               In the
          Court of Appeals
  Second Appellate District of Texas
           at Fort Worth
        ___________________________
             No. 02-18-00352-CV
        ___________________________

CHICO AUTO PARTS & SERVICE, INC., Appellant

                       V.

           MARY MAXEY, Appellee



     On Appeal from the 342nd District Court
             Tarrant County, Texas
         Trial Court No. 342-269821-13


      Before Gabriel, Kerr, and Bassel, JJ.
     Memorandum Opinion by Justice Bassel
                              MEMORANDUM OPINION

                                 I. INTRODUCTION

      On appeal, Appellant Chico Auto Parts & Service, Inc. challenges the trial

court’s order granting Appellee Mary Maxey’s amended no-evidence motion for

summary judgment, the trial court’s failure to sustain Chico’s objections to Mary’s

summary-judgment evidence, and the trial court’s denial of Chico’s motion to appoint

an attorney ad litem for Mary. We affirm.

                                  II. BACKGROUND

      Chico is in the business of providing hazardous waste remediation services.

Mary Maxey has an interest in an oil well (Maxey I Well) that is operated by Black

Strata, LLC. Black Strata’s principal was Craig Crockett.

      Chico alleges that in 2011, the Texas Railroad Commission ordered

remediation of the Maxey I Well. Chico further alleges that it performed $63,415.55

worth of remediation services on Maxey I Well “on behalf of” Mary but that it was

not paid. In 2013, Chico filed the instant suit against Crockett, Black Strata, and

Mary, alleging claims against Mary for breach of contract, quantum meruit, and breach

of fiduciary duty. Crockett filed a motion for summary judgment, which was granted,

severed, appealed, and affirmed. See Chico Auto Parts & Serv., Inc. v. Crockett, 512

S.W.3d 560 (Tex. App.—El Paso 2017, pet. denied). Black Strata confessed judgment

for $43,415.55. Id. at 566.


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       Mary filed a no-evidence motion for summary judgment.            Chico filed a

response and a motion for an appointment of an attorney ad litem for Mary. Mary

then filed an amended no-evidence motion for summary judgment, specifically

identifying each element of each claim and contending that Chico had no evidence of

them. Chico responded and attached hundreds of pages of exhibits. However, the

response did not address each specific element challenged by Mary and only generally

referenced the exhibits. Conspicuously absent from the summary judgment record is

any written contract, invoice, document, or affidavit establishing that Chico had a

contract with Mary to perform remediation services, that Chico actually performed

remediation services, an amount that Chico was owed for performing remediation

services, or that Mary had any legal obligation to pay Chico for any remediation

services.

       After a hearing, the trial court granted Mary’s no-evidence summary judgment

motion. Chico raises three issues on appeal.

              III. NO-EVIDENCE SUMMARY JUDGMENT WAS PROPER

       In its first issue, Chico asserts that the trial court erred by granting the no-

evidence summary judgment because issues of material fact exist on Chico’s causes of

action. We disagree.

       Mary’s no-evidence motion for summary judgment properly challenged that

Chico had no evidence to support any of the elements of its breach-of-contract claim,


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quantum-meruit claim, or breach-of-fiduciary-duty claim.1 Chico’s response to Mary’s

no-evidence motion for summary judgment failed to address each specific element

challenged or set forth more than a scintilla of evidence on the challenged elements of

each of its claims against Mary. Therefore, summary judgment was proper.

                               A. Standard of review

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground that

no evidence supports an essential element of the nonmovant’s claim or defense. Tex.

R. Civ. P. 166a(i). The motion must specifically state the elements for which no

evidence exists. Id.; Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The

trial court must grant the motion unless the nonmovant produces summary-judgment

evidence that raises a genuine, material fact issue. See Tex. R. Civ. P. 166a(i) & 1997

cmt.; Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008).

      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). We review a no-evidence summary judgment for evidence that

would enable reasonable and fair-minded jurors to differ in their conclusions.

      1
        On appeal, Chico appears to contend that it also brought a fraud claim against
Mary and that summary judgment should not have been granted on that claim. If that
is Chico’s contention, it is not supported by the pleadings because the fraud claim was
alleged against Black Strata and Crockett.

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Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.

2005)). We credit evidence favorable to the nonmovant if reasonable jurors could,

and we disregard evidence contrary to the nonmovant unless reasonable jurors could

not. Timpte Indus., 286 S.W.3d at 310 (citing Mack Trucks, Inc. v. Tamez, 206 S.W.3d

572, 582 (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. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009);

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

      Rule 166a(i) does not authorize general no-evidence challenges or conclusory

motions. Timpte Indus., 286 S.W.3d at 310 (citing Tex. R. Civ. P. 166a(i) & 1997 cmt.).

Rather, the rule requires the moving party to specifically challenge the opponent’s

evidentiary support for an element of a claim or defense. Id.; see Cmty. Health Sys. Prof’l

Servs. Corp. v. Hansen, 525 S.W.3d 671, 695 (Tex. 2017) (explaining that the supreme

court strictly enforces the requirement that a no-evidence motion specifically state the

element or elements for which there is no evidence). But neither “[r]ule 166a(i) nor

its comment forbid [challenging every element of a claim], as long as each element is

distinctly and explicitly challenged.” Martin v. McDonnold, 247 S.W.3d 224, 233 (Tex.

App.—El Paso 2006, no pet.).




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  B. No-evidence summary judgment was proper on the breach-of-contract
                               claim.

      In her amended no-evidence motion for summary judgment, Mary identified

and listed the elements of a breach-of-contract claim and then specifically alleged that

Chico had no evidence to support any of the elements of its breach-of-contract claim:

      Plaintiff has no evidence of any of the following: that Plaintiff is a
      proper party to bring suit for breach of contract, that Plaintiff performed
      contractual obligations under a contract with Movant, that Movant
      breached a contract, or that Movant’s alleged breach caused Plaintiff
      injury.

Thus, Mary distinctly and explicitly challenged each element of Chico’s breach-of-

contract claim. See id. To maintain its breach-of-contract claim, Chico was required

to set forth more than a scintilla of evidence on each of the following elements: “(1)

the existence of a valid contract; (2) performance or tendered performance by [Chico];

(3) breach of the contract by [Mary]; and (4) damages to [Chico] resulting from that

breach.” Woodhaven Partners, Ltd. v. Shamoun & Norman, L.L.P., 422 S.W.3d 821, 837

(Tex. App.—Dallas 2014, no pet.).

      Chico’s summary judgment briefing—like its appellate briefing—fails to

specifically direct the court to evidence in the record of a valid contract, performance

by Chico, breach by Mary, or damages to Chico. Our review of the record reveals no

written contract, invoice, document, or affidavit to show that Chico had a contract

with Mary to perform remediation services, that Chico actually performed



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remediation services, an amount that Chico was owed for performing remediation

services, or that Mary failed to pay Chico for any remediation services.

      Therefore, we hold that the trial court did not err in granting Mary’s no-

evidence motion for summary judgment on Chico’s breach-of-contract claim.

C. No-evidence summary judgment was proper on the quantum meruit claim.

      Mary’s amended no-evidence motion for summary judgment also challenged

Chico to set forth evidence on each element of its quantum meruit claim:

      Plaintiff has failed to produce any evidence as to how services or
      materials allegedly provided by Plaintiff were provided for Movant.
      Namely, Plaintiff has failed to produce any documents or testimony
      evidencing Movant’s ownership of the surface estate upon which
      Plaintiff’s work was allegedly performed. Further, Plaintiff has failed to
      produce any evidence that Movant accepted the services or materials
      allegedly provided by Plaintiff. Lastly, Plaintiff has failed to produce any
      evidence of how Movant would have had reasonable notice that Plaintiff
      would have expected compensation for services or materials that were
      not provided to Movant at all.

That is, Mary distinctly and explicitly challenged each element of Chico’s quantum

meruit claim. See Martin, 247 S.W.3d at 233. To survive a no-evidence motion for

summary judgment on its quantum meruit claim, Chico was required to set forth

more than a scintilla of evidence (1) that it rendered valuable services; (2) for Mary; (3)

that those services were accepted by Mary, and were used and enjoyed by her; and (4)

Mary was reasonably notified that Chico was expecting to be paid by Mary for

performing such services. See Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 732–

33 (Tex. 2018).

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      Here, Chico set forth no evidence of the first, second, third, or fourth elements

of its quantum meruit claim. No exhibits attached to its summary judgment response

nor any specific record citations in its appellate briefing demonstrate that Chico

provided any remediation services, that said remediation services were provided for

Mary, that Mary accepted those services, or that Mary was reasonably notified that

Chico would be performing such services and expecting payment from her.

      Therefore, we hold that the trial court did not err in granting the no-evidence

summary judgment on Chico’s quantum meruit claim.

 D. No-evidence summary judgment was proper on the breach-of-fiduciary-
                            duty claim.

      Just like it did with the other two claims, Mary’s amended no-evidence motion

for summary judgment challenged Chico to set forth evidence on each specific

element of its breach-of-fiduciary-duty claim:

      Plaintiff has failed to produce any evidence that Plaintiff and Movant
      had a fiduciary relationship. To prove an action for breach of fiduciary
      duty, Plaintiff must establish Movant was Plaintiff’s fiduciary. . . . In this
      instance, there was no formal or informal recognized fiduciary
      relationship created by law or contract. There is no fiduciary
      relationship imposed under Texas law between the owner of a royalty
      interest and the contractor for services with the operator of an oil and
      gas lease. Second, Plaintiff has failed to produce any evidence that
      Movant breached any fiduciary duty to Plaintiff, or that any alleged
      breach by Movant resulted in injury to Plaintiff or a benefit to Movant.

Again, Mary’s no-evidence motion distinctly and explicitly challenged each element of

this claim. See Martin, 247 S.W.3d at 233. Therefore, to survive Mary’s amended no-

evidence motion for summary judgment, Chico was required to set forth evidence of
                                            8
the existence of a fiduciary duty, breach of the duty, causation, and damages.

Woodhaven Partners, 422 S.W.3d at 838.

      When asked at the summary-judgment hearing what evidence Chico had to

support the existence of a fiduciary duty owed by Mary to Chico, Chico’s counsel

stated, “Everybody has a fiduciary relationship to everybody.” But as the Supreme

Court of Texas has explained, “It is well settled that ‘not every relationship involving a

high degree of trust and confidence rises to the stature of a fiduciary relationship.’”

Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex. 2005) (quoting Schlumberger Tech. Corp. v.

Swanson, 959 S.W.2d 171, 176–177 (Tex. 1997)). Indeed, in the context of a business

transaction, “mere subjective trust does not . . . transform arm’s-length dealing into a

fiduciary relationship.” Schlumberger Tech. Corp, 959 S.W.2d at 177. Simply put, Chico

had to set forth more than a scintilla of evidence to show that it had a fiduciary

relationship with Mary.

      But Chico has failed to set forth even a scintilla of evidence that it had a

relationship with Mary, let alone a fiduciary one. Nor did Chico set forth evidence of

breach of any fiduciary duty, or damages caused by such a breach. Therefore, we hold

that the trial court did not err in granting Mary’s no-evidence motion for summary

judgment on Chico’s breach-of-fiduciary-duty claim.

      Accordingly, we overrule Chico’s first issue.




                                            9
                        IV. ISSUES 2 AND 3 NOT PRESERVED

      Although she styled her motion as an amended no-evidence motion for

summary judgment, Mary attached two affidavits and several exhibits. Chico objected

to portions of two of the attached affidavits.

      In its second issue, Chico contends that the trial court erred by granting

summary judgment because the challenged affidavits contained inadmissible evidence.

But Chico did not preserve this argument because it failed to obtain a ruling on its

evidentiary objections. See Tex. R. App. P. 33.1(a)(2); Seim v. Allstate Tex. Lloyds, 551

S.W.3d 161, 164, 166 (Tex. 2018). Accordingly, we overrule Chico’s second issue.

      Chico’s third and final issue challenges the trial court’s denial of Chico’s motion

for the appointment of an ad litem attorney for Mary. But we need not reach this

issue either. Because Chico directs us to no apparent final adverse ruling or refusal to

rule in this record, the complaint is not preserved.2 See Tex. R. App. P. 33.1(a)(2);

Castleberry v. Weatherford ISD, No. 2-02-00183-CV, 2003 WL 1784578, at *3 (Tex.

App.—Fort Worth Apr. 3, 2003, no pet.) (mem. op.) (affirming summary judgment

      2
       Assuming arguendo that an adverse ruling did appear in the record, Chico does
not explain, nor do we discern, how or why the purported denial of its motion for the
appointment of an ad litem attorney for Mary caused the no-evidence motion for
summary judgment to be granted. See Tex. R. App. P. 44.1(a) (stating that no
judgment may be reversed on appeal on the basis that the trial court erred unless the
court of appeals concludes that the error complained of probably caused the rendition
of an improper judgment or probably prevented the appellant from properly
presenting the case); In re Marriage of Scott, 117 S.W.3d 580, 584 (Tex. App.—Amarillo
2003, no pet.) (stating that the burden lies with an appellant to establish that the
purported error caused rendition of an improper judgment).

                                           10
and holding the appellant failed to preserve error regarding his motion to compel

when the record showed that the trial court never granted or denied the motion to

compel and that the appellant had not objected to the trial court’s refusal to rule).

Accordingly, we overrule Chico’s third issue.

                                  V. CONCLUSION

      Having overruled Chico’s three issues, we affirm the trial court’s judgment.


                                                     /s/ Dabney Bassel
                                                     Dabney Bassel
                                                     Justice

Delivered: July 3, 2019




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