Affirmed and Memorandum Opinion filed August 26, 2008.
In The
Fourteenth Court of Appeals
____________
NO. 14-07-00237-CV
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GP II ENERGY, INC., GEORGE MITCHELL, II, AND BRIAN SIRGO, Appellants
V.
CHAMBERLAIN, HRDLICKA, WHITE, WILLIAMS & MARTIN AND BRIAN L. GENNITY, Appellees
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Cause No. 04-59594
M E M O R A N D U M O P I N I O N
Three parties entered into an agreement to resolve claims and interests regarding oil and gas leases in New Mexico. One party, an officer of that party, and an officer of another party sued the lawyer and law firm that had represented the third party to the agreement, alleging that the lawyer and law firm served as escrow agents and asserting claims for breach of contract, breach of fiduciary duty, and fraud. The trial court granted summary judgment and dismissed the claims. We affirm.
I. Factual and Procedural Background
In 1997, Square Lake Partners, L.L.C. (ASquare Lake@) acquired a leasehold interest in various oil and gas leases in Eddy County, New Mexico (hereinafter the AProperties@).[1] Appellants/plaintiffs George P. Mitchell II and Brian M. Sirgo both owned membership interests in Square Lake. Mitchell and Sirgo, in their individual capacities, also owned interests in the Properties. The Properties were located on land owned by either the United States of America or the State of New Mexico. To finance Square Lake=s acquisition of the leasehold interest in the Properties and its development of the Properties, Square Lake entered into a financing agreement with Domain Energy Finance Corporation n/k/a Range Energy Finance Corporation (hereinafter ARange@). Range agreed to provide this financing in consideration for Square Lake conveying a production payment (essentially an overriding royalty interest) carved out of Square Lake=s working interest.
Square Lake entered into a joint operating agreement with appellant/plaintiff GP Energy II, Inc. (hereinafter AGP II@) for the operation of the New Mexico oil and gas leases. At the time of this agreement, Mitchell was the sole shareholder, president, and secretary-treasurer of GP II. GP II, as operator, entered into a contract with Gateway Gathering and Marketing Company to sell crude oil on Square Lake=s behalf and on behalf of all interest holders.
Between 1997 and early 2002, Range spent in excess of five million dollars to finance the acquisition and development of the Properties. Nonetheless, due in part to low natural gas prices and higher-than-expected operating costs, the Properties were not profitably developed. Square Lake allegedly failed to pay GP II in excess of $600,000 as of the end of 1999. GP II sought to perfect a statutory lien against the Properties. In November 2000, GP II filed a lawsuit against Square Lake and Range in New Mexico (hereinafter the ANew Mexico Lawsuit@). GP II sought to enforce its operator=s lien under the joint operating agreement as well as to foreclose on its statutory lien on the Properties.
Range sought to locate a purchaser for Square Lake=s leasehold interest in the Properties. In July 2002, Square Lake, GP II, and Range signed an agreement effective as of May 31, 2002 (hereinafter the AJuly Agreement@). Under the July Agreement, the parties authorized Range to sell the Properties, and they agreed that Range had the sole responsibility for the final decisions on the purchase, negotiations on the purchase, the effective date of the sale, and the closing. The July Agreement contains several provisions regarding the obligations of the parties to deliver certain documents to an escrow agent designated by Range, although no escrow agent is named or designated in that agreement. At all relevant times, Range was represented by appellee/defendant Brian L. Gennity, a lawyer at appellee/defendant Chamberlain, Hrdlicka, White, Williams & Martin (hereinafter AChamberlain Hrdlicka@). Neither Gennity nor Chamberlain Hrdlicka signed the July Agreement.[2]
On September 17, 2002, Gennity sent counsel for GP II and Mitchell a written communication by facsimile, in which Gennity stated, ASee if you can get your original docs signed & overnighted to me by Thurs/Fri if possible. [sic] to hold as Escrow Agent pursuant to the [July Agreement].@[3]
Under the July Agreement, the parties agreed to execute mutual releases releasing one another and their respective owners and officers from all claims that any party might have had against the others through the closing date. To carry out this agreement, the parties agreed to the form of a ARelease and Confidentiality Agreement@ (hereinafter the ARelease@). In September 2002, Gennity received a counterpart original of the Release that had been signed by GP II and Square Lake.
On October 1, 2002, Range entered into a purchase and sale agreement with CBS Partners, Ltd. (ACBS@) under which that company would purchase the interests of Range, Square Lake, and GP II in the Properties. On October 19, 2002, Gennity received from Range an original counterpart of the Release fully and unconditionally executed by Range. The closing for the purchase by CBS occurred on October 24, 2002. No lawyer from Chamberlain Hrdlicka attended this closing. On the afternoon of October 24, 2002, counsel for CBS sent Gennity a facsimile stating that all closing documents had been executed and exchanged. At the closing, GP II, Mitchell, and Sirgo (hereinafter collectively the ASquare Lake Parties@) received a copy of the Release reflecting that the Release had been fully and unconditionally executed by all parties thereto.[4] Though the Square Lake Parties received a copy of the page containing the signature of Range=s representative, they did not receive the original of this page. The original of this signature page remained in Gennity=s possession. Upon completion of the closing on October 24, 2002, among other things, the following had occurred:
! CBS had purchased all of the leasehold interest in the Properties.
! GP II had executed a release of its operator=s lien, its statutory lien on the Properties, and any rights to enforce those liens.
! GP II had assigned to CBS all of GP II=s right, title, and interest in the Properties.
! GP II had signed an agreed motion to dismiss with prejudice its claims in the New Mexico Lawsuit.
! Square Lake had assigned to CBS all of Square Lake=s right, title, and interest in the Properties.
! Range had assigned to CBS all of Range=s right, title, and interest in the production-payment interest in the Properties.
Around the time of the closing, CBS notified Range that CBS had discovered potential claims against GP II regarding the agreement GP II had entered into with Gateway. On the day of the closing, Range and CBS agreed to investigate and pursue these potential claims.[5] Gennity testified that Chamberlain Hrdlicka and he did not find out about this agreement until October 25, 2002.
Range and GP II agreed that Range was entitled to 83% of the sales proceeds. At the closing, GP II and Range further agreed that the remaining 17% of the sales proceeds would be held by Chamberlain Hrdlicka under an express escrow agreement.[6] Range=s representative made it clear to Michael Short, counsel for GP II and Mitchell, that in post-closing adjustments, Range would be expecting to receive an appropriate accounting from GP II of all revenues and expenses attributable to production from the Properties for the applicable periods of time covered by all the existing letter agreements between Range and GP II. On October 25, 2002, Range notified GP II that it was investigating a potential post-closing adjustment under which it would be entitled to some of the escrowed funds. In the week following the closing, Range and GP II disagreed as to whether Range should receive part of the escrowed funds.
Five days after the closing, on October 29, 2002, a representative from Range executed a new signature page for the Release purporting to change the terms of the Release by making the release subject to various contractual rights of Range, including Range=s alleged right to recoup costs and receive all revenue attributable to Square Lake=s interest and Range=s production payment. Gennity maintained possession of the original signature page (without any added language) and never destroyed it or gave it to any person. On October 31, 2002, GP II and Range agreed that most of the escrowed funds should be wired to GP II; however, rights to some of these funds remained in dispute.
In June 2003, CBS and Range filed suit against GP II, Mitchell, and Gateway in federal court (hereinafter the AFederal Lawsuit@). In September 2004, GP II and Mitchell settled the Federal Lawsuit. The following month, the Square Lake Parties sued Chamberlain Hrdlicka and Gennity (hereinafter the AChamberlain Parties@) in the trial court below, alleging, among other things the following:
! The July Agreement sets forth the duties and responsibilities of the AEscrow Agent.@
! By his September 17, 2002 facsimile, Gennity agreed that the Chamberlain Parties would serve as AEscrow Agent@ for the closing of the CBS transaction.
! Before the October 24, 2002 closing, Range and CBS discussed pursuing claims against GP II after the closing, and CBS prepared a proposed agreement relating to these claims on October 23, 2002. Range entered into this agreement on the following day.
! Before the October 24, 2002 closing, the Chamberlain Parties were expressly made aware of Range=s plans to pursue certain claims against GP II and Mitchell after the closing, even though these claims were being released by Range in the Release.
! Both before and after the closing, the Chamberlain Parties breached their duties to disclose their knowledge that Range would pursue claims against GP II and against the escrowed funds.
! After the closing, Gennity and Chamberlain Hrdlicka participated in drafting changes to the Release, and the altered Release was signed by Range and given to the Chamberlain Parties on October 29, 2002.
! The Square Lake Parties did not learn of the existence of the signature page for the Release signed by Range on October 29, 2002, until October 3, 2003.
! As Escrow Agent under the July Agreement, the Chamberlain Parties owed the Square Lake Parties a fiduciary duty regarding the documents that were required to be executed and delivered to the Escrow Agent before the closing.
! The Chamberlain Parties had a duty to disclose to the Square Lake Parties that (1) Range intended to pursue certain claims against one or more of the Square Lake Parties some time after the closing and (2) Range intended to alter the terms of the Release.
The Square Lake Parties sought to recover actual damages, punitive damages, and attorney=s fees based on claims for breach of contract, breach of fiduciary duty, and fraud. Though they asserted claims for breach of fiduciary duty and fraud, the Square Lake Parties did not allege that the Chamberlain Parties made any affirmative misrepresentations; rather, they alleged various breaches by the Chamberlain Parties of an alleged duty to disclose.
The Chamberlain Parties filed a motion for summary judgment, in which they asserted the following grounds:
! The Chamberlain Parties are entitled to summary judgment on the contract claims because (1) New Mexico law applies to the July Agreement, (2) under New Mexico law, an escrow agent=s liability is fixed and limited by the terms of the escrow agreement, and (3) as a matter of law, the Chamberlain Parties did not breach any terms of the July Agreement.[7]
! As a matter of law, the Chamberlain Parties had no legal duty to disclose to the Square Lake Parties any of the information that the Square Lake Parties claim should have been disclosed because (1) New Mexico law applies to the July Agreement, (2) under New Mexico law, the escrow agent would have a duty to disclose only if this duty were contained in the July Agreement, and (3) in the July Agreement, the parties do not impose any duty to disclose on the escrow agent.
! In the alternative, the Chamberlain Parties had no legal duty to disclose to the Square Lake Parties any of the information that the Square Lake Parties claim should have been disclosed before closing because, as a matter of law, the Chamberlain Parties did not learn of this information until after the closing.
! As to any of the information that the Square Lake Parties claim should have been disclosed after closing, the Chamberlain Parties are entitled to a summary judgment under Texas Rule of Civil Procedure 166a(i) because there is no evidence that the alleged nondisclosure of any of this information caused any of the Square Lake Parties= alleged damages.
The Chamberlain Parties submitted various documents as well as affidavits from Gennity and Rodney Waller, a representative of Range.
In response, the Square Lake Parties asserted, among other things, the following:
! Gennity represented to Michael Short, lawyer for GP II and Mitchell, that Short=s clients would receive global releases.
! In June 2003, when Range and others sued Short=s clients in the Federal Lawsuit, it was too late for the Square Lake Parties to set aside the dismissal in the New Mexico Lawsuit, which dismissal had been procured by fraud.
! Gennity breached his contractual duties as escrow agent under the July Agreement by relinquishing possession of the GP II=s release of lien and the joint motion to dismiss the New Mexico Lawsuit (hereinafter AGP II Documents@) by allowing them to take effect and by failing to provide Short=s clients the promised global releases.
! Gennity breached his fiduciary duty by failing to disclose to the Square Lake Parties his knowledge that Range was planning to pursue claims against the Square Lake Parties.
The Square Lake Parties attached to their summary-judgment response an affidavit from Short, excerpts from Waller=s deposition, and various other documents.
The trial court granted the Chamberlain Parties= motion for summary judgment. On appeal, the Square Lake Parties challenge that ruling.
II. Standard of Review
In reviewing a traditional summary judgment, we consider whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). To be entitled to a traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff=s causes of action or conclusively establish each element of an affirmative defense. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). If the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000).
In reviewing a no‑evidence summary judgment, we ascertain whether the nonmovant pointed out summary‑judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no‑evidence grounds. Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206B08 (Tex. 2002). A no‑evidence summary judgment must be granted if the party opposing the motion does not respond with summary‑judgment evidence that raises a genuine issue of material fact. See Arguelles v. Kellogg Brown & Root, Inc., 222 S.W.3d 714, 723 (Tex. App.CHouston [14th Dist.] 2007, no pet.).
In our de novo review of a trial court=s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755B56 (Tex. 2007). When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
III. Analysis
A. Did the July Agreement impose on the Chamberlain Parties the contractual duties and duties of disclosure alleged by the Square Lake Parties?
On appeal, the Square Lake Parties assert that the summary-judgment evidence raises a genuine issue of material fact as to whether Gennity breached the terms of his contract to act as AEscrow Agent@ under the July Agreement by (1) relinquishing possession of the GP II Documents, (2) allowing them to take effect, and (3) failing to provide Short=s clients the promised global releases.[8] As to their breach-of-fiduciary duty and fraud claims, the Square Lake Parties assert on appeal that there is a genuine issue of material fact as to whether the Chamberlain Parties breached their alleged duty to disclose that they were not providing the Square Lake Parties with global releases and that Range intended to pursue certain claims against the Square Lake Parties after the closing, even though these claims were within the scope of the Release.[9]
The Square Lake Parties assert that the September 17, 2002 facsimile and the July Agreement together constitute the Chamberlain Parties= contract. For the purposes of this opinion, we presume, without deciding, that the September 17, 2002, facsimile constitutes the agreement of the Chamberlain Parties to serve as the escrow agent designated by Range under the July Agreement. However, the September 17, 2002 facsimile contains no terms relating to this escrow agreement. Even under the Square Lake Parties= argument, all of those terms are contained in the July Agreement, which contains a provision by which the parties agree that the agreement shall be governed by New Mexico law. In their motion, the Chamberlain Parties briefed New Mexico law and asserted as grounds for summary judgment that (1) New Mexico law applies to the July Agreement, (2) under New Mexico law, an escrow agent=s liability is fixed and limited by the terms of the escrow agreement, (3) as a matter of law, the Chamberlain Parties did not breach any of the July Agreement=s terms, (4) under New Mexico law, the Escrow Agent only has a duty to disclose if this duty is contained in the July Agreement, and (5) in the July Agreement, the parties do not impose any duty to disclose on the escrow agent.
The Square Lake Parties have not challenged the enforceability of the July Agreement=s choice-of-law provision, and they did not present argument in their opening brief in support of the proposition that New Mexico law does not apply.[10] In addition, the Square Lake Parties have not disagreed with the Chamberlain Parties= characterization of New Mexico law. We conclude that New Mexico law governs the July Agreement and that, under New Mexico law, an escrow agent=s liability is fixed and limited by the terms of the escrow agreement.[11] See Loyd v. Southwest Underwriters, 169 P.2d 238, 241B42 (N.M. 1946). Thus, we now examine the July Agreement.
In pertinent part, the July Agreement provides as follows:
4. On or prior to Closing, Square Lake shall execute and deliver to an escrow agent (AEscrow Agent@) designated by Range, an original assignment of all of Square Lake=s right, title, and interest in and to the Square Lake Project. . . .
5. On or prior to Closing, GP II shall execute and deliver to the Escrow Agent an original Release of Operator=s Lien, in recordable form, covering all of GP II=s interest in the Operator=s Lien. . . .
6. Prior to Closing, GP II (and Square Lake and/or Range, if such parties have filed an answer to the Lawsuit) shall instruct their respective counsel to execute and deliver to the Escrow Agent on or prior to the Closing, and Agreed Motion for Dismissal, with an accompanying order, accomplishing the dismissal, with prejudice, of all claims arising from or out of the Lawsuit.
7. On or prior to Closing, Range shall execute and deliver to the Escrow Agent (i) a fully executed acknowledged original of a Termination of Conveyance of Production Payment, and (ii) a fully executed original of a Termination of Production and Delivery Agreement . . . .
8. On or prior to Closing, Square Lake, GP II and Range shall execute mutual releases releasing each other, and each other=s respective owners, shareholders, directors, affiliates, subsidiaries, agents, attorneys and officers (including, but not limited to, George P. Mitchell II, Manny Sirgo, and Brian M. Sirgo, individually) from any and all claims and causes of action that any party may have against the other(s) up to and including the date of Closing of the sale of the Square Lake Project, including, but not limited to, all claims and causes of action arising out of the Square Lake Project.
9. Square Lake, GP II and Range shall execute and deliver to the appropriate persons any and all other documents reasonably necessary to accomplish the objectives set forth in this Agreement.
10. Upon the Closing of the sale of the Square Lake Project, the Escrow Agent shall be authorized to deliver to the appropriate parties all original documents referred to in Sections 4. through 9. above in order to accomplish the objectives set forth in this Agreement, without the necessity of any further written instructions from any party hereto.
In Paragraph 8 of the July Agreement, the parties do not explicitly agree to deliver the executed Release to the Escrow Agent. However, for the purposes of our analysis, we presume without deciding that under the July Agreement the parties were required to deliver the executed original Release to the Escrow Agent. Nonetheless, under the unambiguous language of the July Agreement, upon closing, the Escrow Agent is authorized, but not required, to deliver the original documents, including the Release, to the appropriate parties without the necessity of any further instructions. The Chamberlain Parties= summary-judgment evidence shows that, at the closing, the parties exchanged all of the closing documents but that Gennity maintained custody of the original counterpart of the Release executed by Range. The Square Lake Parties produced no evidence that any party requested that the Chamberlain Parties give any person this original counterpart. The summary-judgment evidence conclusively proves that the parties proceeded with the closing and accepted the Release with a copy of Range=s signature page.[12] Though the Escrow Agent was authorized to deliver this original counterpart, nothing in the July Agreement required this delivery. As a matter of law, the Chamberlain Parties= failure to deliver this original counterpart cannot be a breach of contract. See Loyd, 169 P.2d at 241B42. Therefore, the trial court did not err in granting summary judgment as to the claim that the Chamberlain Parties breached their alleged contract by failing to provide the Square Lake Parties with this original counterpart.
As to the Square Lake Parties= allegation that the Chamberlain Parties breached their alleged contract by relinquishing possession of the GP II Documents and allowing them to take effect after the closing, these alleged actions, as a matter of law, violate no duties contained in the July Agreement. Under the unambiguous language of the July Agreement, the Escrow Agent is authorized to deliver original closing documents to the appropriate parties upon closing without further instructions, and the Escrow Agent has no duty to wait for the occurrence of any event before delivering any of these original documents. Therefore, upon closing, the Escrow Agent had no duty to wait for any event to occur prior to relinquishing possession of the GP II Documents or prior to allowing them to take effect.[13] See Loyd, 169 P.2d at 241B42.
In addition, under the unambiguous language of the July Agreement, the parties imposed no duty on the Escrow Agent to disclose any knowledge the Escrow Agent might have. Therefore, as a matter of law, even if the Chamberlain Parties had knowledge that they were not providing the parties with global releases or that Range intended to pursue certain claims against the Square Lake Parties after the closing, the Chamberlain Parties did not have a duty to disclose this information. See Loyd, 169 P.2d at 241B42.
The July Agreement does not impose on the Chamberlain Parties the contractual duties and common law duties of disclosure alleged by the Square Lake Parties, and the Square Lake Parties have not asserted any meritorious appellate argument challenging the trial court=s summary judgment.
B. Did the summary-judgment evidence prove as a matter of law that the Chamberlain Parties had no pre-closing knowledge that Range intended to pursue claims against the Square Lake Parties or that Range intended to try to modify the Release?
Gennity testified that the Chamberlain Parties had no knowledge before the closing that (1) Range and CBS were investigating the potential claims for revenues allegedly due Range on past oil sales from the Properties or (2) Range had any intent or desire to modify the Release.[14] The summary-judgment evidence does not raise a genuine fact issue regarding the truth of this testimony.[15] Therefore, even under Texas law, the Chamberlain Parties would have had no duty to disclose before closing because they had no knowledge of these matters before closing. See HTM Rests., Inc v. Goldman, Sachs & Co., 797 S.W.2d 326, 329 (Tex. App.CHouston [14th Dist.] 1990, writ denied).
C. Did the Square Lake Parties point to summary-judgment evidence raising a fact issue as to whether the alleged nondisclosure of information learned by the Chamberlain Parties after closing caused any of the Square Lake Parties= alleged damages?
The Chamberlain Parties asserted there is no evidence that the alleged nondisclosure of any information learned by the Chamberlain Parties after closing caused any of the Square Lake Parties= alleged damages. Therefore, the burden shifted to the Square Lake Parties to point out summary‑judgment evidence of probative force to raise a genuine issue of fact in this regard. See Chrismon v. Brown, 246 S.W.3d 102, 108 (Tex. App.CHouston [14th Dist.] 2007, no pet.). However, in their response, the Square Lake Parties pointed to no evidence allegedly raising such a fact issue. For this reason alone, the trial court did not err in granting summary judgment on this no-evidence ground. See id. Furthermore, under the applicable standard of review, the summary-judgment evidence did not raise a genuine issue of fact as to whether the alleged nondisclosure of any information learned by the Chamberlain Parties after closing caused any of the Square Lake Parties= alleged damages. The only alleged damages mentioned in the Square Lake Parties= evidence is Short=s reference to the attorney=s fees they incurred in defending the Federal Lawsuit, though he does not specify the amount of fees incurred by the Square Lake Parties. Short states that in June 2003, the court in the New Mexico Lawsuit no longer could set aside the dismissal order, which Short states was procured by fraud.[16] However, there is no evidence from Short or any other source that the disclosure of any information discovered by the Chamberlain Parties after closing would have prevented Range from filing the Federal Lawsuit, and there is no evidence that the Square Lake Parties= total attorney=s fees in the New Mexico Lawsuit and the Federal Lawsuit were higher than they would have been had the Chamberlain Parties disclosed information they discovered after closing. The trial court did not err in granting summary judgment on this no-evidence ground.
Having concluded that the Square Lake Parties= appellate arguments lack merit, we overrule all issues and affirm the trial court=s judgment.
/s/ Kem Thompson Frost
Justice
Judgment rendered and Memorandum Opinion filed August 26, 2008.
Panel consists of Justices Fowler, Frost, and Seymore.
[1] The factual background in this opinion is based on the undisputed summary-judgment evidence.
[2] At no time did Gennity or Chamberlain Hrdlicka serve as legal counsel for GP II, Mitchell, or Sirgo.
[3] Emphasis in original.
[4] Counsel for the Square Lake Parties confirmed this fact at oral argument in this appeal.
[5] This letter agreement, under its unambiguous language, was proposed by CBS on October 23, 2002, and agreed to and signed by Range on October 24, 2002, the closing date. Range=s representative, Rodney Waller, testified in his affidavit that CBS and Range executed this agreement on October 23, 2002; however, his testimony cannot vary the terms of this unambiguous agreement. In any event, even if Range entered into this agreement on October 23, 2002, it would not change the disposition of this appeal.
[6] In their summary-judgment response, the Square Lake Parties noted that this escrow agreement is limited in scope, and they do not seek to recover based on any alleged breach of a duty arising from this escrow agreement.
[7] The Chamberlain Parties also asserted that they were entitled to summary judgment under Texas law.
[8] The Square Lake Parties list eight issues presented in their appellate brief; however, the arguments that they brief do not match up with these issues. We conclude that the appellate arguments in their brief are covered as subsidiary questions that are fairly included in the issues presented. See Tex. R. App. P. 38.1(e). However, to the extent the issues presented go beyond the arguments in the Square Lake Parties= brief, we conclude that the Square Lake Parties have waived these issues by failing to provide any argument, analysis, or authorities. See Tex. R. App. P. 38.1(h); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex. App.CHouston [14th Dist.] 2005, no pet.).
[9] On appeal, the Square Lake Parties also assert that Gennity made a misrepresentation to them that they Awould be provided global releases.@ However, in their live pleading in the trial court, the Square Lake Parties did not allege that the Chamberlain Parties made this or any other misrepresentation. In addition, the summary-judgment evidence does not raise a genuine issue of fact as to whether the Chamberlain Parties made this or any other alleged misrepresentation. Short testified that his providing his clients= closing documents to Gennity Awas conditioned on@ Gennity holding the documents in trust and not releasing them until he had obtained a global release from Range. However, this is no evidence of a representation from the Chamberlain Parties. Short also stated that his clients Arelied on Mr. Gennity=s representation and agreement that he would hold the [GP II Documents] in trust pursuant to the [July Agreement].@ This statement is conclusory and, in any event, is derivative of the terms of the July Agreement. Finally, Short said that, under the July Agreement, AGennity agreed that he would hold the [GP II Documents], conditioned on their not being turned over to [Range] until he had obtained a global release from [Range].@ Again, this testimony is derivative of the July Agreement and does not raise a genuine fact issue about any alleged misrepresentation by the Chamberlain Parties.
[10] The Square Lake Parties did not argue that New Mexico law does not apply in their summary-judgment response or in their opening appellate brief. In their appellate reply brief, the Square Lake Parties assert that Texas law applies rather than New Mexico law; however, they cited no legal authorities, and they did not address the New Mexico choice-of-law clause in the July Agreement.
[11] Therefore, the Texas cases cited by the Square Lake Parties regarding the liability of an escrow agent are not on point.
[12] At oral argument, counsel for the Square Lake Parties acknowledged that the Square Lake Parties received a copy of the signed Release at closing.
[13] In parts of their briefing, the Square Lake Parties appear to be arguing that the Chamberlain Parties had a duty not to relinquish possession of the GP II Documents until the Chamberlain Parties confirmed that Range had executed a valid and enforceable general release. To the extent they make this argument, as a matter of law, the July Agreement imposes no obligation on the Escrow Agent to inquire into the enforceability of the Release or to wait for a determination of the enforceability of the Release before delivering any of the original closing documents.
[14] This testimony is corroborated by the affidavit of Rodney Waller of Range.
[15] In their response, the Square Lake Parties asserted that an excerpt from Waller=s deposition raised a fact issue in this regard. However, under the applicable standard of review, this excerpt does not raise a genuine issue of material fact as to whether the Chamberlain Parties had such knowledge before the closing. In addition, the statements in Short=s affidavit regarding this deposition testimony are conclusory, and in any event, Short does not assert that Gennity had this knowledge prior to closing.
[16] Short makes a conclusory statement that the dismissal order no longer could be set aside. He does not cite any authorities, provide a legal analysis, or explain why his clients could not have had the dismissal order set aside under New Mexico Rule of Civil Procedure 60. See N.M. R. Civ. P. 1-060 (allowing trial court to grant relief from final judgment based on fraud, misrepresentation, or other misconduct of an adverse party if a motion for this relief is filed within a reasonable time and no later than a year after rendition of the judgment).