AFFIRM in Part, REVERSE in Part, and REMAND; and Opinion Filed March 28, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-12-01230-CV

                        ALLEN IVERSON, Appellant
                                  V.
             DOLCE MARKETING GROUP AND DG1 ENT, LLC, Appellees

                       On Appeal from the 44th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. DC-10-06058

                             MEMORANDUM OPINION
                           Before Justices Moseley, Lang, and Brown
                                   Opinion by Justice Brown
       Allen Iverson appeals a post-answer default judgment in favor of appellees Dolce

Marketing Group and DG1 Ent, LLC. Appellees sued Iverson for breach of contract and fraud

after Iverson allegedly failed to show up for a paid appearance. Iverson filed a pro se answer,

but failed to appear at trial. The trial court rendered a default judgment against him in the

amount of $495,058.29, plus attorney’s fees and court costs. On appeal, Iverson contends,

among other things, that the evidence is legally insufficient to support the default judgment. We

agree and reverse the trial court’s default judgment against Iverson.

       In their original petition filed in May 2010, appellees contended they entered into a

written contract with Iverson, a professional basketball player, negotiated through and signed by

his agent, Gary Moore. The alleged contract required Iverson to appear for two hours at a party
on the weekend of the 2010 NBA All-Star Game, held in Dallas. Iverson’s representatives

allegedly cancelled immediately before the event.      Appellees alleged Iverson breached the

contract by failing to appear and also fraudulently induced appellees to enter into the contract.

Appellees also sued Kiam Pennington, to whom they allegedly paid a deposit for Iverson’s

appearance, and Moore. Moore was never served and was nonsuited, and appellees obtained a

default judgment against Pennington, who is not a party to this appeal.

       On March 22, 2012, Iverson filed a pro se original answer in which he asserted a general

denial and various affirmative defenses to appellees’ claims. That same day, the trial court

issued a pre-trial order which set the case for a non-jury trial on June 11, 2012. When Iverson

failed to appear for trial on June 11, 2012, the court heard evidence and rendered a default

judgment in appellees’ favor for $495,058.29, plus attorney’s fees and court costs. Iverson

timely filed a motion for new trial alleging that the default judgment should be set aside because

he did not receive notice of the trial setting. After a hearing, the court denied the motion. This

appeal followed.

       In his fourth issue, Iverson contends the evidence is legally insufficient to support the

default judgment as to liability. We agree.

       If a no-answer default judgment is granted, the defendant who did not answer is deemed

to have admitted the facts properly pleaded and the justice of his opponent’s claims. Stoner v.

Thompson, 578 S.W.2d 679, 682 (Tex. 1979). A post-answer default judgment, however,

constitutes neither an abandonment of the defendant’s answer, nor an implied confession of any

issues. Id. In such cases, judgment cannot be entered on the pleadings. Id. Instead, the party

seeking judgment must offer evidence and prove all aspects of his case. Bradley Motors, Inc. v.

Mackey, 878 S.W.2d 140, 141 (Tex. 1994); Stoner, 578 S.W.2d at 682. Here, because Iverson




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filed an answer, appellees had the burden to prove both liability and damages. See Armstrong v.

Benavides, 180 S.W.3d 359, 362 (Tex. App.—Dallas 2005, no pet.).

       A party against whom a post-answer default judgment has been granted may challenge

the legal sufficiency of the evidence to support the judgment on appeal. See Norman Commc’ns

v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997) (per curiam).              The test for legal

sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to

reach the verdict under review. Armstrong, 180 S.W.3d at 362. In our review of the evidence,

we credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless

reasonable jurors could not. Id. If there is more than a scintilla of evidence to support the

verdict, we uphold the judgment. Evidence is no more than a scintilla when it is so weak as to do

no more than create a mere surmise or suspicion of the fact’s existence. Id.

       Appellees’ first cause of action against Iverson was for breach of contract. Among the

elements necessary to succeed on their breach of contract claim, appellees needed to present

evidence of a valid contract existing between them and Iverson. See Schindler v. Baumann, 272

S.W.3d 793, 795 (Tex. App.—Dallas 2008, no pet.). The elements required for formation of a

valid contract are 1) an offer, 2) 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. Thornton v. AT&T Adver., L.P., 390

S.W.3d 702, 705 (Tex. App.—Dallas 2012, no pet.). The material terms of a contract must be

agreed upon before a court can enforce a contract. T.O. Stanley Boot Co. v. Bank of El Paso, 847

S.W.2d 218, 221 (Tex. 1992); Effel v. McGarry, 339 S.W.3d 789, 793 (Tex. App.—Dallas 2011,

pet. denied).

       In proving up their default judgment, appellees presented various contracts with third

parties in support of their damages, including contracts for security, bouncers, models, DJs, and a

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photographer at the event. They did not, however, produce any substantive testimony about the

formation of the contract with Iverson or its material terms. Moreover, they did not introduce the

alleged written contract between them and Iverson’s agent that is the basis for their lawsuit.

Jasmine Aponte, who does business as appellee Dolce Marketing Group, was asked if, on about

January 13, 2010, she and appellee DG1 had cause to enter into a contract for the personal

services of Iverson. She replied in the affirmative. Aponte stated that appellees put up money to

have Iverson appear at a party in Dallas during the NBA All Star weekend. She further stated

that, “in order to get the contract going,” appellees deposited $12,500 into Pennington’s account.

          There was no testimony about how the alleged contract with Iverson, signed by his agent

Moore, came to be formed or what its material terms were. We conclude there is no more than a

scintilla of evidence to show that a valid contract for Iverson’s services existed. Cf. Williams v.

Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 236 (Tex. App.—Houston [1st

Dist.] 2008, no pet.) (in suit for breach of credit agreement, where no copy of credit agreement

was submitted, summary judgment was improper because evidence was insufficient to establish

terms of valid contract as matter of law).

          In addition to their contract claim, appellees alleged that Iverson committed fraud and

fraud in the inducement by fraudulently inducing appellees to enter into the contract knowing it

would not be performed. Appellees further asserted Iverson made false statements to them in an

effort to conceal the actual status of his appearance. 1 The elements of appellees’ fraud claim are:

a material misrepresentation, which was false, and which was either known to be false when

made or was asserted without knowledge of the truth, which was intended to be acted upon,

which was relied upon, and which caused injury. DeSantis v. Wackenhut Corp., 793 S.W.2d

     1
       In their pleadings, appellees make this allegation under an enumerated cause of action for “fraudulent concealment.” Fraudulent
concealment is an affirmative defense to statutes of limitations and not an independent cause of action. Carone v. Retamco Operating, Inc., 138
S.W.3d 1, 10 (Tex. App.—San Antonio 2005, pet. denied).



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670, 688 (Tex. 1990). Fraudulent inducement is a species of fraud that arises in the context of a

contract; the elements of fraud must be established as they relate to a contract between the

parties. Brauss v. Triple M Holding GmbH, 411 S.W.3d 614, 622 (Tex. App.—Dallas 2013, pet.

denied). A plaintiff cannot assert a fraudulent inducement claim when there is no contract.

Haase v. Glazner, 62 S.W.3d 795, 800 (Tex. 2001).

       Appellees’ fraud claims are predicated on the existence of a valid contract between them

and Iverson. As appellees did not prove the existence of a valid contract, there is legally

insufficient evidence to support a finding that Iverson is liable for fraud in connection with the

contract. In addition, there is no evidence that any misrepresentations made were known to be

false when made or were asserted without knowledge of the truth.             Because we conclude

appellees did not present legally sufficient evidence to establish Iverson’s liability for either of

the causes of action they alleged, we resolve Iverson’s fourth issue in his favor.

       We reverse the trial court’s default judgment against Iverson and remand appellees’

causes of action against him to the trial court for further proceedings. In all other respects, we

affirm the trial court’s judgment.




                                                      /Ada Brown/
                                                      ADA BROWN
                                                      JUSTICE

121230F.P05




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                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

ALLEN IVERSON, Appellant                             On Appeal from the 44th Judicial District
                                                     Court, Dallas County, Texas
No. 05-12-01230-CV          V.                       Trial Court Cause No. DC-10-06058.
                                                     Opinion delivered by Justice Brown.
DOLCE MARKETING GROUP AND DG1                        Justices Moseley and Lang participating.
ENT, LLC, Appellees

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED in part and REVERSED in part. We REVERSE the trial court's default judgment
against appellant Allen Iverson and REMAND appellees' causes of action against Iverson to the
trial court for further proceedings consistent with this opinion. In all other respects, the trial
court's judgment is AFFIRMED.

       It is ORDERED that appellant ALLEN IVERSON recover his costs of this appeal from
appellees DOLCE MARKETING GROUP AND DG1 ENT, LLC.


Judgment entered this 28th day of March, 2014.




                                                     /Ada Brown/
                                                     ADA BROWN
                                                     JUSTICE




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