AFFIRMED; Opinion Filed May 22, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-01468-CV

                      DARWIN FLORES, Appellant
                                 V.
     INTELLIGENCE SERVICES OF TEXAS, INC., KEN LYBRAND, AND STEVE
                           TAPPER, Appellees

                       On Appeal from the 101st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-11-14840

                             MEMORANDUM OPINION
                           Before Justices O’Neill, Myers, and Brown
                                   Opinion by Justice Myers
       This is an appeal from a summary judgment granted for appellees Intelligence Services of

Texas, Inc., Ken Lybrand, and Steve Tapper, and against appellant Darwin Flores. In five issues,

appellant argues (1) we should reverse the trial court’s grant of summary judgment on

appellant’s negligence claim because appellees owed him a legal duty of care; (2) he was

equitably entitled to attorneys’ fees incurred in a prior litigation; (3) the contingency fee

agreement between appellant and his attorney in that litigation had no bearing on whether

appellant was entitled to recover attorneys’ fees; (4) the trial court erred by granting no-evidence

summary judgment regarding appellant’s mental anguish damages; and (5) appellant was entitled

to exemplary damages for gross negligence. We affirm the trial court’s judgment.
                           BACKGROUND AND PROCEDURAL HISTORY

       This case arises out of an investigation conducted by appellee Intelligence Services of

Texas, Inc., that took place as part of an unsuccessful medical malpractice action brought by

appellant Darwin Flores against Dr. Clint Long, his former physician. In that action, appellant

alleged that Dr. Long’s negligence caused appellant to suffer from monocular vision––a visual

impairment that involves decreased visual acuity, orientation, and limited depth perception. As

part of his defense of that lawsuit, Dr. Long’s trial counsel hired Intelligence Services to conduct

video surveillance of appellant.    Appellee Ken Lybrand was the principal and manager of

Intelligence Services. Appellee Steve Tapper investigated appellant.

       On August 24, 2009, Tapper conducted video surveillance of appellant and recorded him

engaging in various activities such as driving a car, walking, climbing and descending stairs,

bending over, and grasping items of various weights. During his surveillance, Tapper saw a

person rollerblading who looked similar to appellant, and Tapper briefly recorded the person.

When Tapper provided the recording to Intelligence Services, he included a narrative chronology

of the surveillance that stated, among other things, that the person rollerblading was not appellant

That statement was as follows: “NOTE: This video is NOT the subject.”

       Intelligence Services subsequently gave the videotape to Dr. Long’s attorneys and its

narrative also noted that the person roller blading was not appellant. However, when Long’s

attorney’s produced the videotape in the underlying litigation, it did not include the written

narrative. At his deposition, appellant was asked whether the person roller blading was him.

Appellant testified it was not him. Tapper was deposed and affirmed the rollerblader was not

appellant, and also provided his written report showing that he notified Long’s attorneys that the

rollerblader was not appellant. Prior to trial, Long’s attorneys notified appellant they would be

“happy” to remove that portion of the videotape.

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       The jury ultimately found for Dr. Long in the medical malpractice action, after which the

trial court entered a take-nothing judgment against appellant.

       Following his loss at trial, appellant filed this lawsuit against appellees alleging causes of

action against them for negligence, negligent misrepresentation, negligence per se, fraud, and

fraudulent misrepresentation.

       Alleging that appellees filmed the video footage in such a way as to create a “misleading

perception” of appellant, and that appellees provided false information that could be relied on by

others, appellant asserted causes of action for negligence, negligent misrepresentation,

negligence per se, fraud, and fraudulent misrepresentation. Appellant’s petition alleged he was

damaged because “[t]he things that Defendants captured and what they chose not to capture

made it possible for the [ ] defense team to create a misleading picture for the finder of fact in the

[underlying lawsuit].” (emphasis added). Appellant asserted damages of one billion dollars for

emotional distress and mental anguish, one billion dollars for exemplary and punitive damages,

and $500,000 for “additional legal services” incurred by appellant “beyond the scope of the

original contract with his attorneys.”

       Appellees filed a traditional and no-evidence motion for summary judgment asserting,

among other things, they had no legal duty to appellant and appellant had suffered no damages.

The trial court granted final summary judgment for appellees. This appeal followed.

                                            DISCUSSION

       In his first issue, Flores argues that we should reverse the trial court’s grant of summary

judgment on his negligence claim because “a private detective who conducts surveillance on an

adversary owes his adversary a duty to refrain from circulating work product that the private

detective knows can be used as fake evidence.” The alleged negligence arises from appellees




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providing the videotape to Long’s attorneys without somehow noting on the videotape itself that

the rollerblader was not appellant.

       We review the trial court’s summary judgment de novo. Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). We apply the well-established standards for

reviewing summary judgments. See TEX. R. CIV. P. 166a(c), (i); Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310–11 (Tex. 2009) (no-evidence summary judgment standard of review); Nixon v.

Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985) (traditional summary judgment

standard of review). A traditional motion for summary judgment must show there is no genuine

issue as to a specified material fact and, therefore, the moving party is entitled to judgment as a

matter of law. TEX. R. CIV. P. 166a(c). For a defendant to prevail on a traditional motion for

summary judgment, he must either disprove at least one element of the plaintiff's claim as a

matter of law, or conclusively establish all elements of an affirmative defense. Friendswood

Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996); Kalyanaram v. Univ. of Tex. Sys.,

230 S.W.3d 921, 925 (Tex. App.––Dallas 2007, pet. denied). If the movant meets its burden,

then and only then must the non-movant respond and present evidence raising a fact issue. See

Rhone–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999).

       A no-evidence motion for summary judgment under rule 166a(i) must challenge specific

elements of the opponent’s claim or defense on which the opponent will have the burden of proof

at trial. TEX. R. CIV. P. 166a(i). The opponent must then present summary judgment evidence

raising a genuine issue of material fact to support the challenged elements. Id. A genuine issue

of material fact exists if the non-movant produces more than a scintilla of evidence supporting

the existence of the challenged element. Fort Worth Osteopathic Hosp., Inc. v. Reese, 148

S.W.3d 94, 99 (Tex. 2004).

       Since the trial court’s order granting final summary judgment does not specify the

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grounds on which it granted summary judgment, the court’s judgment will be affirmed if any of

the grounds presented in the motion for summary judgment support the judgment. See Jarvis v.

Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.––Dallas 2009, pet. denied).

       To maintain an action for negligence, a plaintiff must show: (1) that the defendant owed

a legal duty to the plaintiff; (2) that the defendant breached that duty; and (3) that the alleged

breach proximately caused harm to the plaintiff. See W. Invs. v. Urena, 162 S.W.3d 547, 550

(Tex. 2005); Lee Lewis Const. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001). Duty is the

threshold issue of law to be decided by the court in a negligence case. Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Mathis v. RKL Design/Build, 189 S.W.3d 839, 844

(Tex. App.––Houston [1st Dist.] 2006, no pet.). “The nonexistence of a duty ends the inquiry

into whether negligence liability may be imposed.” Van Horn v. Chambers, 970 S.W.2d 542,

544 (Tex. 1998); see also J.P. Morgan Chase Bank, N.A. v. Texas Contract Carpet, Inc., 302

S.W.3d 515, 529 (Tex. App.––Austin 2009, no pet.) (“In the absence of a duty, there can be no

negligence.”) (quoting Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 223 (Tex. 2002)

(Enoch, J., concurring)). Under Texas law, the existence of a duty is determined by looking at

three factors: “(1) the relationship between the parties; (2) the reasonable foreseeability of harm

to the person injured; and (3) public policy considerations.” Texas Home Mgmt., Inc. v. Peavy,

89 S.W.3d 30, 34 (Tex. 2002).

       In this case, appellees moved for summary judgment on appellant’s negligence claim

asserting they owed no legal duty to appellant. It is undisputed that there was no relationship

between appellees and Flores. Indeed, appellees were hired by counsel adverse to Flores to

gather evidence to use against Flores in a malpractice trial. Additionally, Flores has failed to

show a duty should arise based on the reasonable foreseeability that Long’s attorney would use

the misleading portions of the videotape to harm Flores or any other policy considerations that

                                               –5–
would justify imposing a duty under these circumstances. We decline appellant’s invitation to

create a new common law duty of care. See J.P. Morgan Chase Bank v. Texas Contract Carpet,

Inc., 302 S.W.3d 515, 535 (Tex. App.––Austin 2009, no pet.) (stating that intermediate appellate

courts should be reluctant to recognize new common law duty that has no existence in

established law) (citing Lubbock County v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585

(Tex. 2002)). Accordingly, Flores has not shown the trial court erred in granting appellees’

summary judgment motion on this ground. For those same reasons, we further conclude the trial

court properly granted appellees’ motion for summary judgment on appellant’s claim for gross

negligence. See City of Waco v. Kirwan, 298 S.W.3d 618, 623 (Tex. 2009) (“As with negligence

actions . . . a defendant may be liable for gross negligence only to the extent that it owed the

plaintiff a legal duty.”); West v. SMG, 318 S.W.3d 430, 442–43 (Tex. App.––Houston [1st Dist.]

2010, no pet.) (trial court did not abuse its discretion by granting SMG’s motion for summary

judgment because concertgoer failed to bring forth sufficient evidence on the element of duty, a

necessary element of her negligence and gross negligence claims); RT Realty, L.P. v. Tex. Utils.

Elec. Co., 181 S.W.3d 905, 914 (Tex. App.––Dallas 2006, no pet.) (“The threshold inquiry

regarding a gross negligence claim is whether a legal duty existed.”). We therefore overrule

appellant’s first and fifth issues. Because of our conclusion that there is no duty, we do not

address appellant’s remaining issues pertaining to attorneys’ fees and damages.

       The trial court’s judgment is affirmed.



121468F.P05

                                                       /Lana Myers/
                                                       LANA MYERS
                                                       JUSTICE




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                     JUDGMENT

DARWIN FLORES, Appellant                             On Appeal from the 101st Judicial District
                                                     Court, Dallas County, Texas
No. 05-12-01468-CV        V.                         Trial Court Cause No. DC-11-14840.
                                                     Opinion delivered by Justice Myers.
INTELLIGENCE SERVICES OF TEXAS,                      Justices O'Neill and Brown participating.
INC., KEN LYBRAND AND STEVE
TAPPER, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED. It is ORDERED that appellees INTELLIGENCE SERVICES OF TEXAS, INC.,
KEN LYBRAND, AND STEVE TAPPER recover their costs of this appeal from appellant
DARWIN FLORES.

Judgment entered this 22nd day of May, 2014.




                                                     / Lana Myers/
                                                     LANA MYERS
                                                     JUSTICE




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