                        NUMBER 13-14-00139-CV

                           COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


CARLOS MACIAS,                                                         Appellant,

                                         v.

JULIAN GOMEZ III, M.D. AND THE
JULIAN C. GOMEZ AND KERRI S.
GOMEZ CHILDREN’S TRUST,                                                Appellees.


                  On appeal from the 332nd District Court
                        of Hidalgo County, Texas.


                        MEMORANDUM OPINION

           Before Justices Rodriguez, Benavides, and Perkes
              Memorandum Opinion by Justice Rodriguez
      This summary judgment proceeding involves a limited liability company (LLC) and

disputes between appellant Carlos Macias, a majority interest member and the manager
of the LLC, and appellees Julian Gomez III, M.D. (Dr. Gomez) and the Julian C. Gomez

and Kerri S. Gomez Children’s Trust (the Trust), minority interest members of the LLC. 1

By two issues, Macias contends that the trial court erred in granting a traditional summary

judgment against him (1) on his breach of fiduciary duty claim because a fiduciary

relationship existed; and (2) on his civil conspiracy and aiding and abetting claims

because Dr. Gomez and the Trust did not address those claims in their summary

judgment motion and they are not derivative claims. We affirm.

                                              I.      BACKGROUND2

           Dr. Gomez and the Trust sued Macias, alleging unlawful actions involving the

LLC. 3         Macias filed a general denial and pleaded affirmative defenses.                        Macias

counterclaimed against Dr. Gomez and the Trust for abuse of process, breach of fiduciary

duty, unjust enrichment, and business duress/coercion.                        He also sought declaratory

relief.4

           On July 23, 2009, Dr. Gomez and the Trust filed a traditional summary judgment


           1   The parties identify Border Furniture, LLC, as the LLC in this case.

           2
          As this is a memorandum opinion and the parties are familiar with the facts and all issues of law
presented by this case are well settled, we will not recite the facts or the law here except as necessary to
advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.

        3 Dr. Gomez and the Trust sued Macias for breach of contract, quantum meruit, promissory

estoppel, negligent misrepresentation, fraud, conversion, breach of fiduciary duty, oppressive conduct, civil
conspiracy, accounting, and unlawful actions under the Texas Theft Liability Act. Dr. Gomez and the Trust
non-suited their claims after the trial court granted summary judgment in their favor on Macias’s
counterclaims.

          Macias requested the following declaratory relief: (1) that plaintiffs’ claims were barred either by
           4

estoppel, waiver, ratification, or res judicata; (2) that plaintiffs’ rights and duties as members are equal to,
and not above those of Macias; (3) that the trial court declare the fair value of Plaintiffs’ interest in the
company; (4) that such amount be offset by fees and expenses; and (5) that Plaintiffs must contribute in
their proportionate share to the operation or liabilities of the business.

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motion on Macias’s counterclaims. 5 On August 24, 2009, after he responded to the

summary judgment motion, Macias amended his answer and his counterclaims. He

reasserted breach of fiduciary duty and unjust enrichment, and again sought declaratory

relief and pleaded affirmative defenses. Macias also added claims of civil conspiracy

and aiding and abetting.6

       On May 18, 2011, the trial court granted summary judgment against Macias,

without specifying the grounds, and dismissed all of his counterclaims with prejudice. Dr.

Gomez and the Trust nonsuited their claims on December 2, 2013, and the trial court

issued its final judgment on December 5, 2013. This appeal followed.

                                   II.     STANDARD OF REVIEW

       We review a trial court's summary judgment de novo. Joe v. Two Thirty Nine Joint

Venture, 145 S.W.3d 150, 156 (Tex. 2004). To obtain a traditional summary judgment a

movant must demonstrate that no genuine issue of material fact exists and that he is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Provident Life & Acc.

Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A plaintiff moving for traditional

summary judgment on a counterclaim must negate at least one essential element of the

defendant’s counterclaim. Tello v. Bank One, N.A., 218 S.W.3d 109, 113 (Tex. App.—



       5  Dr. Gomez and the Trust also filed a no-evidence summary judgment motion, but later abandoned
it. So our review involves only the traditional summary judgment granted in favor of Dr. Gomez and the
Trust on Macias’s counterclaims.

       6  Although the trial court granted summary judgment against Macias on all counterclaims, on
appeal, Macias only addresses and argues issues regarding his claims for breach of fiduciary duty, civil
conspiracy, and aiding and abetting. He does not complain that summary judgment was improper on his
unjust enrichment claim and his declaratory judgment action. So Macias waived any error with regard to
those claims. See Jacobs v. Satterwhite, 65 S.W.3d 653, 655–56 (Tex. 2001) (per curiam) (reasserting
that grounds of error not asserted by issues or argument in the court of appeals are waived).
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Houston [14th Dist.] 2007, no pet.) (citing Taylor v. GWR Operating Co., 820 S.W.2d 908,

910 (Tex. App.—Houston [1st Dist.] 1991, writ denied)).

                       III.    Breach of Fiduciary Duty Counterclaim

        By his first issue, Macias contends the trial court erred when it concluded that no

fiduciary relationship existed between Macias and Dr. Gomez and the Trust and granted

summary judgment against him on his breach of fiduciary duty counterclaim.                 See

Burrow v. Arce, 997 S.W.2d 229, 237 (Tex. 1999) (setting out the elements of a breach

of fiduciary duty claim as follows: (1) a fiduciary relationship between the plaintiff and

defendant; (2) a breach of the duty by the defendant; and (3) injury to the plaintiff or benefit

to the defendant because of the defendant’s breach); SJW Prop. Commerce, Inc. v. Sw.

Pinnacle Props., Inc., 328 S.W.3d 121, 154 (Tex. App.—Corpus Christi 2010, pet. denied)

(op. on reh’g). Macias claims that Dr. Gomez and the Trust owed him a fiduciary duty

because they were minority members of the LLC and exercised control over it. Macias

contends that he established that Dr. Gomez and the Trust actively controlled the LLC by

exercising power over the business and thwarting its sale. He argues that, because of

this alleged control, Dr. Gomez and the Trust stood as fiduciaries or, at least, that he

presented a question of fact as to their fiduciary status. In response, Dr. Gomez and the

Trust argue that we cannot consider this argument on appeal because Macias did not

raise it in the trial court.

A.      Motion and Response Filed in the Trial Court

        Dr. Gomez and the Trust filed their motion for summary judgment, asserting that

as minority owners they did not owe Macias, a majority owner, a fiduciary duty as a matter

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of law. Macias’s response to this challenge follows in its entirety:

              Because the argument here is purely legal, it shall be addressed at
       the outset.

              Defendants claim that minority members owe no fiduciary duty to
       majority members of an LLC. No Texas court case is cited for this
       proposition, and Plaintiffs cite an inapposite federal case (which addressed
       corporations, a different business entity).

              No court has held that members of a Limited Liability Company do
       not have a fiduciary duty to one another and Plaintiffs would have this Court
       make a novel ruling. Commentators uniformly concur, however, that such
       a duty exists since an LLC, being taxed like a partnership, has
       corresponding partnership duties (all partners in a partnership have a
       fiduciary duty to one another). The Affidavit of Carlos Macias (Exhibit "A")
       establishes that Plaintiffs were minority members of the LLC. Dr. Gomez
       feels no responsibility to his fellow business members (Exhibit "B" [Gomez’s
       deposition excerpts], p. 16 [6-12], p. 32 [1-4]).

In his attached affidavit, Macias averred the following:

              I was the majority member of Furniture Depot Center [FDC]. Dr.
       Julian Gomez was a minority member, as were the Julian and Kerri S.
       Gomez Children’s Trust.

              In order to keep Furniture Depot Center from shutting down in the
       wake of this nation’s economic meltdown, I injected monies into the
       business and incurred legal debts to make payroll, for example. Mr. Julian
       Gomez and Dr. Gomez directed that I take certain actions and substantially
       attempted to run the business. Also, there was a buyer of Furniture Deport
       Center, but sale of such entity was thwarted because Dr. Gomez sought to
       be preferentially treated ahead of the other members with respect to the
       proceeds of sale. Dr. Gomez also prevented FDC from having meetings,
       enjoining all meetings. I sought to have meetings so that I could have the
       assistance of the members in keeping the business operational. The
       business eventually shut down and is being liquidated.

B.     Discussion

       “The non-movant must expressly present to the trial court, by written answer or

response, any issues defeating the movant's entitlement to summary judgment.” Tello

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v. Bank One, N.A., 218 S.W.3d 109, 118 (Tex. App.—Houston [14th Dist.] 2007, no pet.)

(citations omitted). “Issues not expressly presented to the trial court by written motion,

answer or other response shall not be considered on appeal as grounds for reversal.”

TEX. R. CIV. P. 166a(c); see City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678–79 (Tex. 1979); see also Ruiz v. CBL & Assocs. Props., Inc., No. 13-13-00670-CV,

2014 WL 4161583, at *2 & n.1 (Tex.—Corpus Christi Aug. 21, 2014, no pet.) (mem. op.).

And to “expressly” present issues pursuant to Rule 166a(c), ‘“[t]he written answer or

response to the motion must fairly apprise the movant and the court of the issues the non-

movant contends should defeat the motion.’” Tello, 218 S.W.3d at 119 (quoting Clear

Creek, 589 S.W.2d at 678). “The requirement that the non-movant “fairly apprise” the

trial court of the issues allegedly defeating summary judgment clearly contemplates that

the trial court is not required to guess why a non-movant presents certain evidence or

consider every possible reason the evidence might defeat summary judgment.” Id. at

120.

       In the trial court, Macias claimed that Dr. Gomez and the Trust owed him a fiduciary

duty, as a matter of law, because they were minority owners of the LLC and Macias was

a majority owner. He compared the LLC to a partnership, where, as he asserted, all

partners owe a fiduciary duty to one another. This is the only basis Macias urged in

support of his responsive argument in the trial court. Nonetheless, in his reply brief on

appeal, Macias argues that he did raise the control issue through his affidavit. He claims

that all of the actions discussed in his affidavit relate to issues of control, and therefore

the control issue was not raised for the first time on appeal. We disagree.

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       In his response, Macias asserted only that the affidavit established that Dr. Gomez

and the Trust “were minority members of the LLC” and that, like a partnership, LLC

members owed each other a fiduciary duty. He made no argument in his response and

no statement in his affidavit that, through the described acts, Dr. Gomez and the Trust

controlled the LLC in a manner that created a fiduciary duty between the members of the

LLC. We cannot conclude that Macias’s responsive argument and the statements in his

affidavit regarding Dr. Gomez’s actions fairly apprised the trial court what, if anything,

Macias wanted the trial court to do with that information. See id. at 120.

       Because Macias did not fairly apprise the trial court of this “control” argument in

his written response, we cannot reverse the trial court’s summary judgment order on the

basis that Dr. Gomez and the Trust, minority members of the LLC, controlled the LLC

such that they owed a fiduciary duty to Macias.7 See id.; see also TEX. R. CIV. P. 166a(c);

Clear Creek Basin Auth., 589 S.W.2d at 678–79; Ruiz, 2014 WL 4161583, at *2 & n.1.

Our review is restricted to those grounds raised in the trial court. See Clear Creek Basin

Auth., 589 S.W.2d at 678. We overrule Macias’s first issue.

                 IV.     CIVIL CONSPIRACY AND AIDING AND ABETTING CLAIMS

       By his second issue, Macias contends that the trial court erred in disposing of his

civil conspiracy and aiding and abetting claims, which he pleaded in his amended petition

filed after Dr. Gomez and the Trust filed their motion for summary judgment. He also

asserts “[t]hese claims cannot be derivative of the breach of fiduciary duty claim because




       7  We offer no opinion as to whether an LLC’s minority members who control activities of the LLC
owe a fiduciary duty to majority members.
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they are distinct causes of action not based upon the legal existence of the breach of

fiduciary duty claim.” We disagree.

A.     Applicable Law

       The general rule is that trial courts commit reversible error if they grant summary

judgment on unaddressed claims. See G & H Towing Co. v. Magee, 347 S.W.3d 293,

297 (Tex. 2011) (per curiam). The general rule, however, is subject to the following two

exceptions:

       (1) when the movant has conclusively proved or disproved a matter (usually
       corresponding to a claim’s element or to an affirmative defense) that would
       also preclude the unaddressed claim as a matter of law or (2) when the
       unaddressed claim is derivative of the addressed claim, and the movant
       proved its entitlement to summary judgment on that addressed claim.

Id. at 297. If either exception is met, the trial court’s error is harmless. See id. at 297–

98.

B.     Error in Granting Summary Judgment on Unaddressed Counterclaims

       In this case, after Dr. Gomez and the Trust filed their motion for summary

judgment, Macias added his claims for civil conspiracy and aiding and abetting. The

summary judgment motion did not address Macias’s new claims, and Dr. Gomez and the

Trust filed no supplemental or amended motion addressing those claims. The trial court

erred in granting the motion as to Macias’s civil conspiracy and aiding and abetting claims.

See id. at 297. Having so concluded, we must look to the two exceptions to determine

whether the error harmed Macias. See id. at 297–98.

C.     Harmless Error

       In this appeal, the relevant exception to the general rule is the second exception—

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“when the unaddressed claim is derivative of the addressed claim, and the movant proved

its entitlement to summary judgment on that addressed claim.” Id. at 297.

       Conspiracy requires proving an underlying, intentional tort. W. Fork Advisors,

LLC v. SunGard Consulting Servs., LLC, 437 S.W.3d 917, 920–21 (Tex. App.—Dallas

2014, pet. filed) (citing Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996) (op. on reh’g)).

Aiding and abetting similarly requires proving an underlying, specific-intent tort or grossly

negligent act. W. Fork Advisors, 437 S.W.3d at 921 (citing Ernst & Young, L.L.P. v. Pac

Mut. Life Ins. Co., 51 S.W.3d 573, 583 (Tex. 2001) (holding that summary judgment on

the underlying tort claim disposed of plaintiff’s civil conspiracy and aiding and abetting

claims)). In other words, conspiracy and aiding and abetting are both derivative claims

that require the commission of an underlying tort to be viable. Id. at 920–21; see Ernst

& Young, 51 S.W.3d at 583; Tilton, 925 S.W.2d at 681; see also Bailey v. Smith, No. 13-

05-085-CV, 2006 WL 1360846, at *13 (Tex. App.—Corpus Christi May 18, 2006, no pet.)

(mem. op.). This satisfies the first part of the second exception set out above. See

Magee, 347 S.W.3d at 297.

       Macias’s breach of fiduciary duty claim is the only claim upon which he could have

premised his derivative claims for conspiracy and aiding and abetting.             We have

concluded, on appeal, that the breach of fiduciary duty claim fails, so Macias is not entitled

to summary judgment on the underlying addressed claim. This satisfies the second part

of the exception. See id. Because the second exception to the general rule has been

met, we conclude that the trial court’s error in granting summary judgment on

unaddressed civil conspiracy and aiding and abetting claims was harmless. See id. at

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297–98.

      We overrule Macias’s second issue.

                                  V.      CONCLUSION

      We affirm the judgment of the trial court.



                                                       NELDA V. RODRIGUEZ
                                                       Justice

Delivered and filed the 11th
day of December, 2014.




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