Dissenting opinion issued March 18, 2014




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                          ————————————
                            NO. 01-12-00798-CV
                          ———————————
                     ALLIANTGROUP, L.P., Appellant
                                      V.
      KARIM SOLANJI, ZEESHAN MAKHANI, SAQIB DHANANI,
    PARADIGM NATIONAL CONSULTANTS, L.P., PARADIGM SMD
     GROUP, L.L.C., AND PARADIGM PARTNERS, L.P., Appellees



                  On Appeal from the 125th District Court
                           Harris County, Texas
                     Trial Court Case No. 2009-62874


                          DISSENTING OPINION

     Alliantgroup alleges that its clients were knowingly solicited by its former

employees and their company—the appellees—in breach of a settlement

agreement. Alliantgroup also contends that those actions constituted tortious
interference with its contractual relationships. The majority affirms a no-evidence

summary judgment dismissing both claims, based entirely on the reasoning that

Alliantgroup adduced no evidence to establish the existence of a “client”

relationship with any entity solicited by the appellees at the time they were

solicited.

       Because I disagree with the majority’s novel interpretation of Alliantgroup’s

agreements with its clients, which in turn has been used to reach the erroneous

conclusion that Alliantgroup presented no evidence that any relevant client

relationships existed, I respectfully dissent.

       The majority holds—as a matter of law—that neither MGS nor Acutec

qualified as a “client of Alliantgroup” for purposes of the settlement agreement

because they were merely former clients. The panel majority thus limits the

definition of the word “client” by reasoning that at the moment a professional

concludes the main object of an engagement, if there is no other pending work, the

client legally transforms into a former client. I do not agree this is the only

meaning the word “client” can bear in the context of the settlement agreement, nor

do I agree that the law requires the settlement agreement to be read in that way.

       The majority relies on a contractual termination provision in the agreements

between Alliantgroup and its clients to extrapolate an intention by those parties

that their agreements, and therefore any client relationships between them, would

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be definitively terminated immediately upon any payment of fees. I cannot join in

that strained and implausible interpretation of the agreements between

Alliantgroup and its clients, which preexisted the settlement agreement with

Paradigm. Nor can I join the reasoning by which the majority attempts to bolster its

interpretation by characterizing the Alliantgroup-Paradigm settlement agreement as

an overbroad, unenforceable covenant not to compete. As the majority

acknowledges, the appellees have never made this argument, either in the trial

court or on appeal. And whatever public policy or legal obstacles may prevent

Alliantgroup from enforcing a particular aspect of the settlement agreement with

Paradigm—matters which were not argued in the trial court as grounds for

summary judgment—I would not use those considerations as the majority does,

sua sponte, to justify a conclusion that Alliantgroup presented no evidence of a

client relationship with any entity solicited by Paradigm, and therefore no evidence

of a breach of the Alliantgroup–Paradigm settlement agreement, which was the

ground actually argued.

      There is no dispute that MGS and Acutec have been clients of Alliantgroup.

The response to the motion for summary judgment attached evidence which

reflected that each of them was solicited on behalf of Paradigm. For example,

Alliantgroup’s summary-judgment evidence included email correspondence

between Paradigm and the treasurer of Acutec. The Paradigm representative,

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apparently following up on a phone conversation, wrote to the Acutec treasurer:

“Thank you for your time and I am sorry that we cannot help with anything right

now. I am also sorry that you had a bad experience before with a competitor.” The

Acutec treasurer responded by email: “The experience was not due to

Alliantgroup.”

      In support of the particular allegation that MGS and Acutec were its current

clients at the time of the challenged solicitations, Alliantgroup produced evidence

of contracts under which it could still owe duties to both companies in the event of

a future IRS audit. Without a more restrictive definition for the term “clients”

within the settlement agreement, I conclude that Alliantgroup’s evidence about its

relationships with MGS and Acutec is “more than a scintilla of probative evidence

to raise a genuine issue of material fact” as to whether they were “clients of

Alliantgroup” for purposes of the settlement agreement. King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing TEX. R. CIV. P. 166a(i)).

      I turn now to address the other arguments that the appellees advanced in the

trial court to support their motion for summary judgment. The motion broadly

alleged a lack of evidence of a breach of the settlement agreement. But unlike the

majority’s analysis, the substance of the appellees’ argument did not hinge on the

definition of “client.” Instead, as discussed below, it focused on the alleged lack of

evidence of the appellees’ actual knowledge of the current status of any

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relationship between Alliantgroup and the appellees’ solicitation prospects at the

time they were contacted.

        With respect to the contract claim, the motion alleged a lack of evidence

that:

   • “any of the Defendants contacted MGS”;
   • “any of the Defendants actually knew MGS and/or Acutec to be a client of
     Alliantgroup at the time that any of the Defendants initiated any such contact
     with either or both or those entities”; or
   • “the Individual Defendants and Paradigm ‘knowingly initiated’ any such
     contact.”
In fact, Alliantgroup produced some evidence on all of these points. The evidence

showed that appellees Solanji, Makhani, and Dhanani are all former Alliantgroup

employees who are now affiliated with appellee Paradigm. That is circumstantial

evidence creating a fact issue as to whether knowledge held by one may have been

shared with the others. The evidence showed that Makhani rendered services to

Acutec while employed by Alliantgroup (in fact he drafted the Acutec tax-credit

study), and that Solanji rendered services to MGS while employed by Alliantgroup

(he was the project manager in charge of the MGS study).

        Finally, there was some evidence adduced to show that Paradigm contacted

both Acutec and MGS. The appellees objected in the trial court to the admissibility

of such evidence with respect to any MGS contact, but even if we could not

consider the evidence of the MGS contact, the evidence of the Acutec contact

precludes a final summary judgment in the appellees’ favor.
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      With respect to the tortious interference claim, in addition to alleging the

absence of any “evidence to show any contractual relationship that is subject to

interference” the motion alleged a lack of evidence:

   • of “any act of willful and intentional interference with that relationship by
     any of the Defendants”;
   • that “it either sustained any actual damages or losses as a result of the
     purported tortious conduct by Defendants”
   • “nor that any such interference was a proximate cause of any such
     damages.”

But Alliantgroup produced evidence that it was disparaged in the course of

Paradigm’s solicitation of Acutec, with the Paradigm representative saying that

“Alliantgroup basically did not know what they were doing” and that “a lot of

companies that used them have been audited by the IRS.” The settlement

agreement stipulated that such communications, directed toward a client of

Alliantgroup, would be harmful. That stipulation is some evidence that the

communications were damaging to Alliantgroup. To the extent the appellees

contend that the settlement agreement’s liquidated damages provision is an

unenforceable penalty, the argument that Alliantgroup may not have been damaged

in the amount specified as liquidated contractual damages does not imply that

Alliantgroup was not damaged at all.

      In sum, I would reverse the summary judgment of the trial court and remand

this case for further proceedings. “[A] no-evidence summary judgment is

improperly granted if the respondent brings forth more than a scintilla of probative
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evidence to raise a genuine issue of material fact.” King Ranch, 118 S.W.3d at 751.

It very well may be that there are insurmountable factual and legal obstacles to any

ultimate recovery on Alliantgroup’s claims. But Paradigm has not yet carried its

burden to justify what amounts to a “pretrial directed verdict” on the claims. Id. I

would hold that the case should not have been dismissed for the reasons advanced

in the motion filed in the trial court, or even for the new reasons relied upon by the

majority to affirm.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Keyes, Higley, and Massengale.

Justice Massengale, dissenting.




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