Affirmed and Memorandum Opinion filed December 22, 2016.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-15-00134-CV


                  AGAR CORPORATION, INC., Appellant

                                       V.
 ELECTRO CIRCUITS INTERNATIONAL, LLC AND SURESH PARIKH,
                        Appellees


                   On Appeal from the 11th District Court
                               Harris, Texas
                    Trial Court Cause No. 2008-20480A


                MEMORANDUM                     OPINION
      Agar Corporation, Inc. appeals two orders in which the trial court (1)
granted summary judgment in favor of appellees Electro Circuits International,
LLC and Suresh Parikh on Agar’s claims against them; and (2) awarded attorney’s
fees to Electro Circuits and Parikh under the Texas Theft Liability Act. See Tex.
Civ. Prac. & Rem. Code Ann. § 134.001-.005 (Vernon 2011 & Supp. 2016).
Electro Circuits and Parikh cross-appeal to challenge the trial court’s order
granting summary judgment in favor of Agar on their claim for additional
attorney’s fees based upon Agar’s asserted breach of a release. We affirm.

                                          BACKGROUND

          This commercial dispute involves the alleged misappropriation of trade
secrets relating to measurement and control devices that Agar designs,
manufactures, and sells for use in the oil and gas industry. Agar contends two
former employees, Sanjay Shah and Pandurang Nayak, conspired with many other
persons and entities to obtain and use its trade secrets to sell knockoff Agar
devices.

          Agar sued more than a dozen individuals and entities in April 2008
including the two former Agar employees; it added Electro Circuits and Parikh as
defendants to the existing lawsuit in a sixth amended petition filed in November
2011. That lawsuit was docketed as Cause No. 2008-20480.

          In its seventh amended petition filed on February 10, 2012, Agar asserted
claims against Electro Circuits and Parikh for tortious interference, breach of
fiduciary duty, aiding and abetting breach of fiduciary duty, fraud, fraud by non-
disclosure, misappropriation of trade secrets, violations of the Texas Theft
Liability Act, conversion, and civil conspiracy. Agar sought actual and exemplary
damages.1 Electro Circuits and Parikh answered and filed a counterclaim against
Agar seeking attorney’s fees based upon (1) the Texas Theft Liability Act; and (2)
Agar’s asserted breach of a “Mutual Release and Settlement Agreement” dated
December 20, 2009.

          Electro Circuits and Parikh filed a no-evidence motion for summary


          1
              Agar asserted additional claims against defendants other than Electro Circuits and
Parikh.

                                                 2
judgment under Texas Rule of Civil Procedure 166a(i) in September 2013. In the
motion, they (1) identified each element of each claim asserted against them; and
(2) contended that Agar lacked evidence on all specified elements of all claims.
They also contended: “[T]o prevail on a civil conspiracy claim[,] the plaintiff must
show that the defendant was liable for some underlying tort.” Electro Circuits and
Parikh combined their no-evidence motion with a motion for summary judgment
under Texas Rule 166a(b); among other grounds, they sought a traditional
summary judgment based on their affirmative defenses of release and the statute of
limitations.

      In its response to the combined motion, Agar contended that summary
judgment was not warranted because (1) Electro Circuits and Parikh “are liable as
co-conspirators of Defendants Sanjay Shah and Pandurang Nayak and their
respective companies;” (2) specific portions of evidence attached to the response
raise fact questions regarding the liability of Electro Circuits and Parikh as co-
conspirators; (3) unspecified evidence attached to separate summary judgment
motions and responses filed by Agar in relation to other defendants “clearly
show[s] there was a fact issue on each of [Agar’s] claims that it has also asserted
against” Electro Circuits and Parikh; (4) Electro Circuits and Parikh were not
parties to or third-party beneficiaries of the release agreement they invoked, so
they could not rely on it to obtain attorney’s fees; and (5) limitations does not bar
Agar’s claims against Electro Circuits and Parikh because the discovery rule tolls
accrual of those claims.

      The trial court signed an order on October 10, 2013, in which it granted the
combined summary judgment motion in its entirety.           After Agar moved for
reconsideration, the trial court signed an order on December 20, 2013, in which it
(1) denied the no-evidence motion for summary judgment as to Agar’s claim for

                                         3
civil conspiracy; (2) granted the no-evidence motion in favor of Electro Circuits
and Parikh “as to all other claims [by Agar] alleging direct liability;” and (3)
granted “a traditional summary judgment on Plaintiff’s claims against Defendants
Electro Circuits International, LLC and Suresh Parikh only on the limited basis as
to [their] . . . affirmative defense of statute of limitations.” The trial court’s order
states as follows:

       The Court further finds the last overt act for limitations purposes
       regarding the conspiracy claim to be on July 3, 2009. Further,
       although the reasoning for the holding seems suspect, the cases from
       the Houston Court of Appeals clearly hold that the two year statute of
       limitations applies to conspiracy claims independent of whether the
       underlying tort has a longer limitations period. Since there is no
       evidence of any overt act within the two years prior to Electro Circuits
       and Suresh Parikh being named as Defendants, the Court feels
       compelled to grant the motion.

With respect to the traditional motion, the order also states as follows: “Plaintiff’s
claims against Defendants Electro Circuits International, LLC and Suresh Parikh
are dismissed solely on the basis of the affirmative defense of statute of
limitations.”2

       On April 9, 2014, the trial court signed an order granting a motion by
Electro Circuits and Parikh to sever the claims among Agar, Electro Circuits, and
Parikh from the original Cause No. 2008-20480. The order states Agar “was
unopposed to the Motion . . .” and reflects at the bottom that Agar’s counsel
approved the severance order “as to form only. . . .” The December 20, 2013 order
became part of the severed case under Cause No. 2008-20480-A.                     No final
judgment existed in the severed case at this point because Electro Circuits and

       2
          Agar filed an eighth amended petition in February 2014; by that time, all claims
asserted against Electro Circuits and Parikh already had been disposed of by the December 20,
2013 order.

                                             4
Parikh still had unresolved claims against Agar for attorney’s fees.

      Following severance, Electro Circuits and Parikh filed a second motion for
summary judgment in June 2014 on their claims against Agar for attorney’s fees.
They sought traditional summary judgment in their favor on grounds that (1) they
are prevailing parties under the Texas Theft Liability Act; and (2) they are entitled
to fees because Agar breached the release when it sued Electro Circuits and Parikh.
They supported this motion with an attorney’s fees affidavit signed by attorney
Ken Krock, which included detailed time sheets reflecting hours expended and
billable rates for the attorneys representing Electro Circuits and Parikh. According
to this affidavit, Electro Circuits and Parikh incurred $79,167.50 in fees in
connection with Agar’s claims. Of this amount, the affiant attributed $64,307.44
to the Texas Theft Liability Act claim. The trial court denied this motion in an
order signed on August 11, 2014.

      For its part, Agar filed a combined traditional and no-evidence motion for
summary judgment in the severed case in August 2014 (and again in September
2014) on the unresolved claims for attorney’s fees. The trial court also denied this
motion on November 5, 2014.

      On November 6, 2014, the trial court signed an order vacating its prior order
denying the summary judgment motion of Electro Circuits and Parikh on
attorney’s fees.

      The trial court signed a “Modified Order Constituting Final Judgment” in the
severed case on January 20, 2015, in which it awarded $64,307.44 in attorney’s
fees to Electro Circuits and Parikh as prevailing parties under the Texas Theft
Liability Act; the order conditionally awarded additional fees in the event of an
appeal or a petition for review. The modified order denied any fee award in
connection with the release. The modified order also granted Agar’s motion for
                                          5
no-evidence and traditional summary judgment in part with respect to the claim for
attorney’s fees arising from the release. Taken together with the December 20,
2013 order, the January 20, 2015 order disposed of all parties and claims in the
severed action docketed as Cause No. 2008-20480-A.

      Agar appeals from the trial court’s summary judgment order in favor of
Electro Circuits and Parikh signed on December 20, 2013; Agar also appeals from
the modified order signed on January 20, 2015, to challenge the award of
attorney’s fees to Electro Circuits and Parikh as prevailing parties under the Texas
Theft Liability Act. Electro Circuits and Parikh cross-appeal from the January 20,
2015 modified order to challenge the denial of additional attorney’s fees to them
based on Agar’s asserted breach of the release.

                              STANDARDS OF REVIEW

      We review the trial court’s grant of summary judgment de novo. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

      In reviewing either a no-evidence or traditional summary judgment motion,
we must take as true all evidence favorable to the non-movant and draw every
reasonable inference and resolve all doubts in favor of the non-movant. M.D.
Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23-24 (Tex. 2000) (per
curiam); Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 653, 655 (Tex. App.—Houston
[14th Dist.] 2008, pet. denied).

      A no-evidence motion for summary judgment is essentially a motion for a
pretrial directed verdict. Tex. R. Civ. P. 166a(i); Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). After an adequate time for discovery, a party
without the burden of proof may, without presenting evidence, seek summary
judgment on the ground that there is no evidence to support one or more essential


                                         6
elements of the non-movant’s claim or defense. Tex. R. Civ. P. 166a(i). The non-
movant is required to present evidence raising a genuine issue of material fact
supporting each element contested in the motion. Id.; Timpte Indus., 286 S.W.3d
at 310.

      The party moving for a traditional summary judgment must show that no
material fact issue exists and that it is entitled to summary judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Willrich, 28 S.W.3d at 23. To be entitled to
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. Am. Tobacco Co. v. Grinnell,
951 S.W.2d 420, 425 (Tex. 1997). Evidence is conclusive only if reasonable
people could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d
802, 816 (Tex. 2005). Once the defendant produces sufficient evidence to establish
the right to summary judgment, the burden shifts to the plaintiff to come forward
with competent controverting evidence raising a genuine issue of material fact.
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

                                     ANALYSIS

I.    Summary Judgment in Favor of Electro Circuits and Parikh

      Agar’s appellate briefing challenges the trial court’s summary judgment
orders on the following grounds.

      1. The trial court erred in granting a limitations-based traditional
         summary judgment because the summary judgment evidence raises
         a fact issue under the discovery rule.
      2. Electro Circuits and Parikh cannot recover attorney’s fees as
         prevailing parties under the Texas Theft Liability Act because the
         trial court erroneously granted traditional summary judgment on
         limitations.

                                         7
      3. Electro Circuits and Parikh cannot recover attorney’s fees as
         prevailing parties under the Texas Theft Liability Act by prevailing
         on an affirmative defense.

      4. Electro Circuits and Parikh cannot recover attorney’s fees as
         prevailing parties under the Texas Theft Liability Act because they
         did not obtain tangible relief on the merits and a statute of
         limitations defense does not directly address the merits of a claim.

      5. The fee affidavit is deficient and cannot support a fee award.

      6. The limitations period for civil conspiracy should be based on the
         period applicable to the underlying tort.

Agar does not challenge the trial court’s grant of a no-evidence summary judgment
“as to all other claims alleging direct liability” against Electro Circuits and Parikh.
As its arguments are postured on appeal, Agar pursues only a single civil
conspiracy claim against Electro Circuits and Parikh.

      A.     Conspiracy

      A civil conspiracy generally is defined as “a combination of two or more
persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by
unlawful means . . . .” Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (citing
Carroll v. Timmers Chevrolet, Inc., 592 S.W.2d 922, 925 (Tex. 1979)).

      Civil conspiracy is considered a “derivative tort” because the defendant’s
conspiracy liability depends on participation in some underlying tort for which the
plaintiff seeks to hold the defendant liable. See id.; Baty v. ProTech Ins. Agency,
63 S.W.3d 841, 864 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

       As Agar correctly notes in its brief, “[C]onspiracy is not a stand[-]alone
cause of action.”     Agar also noted in its summary judgment response that
“conspiracy [is] . . . not a cause of action but a theory of liability . . . .” Agar does
not challenge on appeal the grant of a no-evidence summary judgment on all

                                           8
claims alleging direct liability against Electro Circuits and Parikh.          Agar
nonetheless contends the necessary underlying torts exist because Electro Circuits
and Parikh conspired with other persons and entities who committed tortious acts.

      We assume solely for argument’s sake that Agar can pursue a viable civil
conspiracy claim against Electro Circuits and Parikh under these circumstances.
Even with the benefit of this assumption, we conclude that summary judgment was
proper with respect to conspiracy based upon limitations.

             1. Two-year statute of limitations

      We first address Agar’s sixth issue, which raises a threshold argument
regarding the length of the limitations period.

      Agar contends that the operative limitations period for a conspiracy claim
should be based on the limitations period applicable to the underlying tort. As
Agar acknowledges, this court already has held that a two-year limitations period
governs conspiracy claims even if a longer statute-of-limitations period applies to
the underlying tort. See Navarro v. Thornton, 316 S.W.3d 715, 719 (Tex. App.—
Houston [14th Dist.] 2010, no pet.); Mayes v. Stewart, 11 S.W.3d 440, 453 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied); see also Tex. Civ. Prac. & Rem.
Code Ann. § 16.003 (Vernon 2002 & Supp. 2016). As Agar also acknowledges,
neither the Supreme Court of Texas nor this court sitting en banc has reached a
contrary conclusion, and there has been no intervening, material change in the
statutory law that would affect these prior panel decisions. Therefore, this panel is
bound by prior panel holdings on this point. See Chase Home Fin., L.L.C. v. Cal.
W. Reconveyance Corp., 309 S.W.3d 619, 630 (Tex. App.—Houston [14th Dist.]
2010, no pet.).

      We overrule Agar’s sixth issue.


                                          9
              2. Propriety of granting traditional summary judgment

       In connection with its first issue, Agar assails the trial court’s grant of
traditional summary judgment on grounds that Agar’s civil conspiracy claim is
barred by the two-year statute of limitations.

       Agar initially sued more than a dozen defendants in April 2008 in
connection with the defendants’ alleged misappropriation of Agar’s proprietary
information and use of that information to create knock-off products for sale to
Agar’s customers. Agar added alleged co-conspirators Electro Circuits and Parikh
as defendants to the existing lawsuit in November 2011 — more than three years
after Agar initially filed suit.

       The statute of limitations begins to run when a claim accrues. Murray v. San
Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990). A claim generally accrues
when a wrongful act causes injury. Id. Intermediate appellate courts in Texas
have addressed an exception to the general accrual rule with respect to a continuing
tort; under this exception, when wrongful conduct is repeated over time, each
wrongful act can create a separate claim that does not accrue until the conduct
ends. See, e.g., Horseshoe Bay Resort Sales Co. v. Lake Lyndon B. Johnson
Improvement Corp., 53 S.W.3d 799, 81 (Tex. App.—Austin 2001, pet. denied);
Upjohn Co. v. Freeman, 885 S.W.2d 538, 542 (Tex. App.—Dallas 1994, writ
denied). “We note that the continuing-tort doctrine has been addressed by several
courts of appeals but not adopted by the Texas Supreme Court.” Markwardt v.
Tex. Indus., Inc., 325 S.W.3d 876, 893 (Tex. App.—Houston [14th Dist.] 2010, no
pet.); see also Creditwatch Inc. v. Jackson, 157 S.W.3d 814, 816 n.8 (Tex. 2005).

       The trial court granted a limitations-based summary judgment in favor of
Electro Circuits and Parikh on the conspiracy claim after concluding that “the last
overt act for limitations purposes regarding the conspiracy claim [occurred] . . . on
                                         10
July 3, 2009.” This date corresponds to a purchase order showing the sale in Texas
of alleged counterfeit devices by former Agar employee Pandurang Nayak and an
entity named “JAK Instruments” to Wilbur Eagle Technology in India; the
purchase order on its face makes no reference to Electro Circuits or Parikh. The
trial court further concluded as follows: “Since there is no evidence of any overt
act within the two years prior to Electro Circuits and Suresh Parikh being named as
Defendants, the Court feels compelled to grant the motion.”

      Agar contends that “the last overt act in furtherance of the conspiracy”
occurred on July 3, 2009. In its summary judgment response, Agar argued that
“JAK Instruments was still [s]elling parts to Wilbur Eagle Technology containing
[Agar’s] . . . trade secrets as late as July 3, 2009.” According to Agar’s appellate
briefing, the purchase order created on this date reflects “the sale of goods
including [Agar’s] . . . stolen trade secrets, which was a ‘continued invasion of the
plaintiff’s interest causing loss and damage.’” Agar contends that the district court
erred in granting summary judgment because (1) Agar did not learn of the July
2009 purchase order until it was produced in discovery on March 30, 2011; and (2)
limitations therefore began running in March 2011 with respect to its claim against
Electro Circuits and Parikh for conspiring with others to steal its trade secrets.
Based upon a March 2011 accrual date, Agar contends that it timely sued Electro
Circuits and Parikh in November 2011 even under a two-year statute of limitations.

      Agar’s contentions regarding “the last overt act” and a “continued invasion”
of its interest in its trade secrets throughout the alleged conspiracy are grounded on
this statement in Mayes: “‘[U]nder civil conspiracy, each continued invasion of
the plaintiff’s interest causing loss and damage in a conspiracy case is treated as an
independent element for limitations purposes and the two year statute of limitations
begins to run when each independent element arises.’” Mayes, 11 S.W.3d at 453

                                         11
(quoting Cathey v. First City Bank, 758 S.W.2d 818, 822 (Tex. App.—Corpus
Christi 1988, writ denied)).      Neither Mayes nor Cathey involved claims of a
conspiracy to steal trade secrets.

       Despite Agar’s references to “the last overt act” and a “continued invasion”
of its interests by these alleged conspirators, Agar nonetheless disclaims any intent
to invoke a continuing tort theory to delay accrual of its conspiracy claim.
According to Agar, it “has simply relied on the discovery rule solely, but with
respect to its conspiracy claims.”       In Agar’s seventh amended petition, Agar
alleges that it did not know “the nature of its injury and the likelihood it was
caused by the wrongful acts of” Electro Circuits and Parikh until November 2011.

       Electro Circuits and Parikh argue that Agar cannot invoke the discovery rule
to postpone accrual. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344 n.3
(Tex. 1992) (“Generally . . . ‘limitations begin to run when the fact of injury is
known,’ not when the alleged wrongdoers are identified.”) (quoting Moreno v.
Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990)). According to Electro
Circuits and Parikh, “[T]he latest date on which the alleged harm wrongfully
caused by the acts of another possibly could have been discovered is the day on
which [Agar] . . . filed its lawsuit, April 3, 2008.” Electro Circuits and Parikh also
contend that the continuing tort doctrine does not apply “where, as here, the
alleged conspiracy resulted in a single, distinct injury . . . .”

       Our analysis of the accrual date for Agar’s conspiracy claim cannot ignore
that claim’s posture on appeal. We must assess accrual for a civil conspiracy claim
untethered to any underlying torts committed by Electro Circuits or Parikh. Given
the unchallenged no-evidence summary judgment, Electro Circuits and Parikh
individually committed no underlying torts.

       Notwithstanding its disclaimer, Agar’s arguments relying on a “last overt
                                            12
act” and a “continued invasion” of its rights plainly invoke the continuing tort
doctrine and plainly invite us to apply that doctrine to its conspiracy claim against
Electro Circuits and Parikh predicated on underlying conduct by others. We take
Agar at its word when it invokes these concepts, and when it characterizes the
injurious “continued invasion” at issue as “the sale of goods including [Agar’s] . . .
stolen trade secrets.” Agar discovered this injury sufficiently to sue based upon the
alleged theft of its trade secrets in 2008 — more than three years before it added
Electro Circuits and Parikh to the suit.

      “The limitations exception in the continuing-tort doctrine is rooted in a
plaintiff’s inability to know that the ongoing conduct is causing . . . injury; thus,
when the plaintiff discovers [its] . . . injury, the rationale for extending the accrual
date no longer applies . . . .” Walston v. Stewart, No. 10-05-00135-CV, 2005 WL
3072919, at *1 (Tex. App.—Waco Nov. 16, 2005, pet. denied) (per curiam) (citing
Upjohn, 885 S.W.2d at 544). “[I]f the alleged continuing tort causes a single,
distinct injury–rather than a continuing injury–the continuing-tort doctrine does not
apply.” Id. (citing Dickson, 960 S.W.2d at 851; and Upjohn, 885 S.W.2d at 543);
see also Rogers v. Ardella Veigel Inter Vivos Trust No. 2, 162 S.W.3d 281, 290
(Tex. App.—Amarillo 2005, pet. denied) (“[C]are must be taken to distinguish
between 1) repeated injury proximately caused by repetitive wrongful or [tortious]
. . . acts and 2) continuing injury arising from one wrongful act. While the former
evinces a continuing tort, the latter does not.”).

      Given the nature of the “continued invasion” asserted by Agar, which
focuses solely on “the sale of goods including [Agar’s] . . . stolen trade secrets,”
Agar cannot avoid the limitations bar by (1) invoking the continuing tort doctrine
to delay accrual of its conspiracy claim against Electro Circuits and Parikh, and
then (2) tacking on a discovery rule argument to delay accrual still longer. The

                                           13
first step fails. See Rogers, 162 S.W.3d at 290 (“[A] continuing tort does not arise
from one’s copyrighting a song that another wrote and then repeatedly selling the
song and reaping profit from each sale. While it may be said that the injury
continues with each sale and receipt of a royalty, the act that caused the continuing
injury was the one act of copyrighting the song.”); cf. Tex. Civ. Prac. & Rem. Code
Ann. § 16.010(b) (Vernon 2002) (“A misappropriation of trade secrets that
continues over time is a single cause of action and the limitations period . . . begins
running without regard to whether the misappropriation is a single or continuing
act.”). Agar does not contend that the discovery rule itself would extend accrual
long enough to make its conspiracy claim against Electro Circuits and Parikh
timely without reliance upon the additional delay afforded by its continuous tort
argument.

      We overrule Agar’s first issue.

      B.     Attorney’s Fees Under the Texas Theft Liability Act

      Agar makes three related arguments as it challenges the award of attorney’s
fees to Electro Circuits and Parikh under section 134.005. Agar also attacks the
affidavit supporting this fee award.

      First, Agar contends the attorney’s fee award is erroneous because the trial
court erred in granting summary judgment on limitations grounds; in turn,
according to Agar, this means Electro Circuits and Parikh cannot be “a person who
prevails in a suit under this chapter” for purposes of obtaining attorney’s fees under
section 134.005.     Having already rejected Agar’s challenge to the grant of
summary judgment on limitations, we reject this contention as well.

      Second, Agar contends that Electro Circuits and Parikh “were not prevailing
parties under the TTLA by merely avoiding liability under a statute of limitations


                                          14
defense.” Third, Agar contends this statute “does not allow a defendant avoiding
liability to recover attorney’s fees” because a party must recover damages to
“prevail[]” under section 134.005. We address these two contentions together.

      Agar’s second and third contentions fail because Agar erroneously relies on
cases addressing a plaintiff’s inability to recover attorney’s fees under the Texas
Theft Liability Act in the absence of a monetary recovery. See, e.g., Kellmann v.
Workstation Integrations, Inc., 332 S.W.3d 679, 686-87 (Tex. App.—Houston
[14th Dist.] 2010, no pet.); Glattly v. Air Starter Components, Inc., 332 S.W.3d
620, 641 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).

      The circumstances differ here because they involve defendants who
successfully opposed a plaintiff’s Texas Theft Liability Act claim against them. A
defendant who defeats a Texas Theft Liability Act claim is a prevailing party and
can recover attorney’s fees even in the absence of a recovery for actual damages by
the defendant. Air Routing Int’l Corp. (Canada) v. Britannia Airways, Ltd., 150
S.W.3d 682, 686 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (“The Theft Act
is unusual in Texas law in that it requires the court to award attorney’s fees to a
party who successfully defends a Theft Act claim, without any prerequisite that the
claim is found to be groundless, frivolous, or brought in bad faith.”); see also
Arrow Marble, LLC v. Estate of Killion, 441 S.W.3d 702, 706 (Tex. App.—
Houston [1st Dist.] 2014, no pet.) (“Equicap’s status defending against a TTLA
claim does not prevent recovery of attorney’s fees.”).

      That leaves Agar’s challenges to the Krock affidavit as the only remaining
route by which it can attack the award of attorney’s fees to Electro Circuits and
Parikh under section 134.005.

      Agar contends that Krock’s affidavit is deficient because it does not state
that the facts contained in it are true or that perjury can be assigned upon it. Agar
                                         15
does not otherwise challenge the affidavit’s sufficiency or contents. Agar further
contends that a counter affidavit signed by Dylan Russell raises fact questions
regarding the reasonableness and necessity of attorney’s fees under section
134.005.

      We reject Agar’s challenge to the form of Krock’s signed affidavit because
the affidavit states it is based on Krock’s personal knowledge and recites that he
made the statements contained therein “upon his oath” after being duly sworn by a
notary. In turn, the notary signed and notarized the affidavit. This suffices. See
Ford Motor Co. v. Leggat, 904 S.W.2d 643, 645-46 (Tex. 1995) (orig.
proceeding); see also Tex. Gov’t Code Ann. §312.011(1) (Vernon 2013).

      Lastly, Agar contends it raised a fact issue on the reasonableness and
necessity of attorney’s fees by filing a controverting affidavit.      The Russell
affidavit states as follows:

      I have reviewed the summary of work listed as Exhibit M.1 to the
      Defendants’ Motion for Final Summary Judgment and the related
      affidavit of Mr. Krock, which is Defendant’s Exhibit M. It is my
      opinion that the fees allegedly incurred by the Defendants’ firm, in the
      amount of $79,167.50, relating to all fees incurred through June 30[,]
      2014, are not reasonable, necessary, equitable, or just. Additionally,
      the amount of $64,307.44 in attorney’s fees related to purportedly
      intertwined fees relating to the Texas Theft Liability Act (“TTLA”)
      claim is also not reasonable, necessary, equitable, or just.

Standing alone, these conclusory assertions do not raise a fact issue regarding the
reasonableness and necessity of the fees incurred by Electro Circuits and Parikh.
See, e.g., Cammack the Cook, L.L.C. v. Eastburn, 296 S.W.3d 884, 894-95 (Tex.
App.—Texarkana 2009, pet. denied).

      The stated supporting rationale for these conclusions does not withstand
scrutiny. The Russell affidavit asserts that defense fees claimed in connection with

                                        16
the Texas Theft Liability Act are not reasonable and necessary (1) because Electro
Circuits and Parikh were sued in November 2011 but did not file their summary
judgment motion until September 2013; and (2) “in light of applicable case law
and legislative history regarding the TTLA suggesting that only plaintiffs, not
defendants, that recover damages may recover attorney’s fees under the TTLA . . .
.”

      The first stated rationale is insufficient; it ignores Rule 166a(i)’s requirement
that an “adequate time for discovery” must pass before a no-evidence motion can
be filed. The second stated rationale also is insufficient because it is neither a
statement of fact nor a statement of opinion about fact. It is, at most, a pure legal
conclusion regarding the Texas Theft Liability Act’s provision for recovery of
attorney’s fees. See, e.g., Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex.
1984) (“A legal conclusion in an affidavit is insufficient to raise an issue of fact in
response to a motion for summary judgment . . . .”). Moreover, it is a pure legal
conclusion contrary to this court’s precedent.        See Air Routing Int’l Corp.
(Canada), 150 S.W.3d at 686.

      We overrule Agar’s second, third, fourth, and fifth issues.

II.   Summary Judgment in Favor of Agar on the Release

      Electro Circuits and Parikh cross-appeal to challenge the January 20, 2015
summary judgment order insofar as it denies recovery of additional attorney’s fees
based on Agar’s asserted breach of the “Mutual Release and Settlement
Agreement” dated December 20, 2009.             They contend traditional summary
judgment was not warranted because (1) the release applies to Electro Circuits and
Parikh as a matter of law; (2) they are entitled to fees because Agar breached the
release by suing them; and (3) at a minimum, a fact issue exists regarding the
status of Electro Circuits and Parikh as “affiliates” of the parties being released by
                                          17
Agar.

           The December 2009 Mutual Release and Settlement Agreement identifies
the “Parties” to that agreement as Agar Corporation, Inc.; Girish Parikh; 3 and SGM
Corporation d/b/a V-J Electronic Assemblies. It is signed by a “Director” of Agar
Corporation, Inc.; Girish Parikh individually; and Girish Parikh as a “Director” of
SGM Corporation d/b/a V-J Electronic Assemblies.

           The agreement states as follows.

           3. With the exception of the obligations of the Parties expressly
           referenced in this Mutual Release and Settlement Agreement, Agar
           hereby RELEASES, ACQUITS and FOREVER DISCHARGES, and
           by these presents does hereby RELEASE, ACQUIT and FOREVER
           DISCHARGE, [Girish] Parikh and V-J and their officers, directors,
           shareholders, employees, successors, and assigns, agents, attorneys,
           and any and all legal and business entities or affiliates associated with
           [Girish] Parikh and V-J, from any and all claims, demands, causes of
           action, losses, liabilities and expenses of whatever nature . . . arising .
           . . in connection with or related to the Lawsuit, the events and
           transactions which are the subject matter of the Lawsuit, and all
           actions and transactions which have taken place prior to the date of
           this Agreement.

           ...
           7. This Agreement may be pled as a full and complete defense to and
           may be used as a basis for an injunction against any action, suit or
           other proceeding which may be instituted, prosecuted or attempted by
           any Party against another Party they have released hereby. In the
           event any Party initiates such action, suit or other proceeding, the
           Party against whom such action, suit or other proceeding has been
           instituted, shall be entitled to recover from the Party instituting such
           action, suit or other proceeding, all costs, attorneys’ fees and expense
           incurred in connection with same.

           3
               Although they share a common surname, Girish Parikh and Suresh Parikh are not
related.

                                                18
      ...

      9. Each Party warrants and represents that it is the owner of any
      causes of action hereby released and the proper party to give a release
      thereof. Each Party further warrants and represents that it is legally
      competent to execute this Agreement and each signatory below
      warrants and represents that they are authorized to execute this
      Agreement. Each Party also understands that this is a full, final and
      complete settlement and release and that the consideration described
      herein is all the consideration to be given by each Party hereto.

      ...

      11. Each Party further understands and agrees that this Agreement is
      not executed by any Party hereto based upon any representation,
      statement or warranty not specifically set forth in this Agreement, that
      this instrument constitutes the entire agreement and understanding
      between the Parties, and that unless otherwise set forth herein, no
      party has relied on any other representations, written or otherwise,
      made to it by any other party to this Agreement.

      12. Each Party acknowledges that it has read this Agreement and has
      received the advice of its counsel with respect thereto, and that it
      executes this Agreement voluntarily and with full knowledge of its
      significance.
According to Electro Circuits and Suresh Parikh, they are “legal and business
entities or affiliates associated with [Girish] Parikh and V-J” who were released by
Agar in paragraph 3 and who are entitled to attorney’s fees from Agar under
paragraph 7 “as a result of [Agar] . . . bringing this case in violation of the
Release.” Electro Circuits and Suresh Parikh point to portions of the record that,
according to them, establish that they are “considered ‘affiliates’ or business
entities associated with [Girish] Parikh and V-J . . . .” At a minimum, Electro
Circuits and Suresh Parikh contend the record raises a fact issue regarding their
status as “affiliates” of the individuals and entities released in paragraph 3.

      According to Agar, records from the Texas Secretary of State establish that

                                          19
Electro Circuits and Parikh are not “legal and business entities or affiliates” of the
individuals and entities released in paragraph 3; the December 2009 release was
not intended to release claims against Electro Circuits and Suresh Parikh, who
were not sued until November 2011; the release language does not identify Electro
Circuits and Parikh with sufficient particularity; and Electro Circuits and Suresh
Parikh cannot obtain attorney’s fees under paragraph 7 even if claims against them
were released in paragraph 3.

      We apply well-settled law in evaluating these contentions. A release is a
writing that discharges a duty or obligation owed to one party to the release; the
discharge can occur immediately, or upon the occurrence of a condition. See Nat’l
Union Fire Ins. Co. of Pittsburgh v. Ins. Co. of N. Am., 955 S.W.2d 120, 127 (Tex.
App.—Houston [14th Dist.] 1997), aff’d sub nom. Keck, Mahin & Cate v. Nat’l
Union Fire Ins. Co., 20 S.W.3d. 692 (Tex. 2000). As applied to a claim or cause
of action, a release extinguishes the claim or cause of action. Dresser Indus., Inc.
v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993). A release is a contract
subject to the rules governing contract construction. See Williams v. Glash, 789
S.W.2d 261, 264 (Tex. 1990).

      The court’s primary concern in construing a written contract is to ascertain
the parties’ true intentions as expressed in the instrument, which are discerned
primarily by reference to the contract’s words. Coker v. Coker, 650 S.W.2d 391,
393 (Tex. 1983); Nat’l Union Fire Ins. Co. of Pittsburgh, 955 S.W.2d 127. Courts
should examine the entire writing in an effort to harmonize and give effect to all
provisions so that none are rendered meaningless. Coker, 650 S.W.2d at 393; Nat’l
Union Fire Ins. Co. of Pittsburgh, 955 S.W.2d at 127. No single provision taken
alone should be given controlling effect; all provisions must be considered with
reference to the entire contract. Coker, 650 S.W.2d at 127.

                                         20
      To be effective, a release must mention the claim to be released. See
Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938 (Tex. 1991). General,
categorical releases must be construed narrowly. Duncan v. Cessna Aircraft Co.,
665 S.W.2d 414, 422 (Tex. 1984); Baty, 63 S.W.3d at 850 n.7.

      The Texas Supreme Court has rejected the contention that “a party who
releases a claim and later files suit on that claim necessarily breaches the release
agreement.” Nat’l Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 428 (Tex.
2015) (per curiam). The court likewise has rejected an effort to read “a covenant
not to sue into a release that does not include such a promise.” Id. A release
provides an affirmative defense if a future suit is filed upon a released claim even
if there is no accompanying covenant not to sue or provision authorizing recovery
of attorney’s fees. See id. at 428-29.

      Applying these standards to the release agreement at issue here, we conclude
that Electro Circuits and Suresh Parikh misplace their reliance on paragraph 7 as a
basis for recovering attorney’s fees. This conclusion applies even if we assume for
argument’s sake that Electro Circuits and Suresh Parikh are “legal and business
entities or affiliates associated with” Girish Parikh and V-J, and that they were
released by Agar in paragraph 3. We reach this conclusion because the differing
language used in paragraphs 3 and 7 demonstrates that not all persons or entities
released by Agar in paragraph 3 are authorized to seek attorney’s fees against Agar
under paragraph 7.

      The release defines the “Parties” as Agar, Girish Parikh, and SGM
Corporation d/b/a V-J Electronic Assemblies. The release does not define the term
“Party” in the singular.

      Electro Circuits and Parikh invite us to read the term “Party” used in
paragraph 7 to encompass “affiliates” so that “affiliates” can seek attorney’s fees.
                                         21
Under this reading, each of the “affiliates” referenced in paragraph 3 is a “Party”
who “shall be entitled to recover” attorney’s fees under paragraph 7 if Agar sues
them.

        We decline this invitation in light of the release’s unambiguous language.
The release does not define “Party” or “Parties” to include “any and all legal and
business entities or affiliates associated with” Girish Parikh and V-J. Rather, this
quoted “affiliates” phrase appears in paragraph 3 to identify the persons and
entities being released by Agar. This quoted “affiliates” phrase also appears in
paragraph 4, the mirror-image provision by which Girish Parikh and V-J mutually
release Agar along with “any and all legal and business entities or affiliates
associated with Agar . . . .” This quoted “affiliates” phrase appears nowhere else in
the release.

        In contrast to the release provisions in paragraphs 3 and 4, the attorney’s fee
language in paragraph 7 omits this quoted “affiliates” phrase; this portion of
paragraph 7 addressing attorney’s fees applies only to “the Party against whom
such action, suit or other proceeding has been instituted” and “the Party instituting
such action, suit or other proceeding . . . .” The “Parties” are Agar, Girish Parikh,
and SGM Corporation d/b/a V-J Electronic Assemblies.                  This difference
demonstrates that paragraph 7’s scope with respect to attorney’s fees is narrower
than paragraph 3’s scope with respect to a release.

        Paragraph 7’s narrower scope with respect to attorney’s fees comports with
other release provisions that specify actions by a “Party” but not “affiliates” of a
Party. For example, paragraph 9 states as follows: “Each Party further warrants
and represents that it is legally competent to execute this Agreement . . . .”
Paragraph 9 continues: “Each Party also understands . . . that the consideration
described herein is all the consideration to be given by each Party hereto.” Electro

                                          22
Circuits and Suresh Parikh neither executed the release as asserted “affiliates” nor
provided consideration. Similarly, the references in paragraphs 11 and 12 to
execution of the release by a “Party” also do not encompass asserted “affiliates”
Electro Circuits and Suresh Parikh because they executed nothing.4

       The upshot is that paragraph 7 authorizes attorney’s fees only for a subset of
the universe of persons and entities released by Agar under paragraph 3. This
circumstance fits with the supreme court’s recognition that a release by itself is not
equivalent to a covenant not to sue, and that creation of such a covenant requires
express language to that effect. See Nat’l Prop. Holdings, L.P., 453 S.W.3d at 428.

       We overrule the issues raised in the cross-appeal of Electro Circuits and
Parikh.

       Accordingly, we affirm the trial court’s judgment.




                                            /s/     William J. Boyce
                                                    Justice




Panel consists of Chief Justice Frost and Justices Boyce and Wise.




       4
          We reject the contention of Electro Circuits and Parikh that Agar waived its ability to
rely on the release’s express terms in the trial court. In its August and September 2014 summary
judgment motions on attorney’s fees, Agar expressly argued that Electro Circuits and Parikh
could not obtain attorney’s fees under the release because they were not parties entitled to fees
under the release. Agar raised the same contention in its response to the June 2014 summary
judgment motion filed by Electro Circuits and Parikh.

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