Opinion issued May 9, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-18-00108-CV
                            ———————————
                      PRESTON MARSHALL, Appellant
                                        V.
                           RIBOSOME L.P., Appellee


                    On Appeal from the 270th District Court
                             Harris County, Texas
                       Trial Court Case No. 2015-30009


                         MEMORANDUM OPINION

      Preston Marshall, a limited partner of Ribosome, L.P. and a beneficiary of two

trusts which are also limited partners, was joined in an interpleader action brought

by Frost Bank involving Preston’s challenge to the ownership of funds held in a

Ribosome bank account. In that action, Preston brought cross-claims against
Ribosome for (1) aiding and abetting in a breach of fiduciary duty committed by the

trustee over the limited partner trusts, (2) breach of an oral agreement that Ribosome

would distribute the portion of profits it owed to the trusts directly to Preston as their

ultimate beneficiary, or alternatively, (3) promissory estoppel, and (4) an accounting

based on allegations that Ribosome miscalculated distributions.

      Ribosome moved for summary judgment on Preston’s claims for aiding and

abetting breach of fiduciary duty, breach of contract, and promissory estoppel claims

and, in a second motion, on his accounting claim. The trial court granted both

motions. On appeal, Preston contends that the trial court erred in granting summary

judgment because fact issues remain on whether (1) the breaches of fiduciary duty

underlying the aiding and abetting claim occurred and caused harm to Preston;

(2) the profit distribution agreement was too indefinite to enforce or terminable at

will; (3) Ribosome is estopped from denying the distribution agreement; and

(4) challenges to Ribosome’s distribution calculations require an accounting.

Finding no error, we affirm.

                                   BACKGROUND

      This dispute involves the descendants of Texas oilman J. Howard Marshall II.

The Marshall family, one of the wealthiest in the country, manages its wealth

through a network of partnerships, trusts, and other entities, many of which are

located outside the United States. Elaine Marshall, Preston’s mother, has played


                                            2
instrumental roles in the entities involved in this dispute. MarOpCo, a management

company, provides administrative services, including accounting, bookkeeping,

record maintenance, and tax preparation, for the Marshall entities.

      Ribosome, a limited partnership organized under the laws of the British Virgin

Islands, is one of those entities. Its holdings consist of shares of non-voting stock of

a trust that holds equity in Koch Industries, Inc. and Koch Holdings, LLC. Elaine

serves as sole manager of Ribosome’s general partner, Tanzanite Trading, LLC.

Ribosome has eighteen limited partners that own units of one or more of Ribosome’s

seven classes of membership. Preston and his brother are limited partners, as are a

number of family-owned entities and trusts. The Falcon Trust and the Harrier Trust,

which Preston’s parents created in 2006 for the benefit of Preston and his children,

are also limited partners in Ribosome.

      During most of the time pertinent to this appeal, Elaine was Trustee of the

Harrier Trust and the Falcon Trust. Preston is both the income and principal

beneficiary of the Harrier Trust. The Falcon Trust names Preston as the income

beneficiary and his children as the principal beneficiaries. As to income distribution,

the Trusts provide that

      [t]he Trustee in her sole discretion may accumulate or distribute income
      accruing for the benefit of the beneficiary(ies) until expiration of the
      trust. The Trustee shall have discretion in determining the time or
      frequency of any distributions.


                                           3
Both Trusts give the trustee “the sole discretion to determine the manner, time,

circumstances and conditions of the exercise of any right, power or authority vested

in the Trustee.”1 The Marshalls created similar trusts to benefit their son, Pierce, Jr.,

and his children at or near the same time they made the Harrier and Falcon trusts.

      Through MarOpCo, Ribosome periodically distributes dividends to its limited

partners in an amount corresponding to the interest that each limited partner holds.

As limited partners, Preston and the Trusts are entitled to receive dividends from

Ribosome. The value of Preston’s individual interest in Ribosome is relatively small.

The trusts, though, own substantial interests in Ribosome, giving Preston a

significant beneficial interest in Ribosome’s distributions.

      In 2006, Elaine, the President of MarOpCo, hired Preston to serve as its Vice

President. In a 2007 family meeting, Preston, his brother, Pierce, Jr., and Elaine

entered into an oral agreement, under which Ribosome would bypass the Trusts and

pay the Trusts’ shares directly to Preston as their beneficiary.2 Preston and


1
      While this case was pending in the trial court, Elaine stepped down from her position
      as Trustee of the Falcon Trust. The Trust instrument empowered her “to select and
      designate one or more disinterested individuals to serve as: co-trustee, and may
      designate her successor should she cease or otherwise fail to serve as Trustee for
      any reason whatsoever.” She exercised that power to appoint five successor co-
      trustees for the Falcon Trust.
2
      Although the parties dispute some of these facts, we consider the record in the light
      most favorable to Preston, the nonmovant. See Johnson v. Brewer & Pritchard,
      P.C., 73 S.W.3d 193, 197 (Tex. 2002).


                                            4
MarOpCo’s then-controller implemented this distribution agreement, and it

remained in place through June 2015, when Elaine terminated Preston’s

employment.

      Shortly thereafter, Elaine ended the distribution agreement. As Trustee of the

Harrier and Falcon Trusts, Elaine signed writings revoking “all previous decisions

permitting Ribosome, L.P., to make distributions directly to the beneficiary” and

resolving that all future Ribosome distributions to the Trusts be made by cash

transfer to the Trusts’ bank accounts. Since then, the Trusts have accumulated

income, but Preston has not received any distributions from them. At the same time,

Preston’s brother, Pierce Jr., has continued to receive distributions from the similar

trusts created for his and his family’s benefit.

      In June 2015, Preston sued MarOpCo for wrongful termination and

conversion of personal property he allegedly was prevented from removing from its

premises. Elaine admitted withholding distributions from Preston because she was

“distressed” at the lawsuits he had initiated since she fired him from MarOpCo.

      Later in 2015, Elaine, on behalf of Ribosome’s general partner, asked Frost

Bank to close a Ribosome account and have the funds transferred to a bank in Dallas.

Preston challenged the transfer, and Frost Bank brought an interpleader action to

resolve the competing claims. Several months later, when the interpleader was close

to resolution, Preston brought cross-claims against Ribosome for breach of the 2007


                                           5
oral agreement, promissory estoppel, and aiding and abetting breach of fiduciary

duty arising out of its return to the practice of paying distributions owed to the Trusts

directly to the Trusts’ bank accounts. Preston also sought an accounting to correct

Ribosome’s purported miscalculations of distributions.

                                    DISCUSSION

      The trial court granted Ribosome summary judgment on Preston’s claims that

Ribosome (1) aided and abetted in breaches of the fiduciary duty that Elaine owed

the Harrier and Falcon Trusts as their Trustee; (2) failed to comply with an oral

agreement that Ribosome distribute the share of profits belonging to the Trusts

directly to Preston as their beneficiary, or alternatively, (3) was estopped from

changing the direct distribution practice. The trial court also granted Ribosome

summary judgment on Preston’s claim for a common-law accounting. Preston

challenges these rulings.

I.    Summary-Judgment Standard of Review

      We review de novo a trial court’s summary-judgment ruling. Travelers Ins.

Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Ribosome moved for summary

judgment on both traditional and no-evidence grounds. See TEX. R. CIV. P. 166a(c),

(i). To prevail on summary judgment based on traditional grounds, the movant bears

the burden of proving that no genuine issue of material fact exists and that he is




                                           6
entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort

Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

A matter is conclusively established if reasonable people could not differ as to the

conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d

802, 816 (Tex. 2005). If the movant meets this burden, the burden then shifts to the

nonmovant to raise a genuine issue of material fact precluding summary judgment.

See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); see also

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per

curiam) (explaining that summary-judgment evidence raises fact question if

reasonable and fair-minded jurors could differ in their conclusions in light of all

evidence presented).

      To determine whether a fact issue exists, we review the evidence in the light

most favorable to the nonmovant, crediting favorable evidence if reasonable jurors

could and disregarding contrary evidence unless reasonable jurors could not.

Fielding, 289 S.W.3d at 848 (citing City of Keller, 168 S.W.3d at 827). We indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor. Sw.

Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002) (citing Sci. Spectrum,

Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997), and Friendswood Dev. Co. v.

McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996)).




                                         7
      Ribosome’s motions for summary judgment sought dismissal on traditional

grounds as to some claims and on no-evidence grounds as to others. A trial court

must grant a no-evidence motion for summary judgment if the movant asserts that

there is no evidence of one or more specified elements of a claim or defense on

which the nonmovant would have the burden of proof at trial and if the nonmovant

produces no summary-judgment evidence raising a genuine issue of material fact on

each of the challenged elements. TEX. R. CIV. P. 166a(i); Lockett v. HB Zachry Co.,

285 S.W.3d 63, 67 (Tex. App.—Houston [1st Dist.] 2009, no pet.); see Fort Worth

Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). A genuine issue

of material fact exists if the nonmovant produces more than a scintilla of evidence

establishing the existence of the challenged elements. Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 600 (Tex. 2004). More than a scintilla of evidence exists if the

evidence would allow reasonable and fair-minded people to differ in their

conclusions. City of Keller, 168 S.W.3d at 827; see Mayes, 236 S.W.3d at 755. If the

nonmovant fails to produce more than a scintilla of evidence under that burden, there

is no need to analyze whether the movant’s proof satisfies the rule 166a(c) burden.

Ford Motor Co., 135 S.W.3d at 600.

II.   Claims Based on the Distribution Agreement

      Preston contends that trial court erred in granting summary judgment on his

claims against Ribosome for breach of contract, promissory estoppel, and aiding and


                                         8
abetting a breach of fiduciary duty, all of which arise out of the termination of

Ribosome’s purported agreement to make distributions owed to the Harrier and

Falcon Trusts as its limited partners directly to Preston as the Trusts’ ultimate

beneficiary.

          A.    Breach of contract

          Preston argues that the summary-judgment evidence raises genuine issues of

material fact concerning whether Ribosome breached the distribution agreement.

Parties form a binding contract when the following elements are present: (1) an offer,

(2) an acceptance in strict compliance with the terms of the offer, (3) a meeting of

the minds, (4) each party’s consent to the terms, and (5) execution and delivery of

the contract with the intent that it be mutual and binding. Porter-Garcia v. Travis

Law Firm, 564 S.W.3d 75, 87 (Tex. App.—Houston [1st Dist.] 2018, pet. denied).

An enforceable and legally binding contract is formed if it is sufficiently definite in

its essential terms. See Winchek v. Am. Express Travel Related Servs. Co., 232

S.W.3d 197, 202 (Tex. App.—Houston [1st Dist.] 2007, no pet.). Essential terms are

“those terms that the parties ‘would reasonably regard as vitally important elements

of their bargain.’” Gen. Metal Fabricating Corp. v. Stergiou, 438 S.W.3d 737, 744

(Tex. App.—Houston [1st Dist.] 2014, no pet.) (quoting Potcinske v. McDonald

Prop. Invs., Ltd., 245 S.W.3d 526, 531 (Tex. App.—Houston [1st Dist.] 2007, no

pet.)).


                                           9
      It is undisputed that the parties did not set a duration for the distribution

modification when they allegedly agreed to it. When duration is essential to

performance, the lack of a definite time may render an agreement unenforceable. See

Cytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 486 (Tex. App.—Houston [1st Dist.]

2006, pet. denied). Under some circumstances, however, Texas courts have

concluded that the lack of a duration term does not make an agreement

unenforceable, observing that the law may imply a reasonable duration if the

contract is definite enough that the court may fix the time for performance. See id.

(citing Moore v. Dilworth, 179 S.W.2d 940, 942 (Tex. 1944), and Avila v. Gonzalez,

974 S.W.2d 237, 244 (Tex. App.—San Antonio 1998, pet. denied)). Further, Texas

courts have long considered contracts that contemplate continuing performances and

are indefinite in duration—for example, a lease or an employment agreement—as

terminable at will. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d

831, 841 (Tex. 2000) (quoting Clear Lake City Water Auth. v. Clear Lake Utils. Co.,

549 S.W.2d 385, 390 (Tex. 1977)).3




3
      Preston argues that cases involving employment contracts are distinguishable
      because employment contracts are presumptively at will. The application of an at-
      will presumption in the context of employment agreements, despite having a
      different subject matter, has nothing to do with whether an agreement like the one
      alleged here is terminable at will because it has features that Texas courts have
      recognized as manifesting an intent that the agreement can be terminated at any time
      for any reason.

                                           10
      Based on Ribosome’s history of making periodic distributions pursuant to its

partnership agreement and its past performance, we interpret the oral distribution

agreement as contemplating that Ribosome would perform by making periodic

distributions directly to Preston of the profits that otherwise would have gone to the

Trusts, according to the same schedule used for making distributions to all of the

limited partners. As a contract of indefinite duration that contemplated continuing

or successive performance, it was terminable at the will of either party. See Clear

Lake, 549 S.W.2d at 390; Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 678

(Tex. App.—Houston [1st Dist.] 1996, no writ) (stating, as ground alternate to

holding that contract was too indefinite for enforcement, that contract was

terminable at will); Tracy v. Annie’s Attic, Inc., 840 S.W.2d 527, 538–39 (Tex.

App.—Tyler 1992, writ denied) (agreement between retail business consultant and

corporation that provided “this is an everlasting agreement,” and contemplated

continuing performance could be terminated at will of either party).4




4
      Preston attempts to distinguish Tracy v. Annie’s Attic, Inc., 840 S.W.2d 527 (Tex.
      App.—Tyler 1992. writ denied), based on the contract’s subject matter and pointing
      out that in this case, the distribution agreement’s existence depends on the existence
      of the limited partner entities. He does not, however, point to any evidence showing
      that the entities will cease to exist on a date certain or other evidence that the contract
      is not of an indefinite duration.

                                              11
      B.     Promissory estoppel

      Preston claims that the trial court erred in granting summary judgment against

him on his promissory estoppel claim. Promissory estoppel is a defensive theory that

estops a promisor from denying the enforceability of a promise. Trammel Crow Co.

No. 60 v. Harkinson, 944 S.W.2d 631, 636 (Tex. 1997). The elements of a

promissory estoppel claim are: (1) a promise (2) foreseeability of reliance by the

promisor, and (3) substantial reliance by the promisee to his detriment. Miller v.

Raytheon Aircraft Co., 229 S.W.3d 358, 378 (Tex. App.—Houston [1st Dist.] 2007,

no pet.) (citing English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983)). To show

detrimental reliance, the plaintiff must show that he materially changed his position

in reliance on the promise. See id. at 379.

      According to Preston, Ribosome promised to distribute the funds it owed to

the Trusts directly to Preston and he detrimentally relied on that promise by

borrowing $53 million from Elaine in 2008 to make a stock purchase. Preston does

not, however, allege that that Ribosome made any promise concerning the effect of

the loan agreement on Ribosome’s distributions to Preston or the Trusts as limited

partners, let alone one that obligates Ribosome to continue distributing Trust funds

directly to Preston until he repaid the loan.

      Acting on behalf of Ribosome’s general partner, Elaine ended the direct

distributions to Preston as the Trusts’ beneficiary and, as Trustee, she revoked any


                                          12
previous decisions permitting Ribosome to make the direct distributions. Without

authority to deviate from the distribution method set out in its partnership agreement,

Ribosome reverted to that method, which requires that the proceeds be distributed

to the limited partners—the legal owners of the proceeds. Because the direct

distribution agreement was terminable at will and was not modified to address

Preston’s debt, the circumstances do not give rise to detrimental reliance as a matter

of law. See Miller, 229 S.W.3d at 379 (no detrimental reliance where employee was

hired at will shortly before new joint venture succeeded employer, and joint venture

terminated his employment four days after succession).

      C.     Aiding and abetting breach of fiduciary duty

      Preston complains that the trial court erred in granting summary judgment on

his claim that Ribosome aided and abetted a breach of the fiduciary duties that Elaine

owed as Trustee of the Harrier and Falcon Trusts. Ribosome challenged this claim

on both no-evidence and traditional grounds, first alleging that Preston had no

evidence that Elaine, as trustee, breached any fiduciary duty.

      Whether a fact issue exists as to breach of fiduciary duty depends on the

Trusts’ terms. The construction of a trust instrument is a question of law that we

review de novo. See Hurley v. Moody Nat’l Bank of Galveston, 98 S.W.3d 307, 310

(Tex. App.—Houston [1st Dist.] 2003, no pet.) (citing Nowlin v. Frost Nat’l Bank,

908 S.W.2d 283, 286 (Tex. App.—Houston [1st Dist.] 1995, no writ)). We interpret


                                          13
trust instruments the same way we construe wills, contracts, and other legal

documents. Alpert v. Riley, 274 S.W.3d 277, 286 (Tex. App.—Houston [1st Dist.]

2008, pet. denied). We determine the settlor’s intent from the language used within

the four corners of the instrument. See Shriner’s Hosp. for Crippled Children of Tex.

v. Stahl, 610 S.W.2d 147, 151 (Tex. 1980); Eckels v. Davis, 111 S.W.3d 687, 694

(Tex. App.—Fort Worth 2003, pet. denied). The meaning of the trust instrument is

a question of law when no ambiguity exists. Alpert, 274 S.W.3d at 286. If the court

can give a definite legal meaning or interpretation to an instrument’s words, it is

unambiguous, and the court construes the instrument as a matter of law. Id. (citing

Coker v. Coker, 650 S.W.2d 391, 393 (Tex.1983)); see Hurley, 98 S.W.3d at 310–

11 (explaining that if language conferring powers on trustee unambiguously

expresses settlor’s intent, neither trustee nor court can take those powers away).

             1.     Sufficiency of Ribosome’s no-evidence challenge

      Citing Helm Companies v. Shady Creek Housing Partners, Ltd., No. 01-05-

00743-CV, 2007 WL 2130186 (Tex. App.—Houston July 26, 2007, pet. denied)

(mem. op.), Preston first claims that Ribosome’s no-evidence motion was fatally

defective because it failed to identify the elements for aiding and abetting. See id. at

*5–6. The Texas Supreme Court has not expressly recognized aiding and abetting

another’s tortious conduct as a cause of action. See First U. Pentecostal Church of

Beaumont v. Parker, 514 S.W.3d 214, 224 (Tex. 2017). Helm Companies involved


                                          14
a claim for knowing participation in a breach of fiduciary duty. See id. at *4.

Assuming that Preston’s aiding and abetting claim is comparable to the knowing

participation claim in Helm Companies, it shares the requirement that the plaintiff

prove the existence of an underlying breach of fiduciary duty.

      Ribosome’s motion argues that there is no issue of fact as to Preston’s breach

of fiduciary duty claim, which Preston relies on as the basis for his aiding and

abetting claim against Ribosome. This contention is not vague or conclusory; it

states the specific element of Preston’s aiding and abetting claim that Ribosome

challenges for lack of evidence, and thus complies with Rule 166a(i). See TEX. R.

CIV. P. 166a(i) cmt. (explaining that motion “must be specific in challenging the

evidentiary support for an element of a claim” and “conclusory motions or general

no-evidence challenges to an opponent’s case” are insufficient); Neurodiagnostic

Tex., L.L.C. v. Pierce, 506 S.W.3d 153, 175 (Tex. App.—Tyler 2016, no pet.); see

also Estate of Danford, 550 S.W.3d 275, 280 (Tex. App.—Houston [14th Dist.]

2018, no pet.) (explaining that in no-evidence motion for summary judgment,

movant asserts that there is no evidence of one or more essential elements of claims

for which nonmovant bears the burden of proof at trial). Finding the motion

sufficient, we turn to whether the trial court’s ruling comports with the law and the

record.




                                         15
             2.     No evidence of breach of fiduciary duty

      Preston claims that Ribosome aided and abetted breaches of the fiduciary

duties that Elaine owed to the Harrier and Falcon Trusts. His aiding and abetting

claim, then, relies on the existence of an underlying breach of fiduciary duty. A cause

of action for breach of fiduciary duty requires the plaintiff to show (1) a fiduciary

relationship between the parties, (2) the defendant’s breach of fiduciary duty to the

plaintiff, and (3) injury to the plaintiff or benefit to the defendant resulting from the

breach. Dauz v. Valdez, No. 01-15-00831-CV, 2018 WL 4129826, at *6 (Tex.

App.—Houston [1st Dist.] Aug. 30, 2018, no pet.) (citing Plotkin v. Joekel, 304

S.W.3d 455, 479 (Tex. App.—Houston [1st Dist.] 2009, pet. denied)).

      Preston contends that Elaine, as trustee of the Harrier and Falcon Trusts,

breached her fiduciary duty by acting in bad faith to accumulate Trust income instead

of distributing it to him, as had been the practice before the termination of his

employment with MarOpCo. Under the Trusts’ language, however, the Trustee has

absolute, unfettered discretion over the decision to accumulate or distribute the Trust

income. See, e.g., Caldwell v. River Oaks Tr. Co., No. 01-94-00273-CV, 1996 WL

227520, at *12 (Tex. App.—Houston [1st Dist.] May 2, 1996, writ denied) (mem.

op.) (“A power is considered discretionary if the trustee may decide whether or not

to exercise it.”). In her “sole discretion,” the Trustee “may accumulate or distribute

income accruing for the benefit of the beneficiaries,” and “determin[e] the time or


                                           16
frequency of any distributions” as well as “the manner, time, circumstances, and

conditions of the exercise of any right, power or authority vested in the Trustee.”

      Preston claims that his breach of fiduciary duty claim is supported by evidence

that Elaine acted unfairly, suggesting that she knew he had come to depend on the

distributions and that she had treated his brother differently under the separate trusts

that benefit him. Preston labels this perceived unfairness as “bad faith”; however, a

decision to accumulate interest—which the plain language of the Trusts expressly

allows—and the differences in treatment between the beneficiaries of different trusts

does not raise a fact issue showing a breach of fiduciary duty. Neither of the Trusts

contains language limiting the trustee’s discretionary authority, such as by declaring

a purpose to provide living expenses or requiring the distributions to Preston to be

equal to those made to Pierce, Jr. under the trusts that benefit him. See, e.g., Doherty

v. JPMorgan Chase Bank, N.A., No. 01-08-00682-CV, 2010 WL 1053053, at * (Tex.

App.—Houston [1st Dist.] Mar. 11, 2010, no pet.) (mem. op.) (holding that trustee

erred in denying funds for modification of bathroom in daughter’s home where

beneficiary had moved after suffering stroke that left her physically impaired; trust

required disbursement of funds on beneficiary’s request to provide for her “comfort,

health, support, or maintenance”). None of the circumstances raises a fact issue as

to whether Elaine abused the broad discretionary authority conferred by the Trusts.




                                          17
      Further, the record has no evidence of loss or injury to Preston or the Trusts

or of benefit to Elaine resulting from the decision to accumulate the Trust income

instead of distributing it. Preston claims that the withholding of Trust income

“causes [him] damages equal to the distributions that were wrongly withheld.” But

the Trusts do not give Preston any right to override the Trustee’s decisions about

how to handle the trust income. And, as he remains the beneficial owner of the

interest income accumulated in the Trusts, he is not entitled to a damages award that

would amount to a double recovery.

             3.     No evidence that Ribosome aided and abetted

      Preston claims that Ribosome aided and abetted Elaine’s decision to

accumulate the Trust income by making distributions to the Harrier and Falcon

Trusts, as their legal owners, rather than directly to him, as the Trusts’ beneficiary.

The Texas Supreme Court observed that, if it were to recognize a cause of action for

aiding and abetting tortious conduct, “[c]ourts should look to the nature of the

wrongful act, kind and amount of assistance, relation to the actor, defendant’s

presence while the wrongful act was committed, and defendant’s state of mind.”

First U. Pentecostal, 514 S.W.3d at 225 (citing Juhl v. Airington, 936 S.W.2d 640,

644–45 (Tex. 1996)). Such a claim’s purpose would be “to deter antisocial or

dangerous behavior.” Juhl, 936 S.W.2d at 644; see also W. Fork Advisors, LLC v.

SunGard Consulting Servs., LLC, 437 S.W.3d 917, 921 (Tex. App.—Dallas 2014,


                                          18
pet. denied) (aiding and abetting claim requires actor, with unlawful intent, to give

substantial assistance and encouragement to wrongdoer in tortious act).

       Here, the allegedly wrongful conduct—Ribosome’s distribution of proceeds

to the Trusts, as limited partners, rather than to Preston, their beneficiary—is

required by Ribosome’s partnership agreement. Ribosome generally distributes

profits to its limited partners according to the terms of its partnership agreement. It

cannot deviate from those terms without direction from its general partner and the

limited partner that is legally entitled to receive the share of profits. When the

Trustee expressly revoked any authorization that may previously have existed for

Ribosome to distribute the proceeds it owed to the Trusts directly to the Trusts’

beneficiary, Ribosome lost any authority to distribute the Trusts’ profits directly to

Preston. No evidence shows that Ribosome gave the Trustee substantial assistance

and encouragement to revoke that authorization, or that Ribosome could have acted

differently had it believed the Trustee acted wrongfully by doing so. Because

Ribosome’s distribution of profits in compliance with its partnership agreement does

not constitute conduct in furtherance of a breach of fiduciary duty, the trial court

properly granted summary judgment on Preston’s aiding and abetting claim.

III.   Claim for Accounting

       Finally, Preston argues that the trial court erred in dismissing his common-

law claim for accounting based on Ribosome’s traditional summary-judgment issue.


                                          19
An accounting is available when (1) the parties have a contractual or fiduciary

relationship; (2) the facts and accounts are “so complex [that] adequate relief may

not be obtained at law”; and (3) standard discovery procedures cannot provide

adequate relief at law. T.F.W. Mgmt. v. Westwood Shores Prop. Owners Ass’n, 79

S.W.3d 712, 717–18 (Tex. App.—Houston [14th Dist.] 2002, pet. denied).

      In its summary-judgment motion, Ribosome argued that its partnership

agreement identified any rights Preston had as to Ribosome, Ribosome had provided

him with all the financial information that he was entitled to under the partnership

agreement, and the agreement did not entitle Preston to a common-law accounting.

Ribosome’s partnership agreement identifies the rights and duties of the limited

partners and their duties in relation to the partnership. With respect to financial

information, the partnership agreement gives the limited partner the right to inspect

Ribosome’s books and records at reasonable times. It does not, however, include any

additional right to an accounting, and Preston does not identify any other source that

gives him that right. See TEX. BUS. ORGS. CODE § 153.105 (explaining that rights of

limited partners may be created only by certificate of formation, partnership

agreement, other statutory provisions, or other limited partnership provisions).5


5
      Ribosome is a limited partnership formed under the laws of the British Virgin
      Islands. Ribosome claims that it is governed by British Virgin Islands law but does
      not provide a choice-of-law analysis. Because the parties do not argue otherwise,
      we assume the application of either British Virgin Islands law or Texas law to this
      issue would result in the same outcome, making a choice-of-law analysis
                                          20
      Preston further argues that Ribosome owes him a fiduciary duty to provide an

accounting because of his limited partner status. He cites no authority for this

argument and the Business Organizations Code makes clear any fiduciary powers or

liabilities belong not to the limited partnership, but to its general partner. See id.

§ 153.152. Because the partnership agreement does not require Ribosome to comply

with a limited partner’s demand for an accounting and Ribosome does not owe

Preston an independent duty that would give rise to a right to an accounting, the trial

court did not err in granting summary judgment on this claim.

                                  CONCLUSION

      We affirm the judgment of the trial court.




                                                Gordon Goodman
                                               Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.




      unnecessary. See St. Paul Surplus Lines Ins. Co. v. Geo Pipe Co., 25 S.W.3d 900,
      902–03 n.2 (Tex. App.—Houston [1st Dist.] 2000, no pet.).

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