= arguments regarding section 13. Further, because we have already concluded that the Open Meetings Act was not violated, it is unnecessary to address the Intervenors= allegation that the Act was violated.[66]
In issue five, Intervenors contend summary judgment on their claim for declaratory relief was improper prior to a determination of whether the Agreement was properly terminated. According to the Intervenors, their declaratory request that the court deem the Agreement void or voidable should not have been decided until the issue of whether the Agreement was properly terminated was adjudicated. However, in the Boatnickers= and McNabney=s second issue, we concluded that the trial court could have found that termination of the Agreement was proper. In light of our conclusion, the Intervenors= contention need not be addressed. Accordingly, we overrule issue five.[67]
In issue six, the Intervenors contend the trial court abused its discretion in awarding the counsel for the District and its board members attorney=s fees because there was no basis in law or fact for such an award. In contrast, counsel for the District and its board members argues that attorney=s fees were properly awarded under the declaratory judgments act.
Section 37.009 of the Texas Civil Practice and Remedies Code explicitly states that the trial court may award reasonable and necessary attorney=s fees as are equitable and just for any proceeding brought under the Texas Uniform Declaratory Judgments Act.[68] Under this standard, an award of attorney=s fees does not depend on a finding that one of the parties prevailed.[69]
The award of attorney=s fees in a declaratory judgment action is entrusted to the discretion of the trial court.[70] However, the attorney=s fees must be reasonable, necessary, equitable, and just.[71] Moreover, an award of attorney=s fees must be supported by the evidence.[72] Factors the trial court should consider when determining the reasonableness of attorney=s fees include (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.[73]
The Intervenors contend the District=s counsel is not entitled to attorney=s fees because he failed to request them in its summary judgment pleadings. However, the record shows that counsel for the District requested attorney=s fees in its summary judgment pleadings.[74] Under these circumstances, we conclude it was within the court=s discretion to award the attorney=s fees.[75]
The Intervenors further contend that the evidence of attorney=s fees was, as a matter of law, insufficient to support the award. According to the Intervenors, the affidavit of Raymond Thomas was insufficient insofar as it was conclusory and failed to incorporate time sheets or other supporting data to support the attorney=s fee request.
Based on our review, Thomas=s affidavit was legally sufficient to support the trial court's award of attorney's fees. Thomas testified that he is a duly licensed attorney, he is familiar with the usual and customary attorney's fees in Hidalgo County, he has personal knowledge of the services rendered to the District on this matter, and those services were reasonable and necessary. The Intervenors did not object to this evidence at trial, nor did they produce any controverting evidence regarding attorney=s fees. Accordingly, we conclude Thomas=s affidavit was legally sufficient to support the trial court's judgment for attorney's fees.[76]
Finally, the Intervenors argue that Thomas=s affidavit is insufficient insofar as it fails to segregate the time and work spent on claims for which attorney=s fees are not permitted. Generally, the failure to segregate attorney's fees in a case containing multiple causes of action, when only some of which entitle the recovery of fees, can result in the recovery of no fees.[77] However, in the instant case, the Intervenors failed to object to the failure to segregate. Accordingly, any error in failing to segregate the fees was waived.[78] Based on the foregoing, issue six is overruled.
In issue seven, the Intervenors contend the trial court erred in granting the District=s and its board members= no-evidence motion for summary judgment as to their tort claims because there is evidence to support each element thereof.
The Intervenors first argue that summary judgment was improperly granted as to their conspiracy claim. The record shows the District and its board members moved for summary judgment on all of the Intervernors= tort claims on two grounds: (1) that no evidence existed to support any of the elements of the Intervenors= conspiracy claim, and (2) governmental and official immunity.
We previously determined that the trial court properly granted summary judgment on grounds that no probative evidence existed to support the tort claims asserted against the District and its board members. Consequently, it is unnecessary to address the Intervenors= arguments concerning their conspiracy claim.[79]
The Intervenors also contend the trial court improperly granted the no-evidence summary judgment because they were not allowed an adequate time for discovery. When a party contends that it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance.[80] In the instant case, the Intervenors did neither.[81] We overrule issue seven.
In issue eight, the Intervenors contend the trial court erred in granting summary judgment on their conspiracy claims against the District=s board members on grounds of official immunity. According to the Intervenors, the evidence did not conclusively demonstrate that the members exercised a discretionary function or acted in good faith in attempting to enter a new lease agreement on the District=s behalf.
However, we have already concluded that the conduct and decisions of the individual board members with respect to the termination of the Agreement were appropriate.[82] As such, we overrule issue eight.
Intervenors= Appeal of the Trial Court=s June 20, 2001 Order
In their first issue challenging the summary judgment granted in favor of the Lakers and its partners, the Intervenors contend generally that the trial court erred in granting the no-evidence motion for summary judgment. However, the Intervenors= brief regarding this issue consists of nothing more than a recitation of the summary-judgment standard of review. Because the Intervenors fail to present a clear and concise argument with appropriate citation to the record in support of this contention, we conclude they have presented nothing for us to review.[83] We overrule their first issue.
In issues two, three, and four, the Intervenors contend the court erred in granting summary judgment because fact-issues exist regarding compliance with section 13 of the Agreement and concerning whether the Texas Open Meetings Act was violated. We have already concluded that section 13, as an agreement to enter into future negotiations, was unenforceable as a matter of law, and that the Open Meetings Act was not violated by the District or its board members. We therefore do not readdress these contentions,[84] and overrule the Intervenors= second, third and fourth issues.
In issue five, the Intervenors contend summary judgment on their claim for declaratory relief was improper prior to a determination regarding whether the Agreement was properly terminated. However, we have previously addressed this issue.[85]
In issue six, the Intervenors contend the trial court abused its discretion in awarding counsel for the Lakers and its partners attorney=s fees because there was no basis in law or fact for such an award. We have already addressed the legal basis for the award of attorney=s fees in connection with the Intervenors= appeal of the June 19, 2001 order granting summary judgment in the District=s favor.[86] Attorney=s fees were properly awarded under the declaratory judgments act.
The Intervenors= complaints regarding the sufficiency of the evidence to support the award mirror those raised previously regarding the attorney=s fees affidavit provided by Raymond Thomas.[87] We have reviewed the affidavit of Luis M. Cardenas, counsel for the Lakers and its partners, and conclude Cardenas=s affidavit was legally sufficient to support the trial court's award of attorney's fees. Cardenas testified that he is a duly licensed attorney, he is familiar with the usual and customary attorney's fees in Hidalgo County, he has personal knowledge of the services rendered in this matter, and those services were reasonable and necessary. The Intervenors did not object to this evidence at trial and did not produce any controverting evidence regarding attorney=s fees. Accordingly, we conclude that the affidavit was legally sufficient to support the trial court's award of attorney's fees.[88]
Finally, the Intervenors argue that Cardenas=s affidavit is insufficient insofar as it fails to segregate the time and work spent on claims for which attorney=s fees are not permitted. However, the Intervenors failed to object to the failure to segregate. Any error in failing to segregate the fees was waived.[89] We overrule issue six.
In issues seven and eight, the Intervenors contend the trial court erred in granting the motion for summary judgment on their claim for tortious interference with a prospective contract or an existing contract, respectively, because there is evidence to support each element of these claims.
The record shows the Lakers and its partners moved for no-evidence summary judgment on, inter alia, the basis that no evidence existed to support any element of the Intervenors= claim for tortious interference with a prospective or an existing contract.
The elements for a tortious interference with prospective contract cause of action are: (1) a reasonable probability that the parties would have entered into a contractual relationship; (2) an intentional and malicious act by the defendant that prevented the relationship from occurring; (3) with the purpose of harming the plaintiff; (4) the defendant lacked privilege or justification to do the act; and (5) actual harm or damage resulted from the defendant's interference.[90] To maintain this cause of action, an appellant must have direct evidence of appellees' intent to interfere.[91] Intent is established if there is direct evidence that appellees desired to interfere or if they knew that the interference was certain or substantially certain to occur as a result of their conduct.[92] If appellees had no desire to interfere with appellant's action but knew that it would be a mere incidental result of conduct for another purpose, any interference may not be improper.[93]
In Texas, a party bringing suit for tortious interference with an existing contract must prove four elements: (1) a contract subject to interference exists; (2) the act of interference was wilful and intentional; (3) the intentional act proximately caused the plaintiff's damage; and (4) actual damage or loss occurred.[94]
Tortious interference with a prospective contract and tortious interference with an existing contract each require a showing of intent. The Intervenors failed to bring forth any evidence to support that the Lakers or its partners acted with the requisite intent and malice for the specific purpose of harming the Intervenors. Although Intervenors attached an affidavit of Aaron Shields to their summary judgment response, it contains hearsay testimony that was objected to by counsel for the Lakers and its partners during the hearing on the summary judgment motion. Because Intervenors failed to provide more than a scintilla of probative evidence with respect to intent, the trial court could have properly granted summary judgment on the Intervenors= tortious interference claims.[95] Accordingly, we overrule issues seven and eight.
In issue nine, the Intervenors contend the trial court erred in granting the motion for summary judgment on their conspiracy claim because evidence exists to support each of the elements, which include:
(1) two or more persons;
(2) an object to be accomplished;
(3) a meeting of the minds on the object or course of action;
(4) one or more unlawful, overt acts; and
(5) damages as a proximate result.[96]
The Lakers and its partners moved for summary judgment regarding the conspiracy claim on the basis that no evidence existed to support the following elements (1) one or more unlawful, overt acts; (2) an object to be accomplished; and (3) a meeting of the minds. In their response, the Intervenors argued that evidence existed to support its conspiracy claim. In support of their claim, the Intervenors attached a letter sent to the District by counsel for the Lakers and its partners requesting that the District=s board consider at its next meeting the prospect of entering into a lease with the Lakers should the opportunity become available.
However, because the Intervenors failed to bring forth more than a scintilla of probative evidence to support that one or more unlawful, overt acts had occurred, summary judgment regarding the conspiracy claim was proper.[97] We overrule issue nine.
In issue ten, the Intervenors contend the trial court abused its discretion in granting the Lakers= and its partners no-evidence summary judgment motion without allowing an adequate time for discovery. However, the Intervenors failed to file either an affidavit explaining the need for further discovery or a verified motion for continuance.[98] Accordingly, we overrule their tenth issue.
Conclusion
Because we have overruled all issues raised on appeal by all parties, we affirm the trial court=s final summary judgment orders.
LINDA REYNA YAÑEZ,
Justice
Memorandum opinion delivered and filed
this the 11th day of May, 2006.
[1] At the time the Agreement was executed, Dr. C.H. Spence owned and operated the Boatnickers. On July 21, 1995, however, Mr. McNabney purchased ownership and operation of the Boatnickers and became its president. After the purchase, he assumed all liabilities, assets, and profits attributable to the entity.
[2] On appeal, the Boatnickers and McNabney jointly filed one brief. By separate brief, the Intervenors also appeal the trial court=s judgment.
[3] See Tex. R. Civ. P. 166a(c).
[4] See M.D. Anderson v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000); Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).
[5] See Willrich, 28 S.W.3d at 23‑24.
[6] See Tex. R. Civ. P. 166a(i); Oasis Oil Corp. v. Koch Ref. Co., 60 S.W.3d 248, 252 (Tex. App.BCorpus Christi 2001, pet. denied).
[7] Oasis Oil Corp., 60 S.W.3d at 252.
[8] See id.
[9] See id.
[10] See id.
[11] See id.
[12] See id.
[13] See Zapata v. The Children's Clinic, 997 S.W.2d 745, 747 (Tex. App.BCorpus Christi 1999, no pet.).
[14] See King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
[15] See id.
[16] See id.
[17] See id.
[18] See Star‑Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
[19] See id.
[20] The pending summary judgment motions filed by the District and its board members, and the Lakers and its partners, were to be addressed at the pending hearing.
[21] See Tex. R. Civ. P. 11; Padilla v. LaFrance, 907 S.W.2d 454, 459 (Tex. 1995).
[22] See Padilla, 907 S.W.2d at 459.
[23] See id. at 460; Neasbitt v. Warren, 105 S.W.3d 113, 116 (Tex. App.BFort Worth 2003, no pet.).
[24] (emphasis in original).
[25] (emphasis in original).
[26] See Tex. R. Civ. P. 11; Padilla, 907 S.W.2d at 459; Neasbitt, 105 S.W.3d at 116.
[27] See Tex. R. Civ. P. 191.1 (trial court may modify discovery procedures and limitations if there is good cause and the modification is not prohibited by another rule).
[28] See Tex. R. Civ. P. 191.1; Padilla, 907 S.W.2d at 459; Neasbitt, 105 S.W.3d at 116.
[29] See Kurtz v. Jackson, 859 S.W.2d 609, 611 (Tex. App.BHouston [1st Dist.] 1993, no writ).
[30] See id.
[31] See id.
[32] See Wright v. Eckhardt, 32 S.W.3d 891, 894 (Tex. App.BCorpus Christi 2000, no pet.) (citing Nat'l Union Fire Ins. v. CBI Indus., Inc., 907 S.W.2d 517, 520 (Tex. 1995)).
[33] See Appleton v. Appleton, 76 S.W.3d 78, 84 (Tex. App.BHouston [14th Dist.] 2002, no pet.) (citing Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 134 (Tex. 1994)).
[34] Id. (citing Licata v. Licata, 11 S.W.3d 269, 277 (Tex. App.BHouston [14th Dist.] 1999, pet. denied)).
[35] See Appleton, 76 S.W.3d at 84; Kurtz, 859 S.W.2d at 611.
[36] See Appleton, 76 S.W.3d at 84; Kurtz, 859 S.W.2d at 611; Forbau, 876 S.W.2d at 134.
[37] See Forbau, 876 S.W.2d at 134; Wright, 32 S.W.3d at 894 (citing Nat'l Union Fire Ins., 907 S.W.2d at 520); Kurtz, 859 S.W.2d at 611.
[38] In a subissue, the Boatnickers and McNabney also contend the Agreement=s terms regarding notice are ambiguous. However, we have already overruled this issue. Therefore, we will not readdress this contention. See Tex. R. App. P. 47.1.
[39] See Tex. R. App. P. 38.1(h).
[40] See Tex. Gov=t Code ' 551.041 (Vernon 2005).
[41] See San Antonio v. Fourth Court of Appeals, 820 S.W.2d 762, 765 (Tex. 1991).
[42] See id.
[43] See Acker v. Texas Water Comm'n, 790 S.W.2d 299, 300 (Tex. 1990).
[44] See Fourth Court of Appeals, 820 S.W.2d at 765.
[45] See id.
[46] See id.
[47] See id.
[48] See id.
[49] See City of Keller, 168 S.W.3d at 810-11; King Ranch, 118 S.W.3d at 751.
[50] See Tex. R. App. P. 47.1.
[51] See Tex. R. App. P. 38.1(h).
[52] See Himes v. Am. Fence Co., 379 S.W.2d 290, 291 (Tex. 1964); Gen. Elec. Supply Co. v. Gulf Electroquip, Inc., 857 S.W.2d 591, 601 (Tex. App.BHouston [1st Dist.] 1993, writ denied); Sunbelt Constr. Corp., Inc. v. S & D Mech. Contractors, Inc., 668 S.W.2d 415, 418 (Tex. App.BCorpus Christi 1983, writ ref'd n.r.e.).
[53] See Himes, 379 S.W.2d at 291; Gen. Elec. Supply Co., 857 S.W.2d at 601; Sunbelt Constr. Corp., Inc., 668 S.W.2d at 418.
[54] Although the Boatnickers and McNabney raise a ninth issue on appeal, because it presents no new legal grounds for review, we will not address it. See Tex. R. App. P. 47.1.
[55] See Tex. R. App. P. 38.1(h).
[56] See Adams v. H & H Meat Prods., Inc., 41 S.W.3d 762, 771 (Tex. App.BCorpus Christi 2001, no pet.).
[57] See Methodist Hosp. v. Corp. Comm., Inc., 806 S.W.2d 879, 882 (Tex. App.BDallas 1991, writ denied).
[58] See City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968).
[59] Id.
[60] Id.
[61] See R & P Enter. v. LaGuarta, Gavrel & Kirk, 596 S.W.2d 517, 518 (Tex. 1980).
[62] See Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000).
[63] See Cent. Tex. Micrographics v. Leal, 908 S.W.2d 292, 296‑97 (Tex. App.BSan Antonio 1995, no writ).
[64] See, e.g., Radford v. McNeny, 104 S.W.2d 472, 474 (1937); Marantha Temple v. Enter. Prod., 893 S.W.2d 92, 104 (Tex. App.BHouston [1st Dist.] 1994, writ denied); McCurry v. Aetna Cas. & Sur. Co., 742 S.W.2d 863, 866 (Tex. App.BCorpus Christi 1987, writ denied); Weitzman v. Steinberg, 638 S.W.2d 171, 175 (Tex. App.BDallas 1982, no writ); Estate of Eberling v. Fair, 546 S.W.2d 329, 334 (Tex. Civ. App.BDallas 1976, writ ref'd n.r.e.).
[65] See Marantha Temple, 893 S.W.2d at 104.
[66] See Tex. R. App. P. 47.1.
[67] See Tex. R. App. P. 47.1.
[68] See Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1997); Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998).
[69] See Barshop v. Medina Cty. Underground Water Conserv. Dist., 925 S.W.2d 618, 637 (Tex. 1996).
[70] See Bocquet, 972 S.W.2d at 20.
[71] See Tex. Civ. Prac. & Rem. Code Ann. ' 37.009; Columbia Rio Grande Reg'l Hosp. v. Stover, 17 S.W.3d 387, 397 (Tex. App.BCorpus Christi 2000, no pet.).
[72] See Bocquet, 972 S.W.2d at 20.
[73] See Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999).
[74] See, e.g., Swate v. Medina Cmty. Hosp., 966 S.W.2d 693, 701 (Tex. App.BSan Antonio 1998, pet. denied) (request for attorney=s fees must be supported by the pleadings).
[75] See Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 151 (Tex. App.BAmarillo 2001, pet. denied); Templeton v. Dreiss, 961 S.W.2d 645, 671 (Tex. App.BSan Antonio 1998, pet. denied) (noting that under section 37.009 the party awarded attorney=s fees does not have to be the one who filed the declaratory judgment claim); First City Nat'l Bank v. Concord Oil Co., 808 S.W.2d 133, 138‑39 (Tex. App.BEl Paso 1991, no writ) (holding that when either the plaintiff or plaintiff and defendant seek declaratory relief, attorney's fees may be awarded to either party); Ritchie v. City of Fort Worth, 730 S.W.2d 448, 451 (Tex. App.BFort Worth, writ ref'd n.r.e.) (holding the same); First Nat'l Bank v. John E. Mitchell Co., 727 S.W.2d 360, 363 (Tex. App.BAmarillo 1987, writ ref'd n.r.e.) (stating that when the plaintiff seeks declaratory relief, the trial court may award attorney's fees to any party).
[76] See Tex. Commerce Bank v. New, 3 S.W.3d 515, 517-18 (Tex. 1999); see, e.g., Cap Rock Elec. Coop. v. Texas Utils. Elec. Co., 874 S.W.2d 92, 101‑02 (Tex. App.BEl Paso 1994, no writ) (uncontested affidavit establishing prima facie case for attorney's fees legally sufficient to support fee award); Murrco Agency, Inc. v. Ryan, 800 S.W.2d 600, 606 (Tex. App.BDallas 1990, no writ).
[77] See Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1996).
[78] See id.; Estate of Mongague v. Nat=l Loan Investors, Inc., 70 S.W.3d 242, 250 (Tex. App.BSan Antonio 2001, no pet.); Hoxie Implement Co., 65 S.W.3d at 151.
[79] See Tex. R. App. P. 47.1.
[80] See Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996).
[81] See id.
[82] See Tex. R. App. P. 47.1.
[83] See Tex. R. App. P. 38.1(h).
[84] See Tex. R. App. P. 47.1.
[85] See Tex. R. App. P. 47.1.
[86] See id.
[87] See id.
[88] See Tex. Com. Bank, 3 S.W.3d at 517-18.
[89] See id.; Tex. R. App. P. 33.1(a); Estate of Mongague, 70 S.W.3d at 250; Hoxie Implement Co., 65 S.W.3d at 151.
[90] See Larson v. Family Violence & Sexual Assault Prevention Ctr., 64 S.W.3d 506, 517 (Tex. App.BCorpus Christi 2001, pet. denied); Garner v. Corpus Christi Nat'l Bank, 944 S.W.2d 469, 477 (Tex. App.BCorpus Christi 1997, writ denied).
[91] See Browning‑Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993); Larson, 64 S.W.3d at 517.
[92] See Bradford v. Vento, 48 S.W.3d 749, 757 (Tex. 2001).
[93] Id.
[94] See Juliette Fowler Homes v. Welch Assocs., 793 S.W.2d 660, 665 (Tex. 1990); Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 140 (Tex. App.BWaco 2005, pet. denied).
[95] See Larson, 64 S.W.3d at 517; Garner, 944 S.W.2d at 477.
[96] See Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005).
[97] See id.
[98] See Tenneco, Inc., 925 S.W.2d at 647.