Opinion
NO. 03-16-00022-CV
03-30-2018
Vladimir Vaschenko, Appellant v. Novosoft, Inc.; Philip Brenan; and Patricia Eure, Appellees
ON MOTION FOR REHEARING
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. D-1-GN-11-002883 , HONORABLE ORLINDA NARANJO, JUDGE PRESIDING MEMORANDUM OPINION
We withdraw the opinion and judgment dated January 26, 2018, and substitute the following opinion and judgment in their place. We deny appellant's motion for rehearing.
This case arises out of a business relationship between appellant Vladimir Vaschenko, a Russian citizen, and appellees Novosoft, Inc., Philip Brenan, and Patricia Eure (collectively, Novosoft). We must first decide which of two purportedly final judgments rendered within the trial court's period of plenary power—a sanctions-based dismissal order and a summary judgment—is the operative final judgment. Because we conclude that the summary judgment is the operative final judgment, we must next decide whether the trial court erred in granting summary judgment in favor of Novosoft on the basis of limitations. For the following reasons, we will affirm.
BACKGROUND
In 1992, Vaschenko and Brenan began a business relationship to provide computer-software services to clients in Russia and the U.S. In 2003, the relationship deteriorated, and litigation ensued between the parties in Russia. In September 2011, Vaschenko filed suit in the present case, alleging various causes of action against Novosoft. In October 2015, Novosoft filed a motion for summary judgment claiming that Vaschenko's claims were barred by applicable statutes of limitations, which the trial court heard and took under advisement. Before the trial court ruled on that motion, Novosoft filed a motion for death-penalty sanctions seeking dismissal of the case for discovery abuse, which the court granted, dismissing all of Vaschenko's claims with prejudice. The following day, however, the court granted Novosoft's motion for summary judgment, which also purported to dismiss all of Vaschenko's claims. Vaschenko has appealed from both purportedly final judgments.
DISCUSSION
In six issues on appeal, Vaschenko challenges the dismissal order and underlying discovery order and argues that the summary judgment was granted in error.
I. Which of two purportedly final judgments rendered during a trial court's period of plenary power is the operative final judgment?
A. Procedural background
The first issue we must decide is whether the sanctions-based order of dismissal or the summary judgment—both rendered during the trial court's period of plenary power—is the final, appealable judgment that we may review on appeal. Relevant to that issue are the procedural events that gave rise to the two judgments:
| 10/19/15 | Novosoft files a motion for summary judgment |
| 11/12/15 | Judge Orlinda Naranjo hears Novosoft's motion for summaryjudgment and takes the motion under advisement |
| 11/24/15 | Novosoft files a motion for death-penalty sanctions seeking dismissalof the case based on Vaschenko's failure to appear for a court-ordereddeposition |
| 12/10/15 | Judge David Phillips hears Novosoft's motion for death-penaltysanctions and grants it that day, dismissing the case with prejudice |
| 12/11/15 | Judge Naranjo grants Novosoft's motion for summary judgmentagainst Vaschenko on all of his causes of action against Novosoft |
The parties did not seek clarification from the trial court as to which judgment was the operative final judgment. On January 11, 2016, Vaschenko filed a notice of appeal in which he appealed from both the December 10 dismissal order and the December 11 summary judgment.
The deadline for filing a notice of appeal from both the dismissal order and the summary judgment was January 11, 2016, and, consequently, Vaschenko timely perfected appeal as to both judgments. Therefore, the determination as to which judgment survives in this case does not implicate the appellate timetables and whether appeal was timely perfected as to either judgment.
B. The parties' arguments
The parties agree that both the December 10 dismissal order and the December 11 summary judgment purport to be (and substantively could be) final judgments. However, there can be only one operative final judgment in a cause. See Tex. R. Civ. P. 301; Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 562 (Tex. App.—San Antonio 1998, pet. denied). Thus, when a trial court purports to render two final judgments in a case, only one can survive. See Quanaim v. Frasco Rest. & Catering, Frasco, Inc., 17 S.W.3d 30, 37 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
Vaschenko argues that the December 10 dismissal order survives because it was rendered first and the record does not show that it was ever vacated. Novosoft argues that the December 11 summary judgment implicitly vacated the dismissal order because it was rendered during the court's period of plenary power. For the following reasons, we conclude that the summary judgment is the operative final judgment.
C. The evolution of the rule regarding multiple "final" judgments
In Mullins v. Thomas, the Texas Supreme Court observed that "the rule is well settled that the entry of a second judgment in the same case is not a vacation of the first, and that if there is nothing to show the first was vacated, the second is a nullity." 150 S.W.2d 83, 84 (Tex. 1941). In other words, the original rule was that entry of a second final judgment did not implicitly vacate a prior final judgment unless the record showed that the trial court had expressly vacated the prior judgment. Id.
Thirty years later, however, the court relaxed the Mullins rule requiring express vacatur. In City of West Lake Hills v. State, the court was confronted with a second "final" judgment rendered during the trial court's period of plenary power under Texas Rule of Civil Procedure 329b that did not expressly vacate its first final judgment. 466 S.W.2d 722, 726-27 (Tex. 1971). The Court held that the second judgment implicitly vacated the first judgment because the second judgment, which was headed "Corrected Final Judgment," showed "that it [was] replacing the first one." Id.; see B & M Mach. Co. v. Avionic Enters., Inc., 566 S.W.2d 901, 902 (Tex. 1978) (per curiam) ("The record reflects that the second judgment," headed "Amended Judgment" and rendered during plenary period, "reformed and, in effect, vacated the first judgment.").
Mullins and City of West Lake Hills predated Rule 329b(h), which extended the appellate timetables "[i]f a judgment is modified, corrected or reformed in any respect." In that event, the time for appeal then runs from the date "the modified, corrected, or reformed judgment is signed." Tex. R. Civ. P. 329b(h). After the passage of that provision, the supreme court held that "any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the commencement of the appellate timetable until the date the modified, corrected or reformed judgment is signed." Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988) (per curiam). In Check, the second judgment "varied from" the first judgment by a changed docket number and additional language reflecting a severance order and denying all other relief. Id. at 755-56. The Court held that the appellate timetables ran from the signing of the second judgment. Id. at 756. Check relied solely on Rule 329b(h), did not discuss vacatur or the judicial-intent inquiry, and did not expressly overrule (or even mention) Mullins or City of West Lake Hills. See id. at 755-56.
Some courts since Check have at least tacitly held that a second judgment rendered during the plenary period that differs in any way from a first judgment implicitly vacates the first judgment without discussion of judicial intent. See Alford v. Whaley, 794 S.W.2d 920, 922 (Tex. App.—Houston [1st Dist.] 1990, no writ) (second judgment restarted appellate timetable even though neither the second judgment nor the record indicated that the first judgment had been vacated and only change to judgment was addition of the word "unsuccessful" before the word "appeal"); Wang v. Hsu, 899 S.W.2d 409, 411 (Tex. App.—Houston [14th Dist.] 1995, writ denied) (presumed vacatur where no evidence existed as to why court rendered second judgment and judgments were identical except for entry date). But other courts have concluded that Check did not overrule Mullins and West Lake and have held that a later judgment does not implicitly vacate a prior judgment unless the record "show[s] that the trial court intended to vacate the first judgment and replace it with the second judgment." Azbill v. Dallas Cty. Child Protective Servs., 860 S.W.2d 133, 138-39 (Tex. App.—Dallas 1993, no writ) (holding no vacatur where record did not show intent to vacate and instead showed trial court affirmatively intended for first judgment to remain in effect); Woosley v. Smith, 925 S.W.2d 84, 87-88 (Tex. App.—San Antonio 1996, no writ) (same).
D. This Court's interpretation: Presumptive vacatur and the "contrary intent" exception
This Court examined the issue in Owens-Corning Fiberglas Corp. v. Wasiak, a case on which Novosoft primarily relies. See 883 S.W.2d 402, 409-11 (Tex. App.—Austin 1994, no writ). In that case, the trial court had rendered a final judgment and then, six days later, rendered a second final judgment. The two judgments were identical except for the signature date. Id. at 404. The appeal was untimely under the first judgment but timely under the second judgment. Id. We were thus tasked with deciding which was the final judgment as was necessary to calculate the appellate timetables. See id.
We determined whether the second judgment implicitly vacated the first judgment where the only change was the date of entry discussing Mullins and Check. Id. In an effort to reconcile those cases, we held that "any change in a judgment made by the trial court during its period of plenary power should be treated as a modified, corrected, or reformed judgment that presumptively vacates the trial court's former judgment unless the record indicates a contrary intent." Id. at 411. We then concluded that because "[n]othing in the record indicates that the trial court did not intend to vacate" the original judgment, the second judgment "implicitly vacated" the original judgment. Id. The rule we set forth in Owens-Corning, therefore, is that a second judgment implicitly vacates a first judgment unless the record shows that the trial court did not intend to vacate the first judgment. See id.
We also observed that a second judgment may not vacate a prior judgment if "a trial court renders [a second judgment] simply affirming a former judgment . . . during its period of plenary power but after the time to file a motion for new trial or perfect an appeal has expired and the record indicates that the sole purpose of the order was to extend the appellate timetables." Owens-Corning Fiberglas Corp. v. Wasiak, 883 S.W.2d 402, 410 (Tex. App.—Austin 1994, no writ) (citing Anderson v. Casebolt, 493 S.W.2d 509, 510 (Tex.1973)). That prohibition is inapplicable to the present case because the summary judgment did not simply reaffirm the dismissal order and the record does not indicate that the sole purpose of the summary judgment was to extend the appellate timetables.
E. The summary judgment is the final judgment in the present case
Under Owens-Corning, the present case requires us to determine whether the December 11 summary judgment implicitly vacated the December 10 dismissal order or whether "the record indicates a contrary intent." See id. Novosoft argues that "[n]othing in Judge Naranjo's December 11, 2015 summary judgment order or in the record indicates that the trial court did not intend to vacate the December 10, 2015 dismissal order." Vaschenko correctly argues that "none of the cases [Novosoft] cite[s] in support of [its] argument concerned separate orders dealing with separate dispositive grounds signed by separate judges in which neither order expressly nor impliedly referenced the other" and that Judge Naranjo's summary judgment did not "purport to invoke the plenary power provided for in [Rule] 329b(d)." Tacit in Vaschenko's argument seems to be that Judge Naranjo's summary judgment did not implicitly vacate Judge Phillip's dismissal order because the record shows that Judge Naranjo did not intend to vacate—and likely was not even aware of—Judge Phillip's dismissal order.
One case Novosoft cites is Quanaim v. Frasco Restaurant & Catering, Frasco, Inc., which we conclude is analogous to the present case. See 17 S.W.3d at 39-40. There, the appellee had filed three separate motions for summary judgment, each of which sought dismissal of the case on independent grounds. Id. at 34. The trial court rendered a summary judgment that disposed of all the parties and claims on one ground, but six days later, rendered another summary judgment that disposed of the case on a different ground. Id. at 34-35. The appellate court observed that because nothing in the record suggested, "by inference or otherwise, that the trial court vacated" the first judgment," the appellate court "must infer from the [trial] court's mere entry of the [second] judgment, and from this event alone, that the trial court intended to vacate, modify, correct, or reform the [first] judgment." Id. at 39.
The Quanaim court noted that Owens-Corning "essentially turn[ed] the Mullins test for intent upside down. Instead of requiring the record to affirmatively show the trial court's intent to vacate, modify, correct, or reform, the judgment, Owens-Corning presumes such an intent unless the record reveals otherwise." Id. at 38-39. It concluded that the identification of a different ground for summary judgment was a sufficient "change" to the first judgment to constitute a "modification, correction, or reformation" of that judgment under Rule 329b, thereby presumptively vacating the first judgment. Id. at 40 (citing Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310-11 (Tex. 2000)). Implied in its holding was that the record did not demonstrate that the trial court did not intend to vacate the previously rendered summary judgment, i.e., "a contrary intent." See id.
In the present case, similarly, the disposal of the case by summary judgment is unquestionably a "change" to the first judgment, which had disposed of the case on the basis of discovery abuse. See id. Further, as in Quanaim, nothing in the record shows that Judge Naranjo expressly vacated the dismissal order and, pursuant to Owens-Corning, we infer from the entry of the summary judgment that she intended to vacate, modify, correct, or reform the dismissal order unless the record shows a contrary intent, which it does not. See id. at 39; Owens-Corning, 883 S.W.2d at 411. In light of the case law previously discussed, we cannot conclude that the facts Vaschenko cites—that the two judgments disposed of the case on different grounds and were rendered by different judges—are sufficient to demonstrate that the trial court did not intend to vacate the first judgment for the following reasons.
First, we do not conclude that the fact that the summary judgment disposed of the case on a different ground from the dismissal order demonstrates that the trial court did not intend to vacate the dismissal order. A trial court has virtually unlimited discretion to modify a judgment in any manner during its period of plenary power. See Anderson, 985 S.W.2d at 562 (during plenary period, trial court may "alter its judgment in virtually any respect"). In Quanaim, as discussed, the trial court rendered two judgments that disposed of the case on entirely different grounds. 17 S.W.3d at 34 (first judgment disposed of case as barred by exclusive-remedy provision and second judgment disposed of case on premises-liability ground). But the Quanaim court nevertheless implicitly concluded that the record did not reveal an intent to not vacate the first judgment sufficient to overcome the presumption of intent. See id. at 39-40; see also Williams v. Tyra, No. 06-06-00118-CV, 2007 WL 1648785, at *1 (Tex. App.—Texarkana June 8, 2007, no pet.) (mem. op.) (trial court dismissed case for want of prosecution then disposed of case by summary judgment later that day; holding summary judgment survived, despite no express vacatur of prior dismissal order).
Second, Texas law authorizes district judges to "exchange districts, or hold court for each other," Tex. Const. art V, § 11, and "allows judges to sit for one another whenever they choose." In re Schmitz, 285 S.W.3d 451, 454 (Tex. 2009). Pursuant to that authority, Travis County maintains a central, rotating docket system, in which cases are not assigned to a single judge. Consequently, all motions filed in a given case (including dispositive motions) may be heard and decided by different judges. See Travis Cnty. (Tex.) Dist. Ct. Local R. 1.2, 1.3. Vaschenko has cited no authority, and we have found none, that limits the discretion of a trial judge sitting in a central-docket system to vacate a judgment rendered by a different judge within the trial court's period of plenary power. In the absence of such authority, we conclude that we must apply the Owens-Corning rule, namely, that a second judgment implicitly vacates a first judgment unless the record shows that the trial court did not intend to vacate the first judgment. See 883 S.W.2d at 411. Because the record here is silent with respect to the trial court's intent, we must presume that the trial court intended to vacate the dismissal order. See id.; cf. Azbill, 860 S.W.2d at 138-39 (holding first judgment not vacated where record showed that trial court intended for first judgment to remain in effect); see also Woosley, 925 S.W.2d at 87-88 (same). We thus conclude that the dismissal order was vacated and the summary judgment is the final, appealable judgment.
We note that the record suggests that Judge Naranjo may have been unaware that Judge Phillips had disposed of the case the day before she rendered her summary judgment. This case may be uniquely the result of the Travis County central-docket system. However, until the Texas Supreme Court unequivocally dispenses with any judicial-intent inquiry as to whether a subsequent final judgment rendered during a trial court's period of plenary power implicitly vacates a prior final judgment or, alternatively, revives the Mullins rule requiring express vacatur, we are bound by the court's reasoning. The best practice under these circumstances, time permitting, might be for a party to file a motion seeking clarification from the trial court regarding a prior judgment. See Texas Employers Ins. Ass'n v. Rivera, 673 S.W.2d 690, 691 (Tex. App.—Austin 1984, no writ) (construing motion to clarify judgment as "'a motion to modify, correct, or reform a judgment,' within the meaning of [Rule] 329b(g)").
We note that other cases involving presumptive vacatur are factually distinguishable in that the records readily supported a presumption of intent to vacate because, for example, the second judgment referenced or made minor changes to the first judgment or was rendered on a Rule 329b motion to modify the first judgment. See, e.g., Burnett v. Vo, No. 02-14-00297-CV, 2015 WL 5097994, at *4 (Tex. App.—Fort Worth Aug. 28, 2015, pet. denied) (mem. op.); SLT Dealer Grp., Ltd. v. AmeriCredit Fin. Servs., Inc., 336 S.W.3d 822, 832 (Tex. App.—Houston [1st Dist.] 2011, no pet.); Abercia v. Kingvision Pay-Per-View, Ltd., 217 S.W.3d 688, 706 (Tex. App.—El Paso 2007, pet. denied); Ott v. Touchstone, No. 14-04-00517-CV, 2005 WL 2420376, at *2-3 (Tex. App.—Houston [14th Dist.] Aug. 25, 2005, no pet.) (mem. op.); Price Constr., Inc. v. Castillo, 147 S.W.3d 431, 441 (Tex. App.—San Antonio 2004, pet. denied); Crown Constr. Co. v. Huddleston, 961 S.W.2d 552, 560 (Tex. App.—San Antonio 1997, no pet.).
Because the summary judgment vacated the dismissal order, the dismissal order will not merge into or "supplement" the summary judgment. See Quanaim v. Frasco Rest. & Catering, Frasco, Inc., 17 S.W.3d 30, 40 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).
Because the December 10 order of dismissal was vacated, we lack jurisdiction to review Vaschenko's appeal from that order and dismiss his appeal from that order. See Tex. Civ. Prac. & Rem. Code § 51.012 (party may appeal from final judgment); see also In re C.N., 313 S.W.3d 490, 493 (Tex. App.—Dallas 2010, no pet.) (dismissing appeal from vacated judgment for lack of jurisdiction). We thus do not reach Vaschenko's second and third issues, which challenge that order.
Having determined that the summary judgment is the final, appealable judgment, we now turn to Vaschenko's issues challenging that judgment.
II. Vaschenko did not preserve his issues challenging the summary judgment
In his fourth, fifth, and sixth issues, Vaschenko argues that the trial court erred in granting Novosoft's motion for traditional summary judgment on the basis that his claims are barred by limitations because, he argues, the partnership between him and Brenan has not terminated. In support, he cites provisions in the Texas Business Organizations Code regarding formation and termination of partnerships and summary-judgment evidence that he argues shows that the partnership never terminated. He contends that, because the partnership continues to exist, limitations does not bar his action "to enforce his continuing contractual right[s]." He further argues that because the partnership is ongoing, Brenan owes him fiduciary duties, and then details the ways in which Brenan allegedly violated those duties.
On appeal, Vaschenko does not dispute that any alleged breach by Brenan occurred as early as 2003. As Vaschenko states in his brief, "[i]n 2003, Vaschenko and Brenan had a falling out. Brenan stopped forwarding 90% of the sales revenue to Vaschenko and caused Novosoft, Inc. to retroactively revoke Vaschenko's power of attorney. With Eure's assistance, Brenan instigated a series of criminal and civil actions in Russia seeking to set aside transfers of various assets that Novosoft, Inc. and Vaschenko had made." Rather, Vaschenko argues on appeal that the limitations applicable to his causes of action have not yet run because, he contends, his and Brenan's partnership still exists and thus he may seek "to enforce his continuing contractual right[s]" against Brenan.
Novosoft argues that Vaschenko waived those arguments because he did not raise them in his summary-judgment response below, which advanced different defenses to limitations: continuing-tort doctrine, fraudulent concealment, and a policy argument regarding staleness. Vaschenko contends that his arguments below sufficiently apprised the trial court of his appellate arguments relating to a continuing partnership relationship.
A. The fair-apprisal summary-judgment requirement
"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). The Texas Supreme Court has interpreted this provision to mean that a non-movant's failure to present an issue to defeat summary judgment to the trial court waives the issue on appeal. See D.R. Horton-Tex., Ltd. v. Markel Int'l Ins. Co., 300 S.W.3d 740, 743 (Tex. 2009); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). To expressly present issues to the trial court, "the 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 v. Bank One, N.A., 218 S.W.3d 109, 119 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (internal quotations omitted). The fair-apprisal requirement "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.
B. Vaschenko did not fairly apprise the trial court of the argument he now raises on appeal
In his reply to Novosoft's waiver argument on appeal, Vaschenko contends that "[t]he partnership's existence, the legal duties it imposes and which arise from it, and Appellees' breach of those legal duties are set forth in Vaschenko's summary-judgment response and his third amended petition, which Appellees' [sic] introduced . . . as summary judgment evidence." However, arguments that "a non-movant contends avoid the movant's entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence." McConnell, 858 S.W.2d at 341; see also Tello, 218 S.W.3d at 118-19 (issues defeating summary judgment must be expressly alleged in summary-judgment response). Thus, Vaschenko did not apprise the trial court of his argument by merely referring to Novosoft's summary-judgment evidence.
Furthermore, it is not apparent how Vaschenko's third amended petition supports his claim on appeal that Brenan's alleged continuous breach of fiduciary duties avoids Novosoft's limitations defense. On appeal, Vaschenko argues that "[t]he factual and legal basis for Vaschenko's breach of contract, fiduciary duty, fraud, and declaratory judgment claims against Appellees is the oral partnership between Vaschenko and Brenan." But the mere fact that the alleged existence of a partnership underpinned Vaschenko's causes of action was insufficient to apprise the trial court, in a summary-judgment proceeding regarding the applicability of limitations, of his specific appellate argument that the limitations period was tolled because the partnership was never terminated. See Tello, 218 S.W.3d at 119-20 (rejecting argument that appellant's "bare averment in his attached affidavit" of a particular fact sufficed to apprise trial court of why the fact affected appellees' entitlement to summary judgment).
Vaschenko also argues that his "response expressly refers to the oral partnership, the partnership agreement, or the partnership terms at least twelve (12) times" and that his response "impliedly refers to the partnership and the legal duties arising from it." But summary-judgment arguments must be express and not implied, see Tex. R. Civ. P. 166a(c); Tello, 218 S.W.3d at 119-20, and Vaschenko's references to the existence of a partnership at some point in time are not an express argument that (1) the partnership is ongoing and (2) continuous breaches by Brenan of his duties arising from that ongoing partnership tolled the limitations period.
Vaschenko further contends in his appellate reply brief that his summary-judgment response asserted that (1) "the contractual and fiduciary duties arising from the partnership are continuing and that Brenan continues to breach those duties by and through Novosoft, Inc. and with Eure's assistance," and (2) the doctrine of fraudulent concealment "prevented granting Appellees' summary judgment motion because of Brenan's fiduciary duty to speak, i.e., to make full disclosure to Vaschenko of all matters affecting the partnership and its affairs." But the record does not support those contentions. Rather, Vaschenko's summary-judgment response argued only that Brenan and Eure had "actively conspired against Vaschenko to benefit from his work and worked in concert to keep him from discovering the steps they took to break his company apart into various new entities." He asserted that Brenan and Eure "conspired with the remaining corporate defendants to deconstruct Vaschenko's life work and hide it within said entities." And the factual basis he cited in support of his theories was Novosoft's alleged use of the Russian court system to wrongfully deprive him of his assets.
Unlike his arguments on appeal, therefore, Vaschenko's summary-judgment response did not expressly claim that the partnership was ongoing or cite any authority or evidence supporting that proposition; it did not mention any duties—fiduciary or otherwise—that arose from any such ongoing partnership; it did not provide summary-judgment evidence showing that Brenan had continuously breached any such duties of an ongoing partnership; and it did not explain how any such breaches would avoid Novosoft's limitations defense relative to the date Vaschenko filed suit. Prior to his brief replying to Novosoft's waiver argument, the only instance in which Vaschenko attempted to link his continuing-tort theory to a breach-of-fiduciary-duty theory, below or on appeal, was in his opening appellate brief. In a footnote, he argues that the limitations period for breach-of-fiduciary-duty claims is four years but that the limitations period "may be extended by the continuing torts doctrine, which Vaschenko has pleaded." But because his summary-judgment response did not analyze or connect his continuing-tort theory to the ongoing-partnership/breach-o-fiduciary-duty theory that he has advanced in detail on appeal, we cannot conclude that his arguments below fairly apprised the trial court of the arguments he presents on appeal so that the trial court could consider those arguments.
Vaschenko also points to evidence he produced in response to Novosoft's later-filed no-evidence motion for summary judgment that he claimed demonstrated Brenan's repeated breaches of fiduciary duties owed to Vaschenko and to the partnership. However, he did not cite that evidence in his summary-judgment response in support of the argument he raises on appeal, and, even if he had, arguments defeating summary judgment must be expressly presented by written response and not by mere reference to summary-judgment evidence. See McConnell, 858 S.W.2d at 341; Tello, 218 S.W.3d at 118-19 (issues defeating summary judgment must be expressly alleged in summary-judgment response). Further, Vaschenko asserts that Novosoft's no-evidence motion for summary judgment and Vaschenko's related objections were not heard or reached by the trial court.
This case is similar to Macias v. Gomez, in which Macias, the majority interest member of an LLC, sued the minority interest members of the LLC, asserting breach-of-fiduciary-duty and conspiracy claims. See No. 13-14-00139-CV, 2014 WL 7011372 (Tex. App.—Corpus Christi Dec. 11, 2014, no pet.) (mem. op.). In his summary-judgment response, Macias claimed that the minority-interest members owed him a fiduciary duty because of their status as minority members of the LLC, which the trial court rejected. Id. at *3. On appeal, he again raised that argument and further argued that the minority-interest members owed him a fiduciary duty because they had exercised control over the LLC. Id. at *2. In his brief in reply to the minority-interest members' waiver argument, Macias urged that an affidavit that he had introduced as summary-judgment evidence "relate[d] to issues of control" and thus sufficiently apprised the trial court of his control argument. Id. at *3. The appellate court disagreed and held that because Macias had "made no argument in his response and no statement in his affidavit that . . . [the minority-interest members] controlled the LLC in a manner that created a fiduciary duty between the members of the LLC," he had not preserved that argument for appeal. Id. at *3-4.
Here, similarly, Vaschenko argued in his summary-judgment response that the limitations period had tolled because of the continuing-tort doctrine, fraudulent concealment, and because his claims were not stale. His response did not apprise the trial court of his appellate argument that limitations had tolled because of alleged breaches of fiduciary duties arising from an allegedly still ongoing partnership between him and Brenan. See id.; see also Houston Poly Bag I, Ltd. v. Kujanek, 370 S.W.3d 82, 93-94 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that the breach-of-fiduciary-duty claim raised at trial did not preserve the continuing-tort defense raised on appeal); Dubose v. Worker's Med., P.A., 117 S.W.3d 916, 920 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (patient waived argument that she had a physician-patient relationship with defendant based on fact that he had previously treated her years earlier where she never mentioned that fact in her summary-judgment response). Rather, Vaschenko's summary-judgment response argued that in 1998, he and Brenan "continued to operate the business pursuant to the 90%-10% partnership agreement, only now under the American corporation." Because Vaschenko's summary-judgment response failed to cite the relevant facts or law applicable to the alleged partnership formation and its continued existence; describe any related duties or continuous breaches of those duties; or explain the effect of any such breaches on the limitations period for any cause of action, the factual and legal bases of his appellate theories were not presented as required below. Consequently, any defenses to limitations based on those theories have been waived. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988) ("A defendant who has established that the suit is barred cannot be expected to anticipate the plaintiff's defenses to that bar. A matter in avoidance of the statute of limitations that is not raised affirmatively by the pleadings will, therefore, be deemed waived."); see also Tello, 218 S.W.3d at 118-19 (holding that appellant had failed waived issues he presented on appeal by failing to expressly present them in his summary-judgment response). We cannot review arguments of which Vaschenko did not apprise the trial court. See D.R. Horton-Tex., Ltd., 300 S.W.3d at 743.
We note that even if Vaschenko had presented those arguments to the trial court, he does not explain how, or cite facts supported by the record demonstrating that, the continued existence of a partnership would support his continuing-tort defense to limitations. See Tex. Civ. Prac. & Rem. Code § 16.004(5) (breach of fiduciary duty subject to four-year limitations period); Tex. Bus. Orgs. Code § 152.221(c) (statute governing partnership remedies does not expand applicable limitations); Maxson v. Travis County Rent Account, 21 S.W.3d 311, 320 (Tex. App.—Austin 1999, pet. dism'd) (cause of action accrued "when partners knew of the transactions that serve as the foundation for the alleged breaches of fiduciary duty").
Vaschenko further asserts that Novosoft was not entitled to summary judgment on Vaschenko's claim for a declaratory judgment regarding his ownership interest in Novosoft, Inc. because, he contends, Novosoft failed to conclusively prove that Brenan is the sole owner of Novosoft, Inc. However, Novosoft also moved for summary judgment against Vaschenko's declaratory judgment action on the ground that it is barred by limitations. Because Vaschenko has raised no argument on appeal that his declaratory judgment action is not barred by limitations independent of the arguments that we have concluded were waived, we do not reach the merits of his declaratory judgment action.
We now turn to the general continuing-tort allegation that Vaschenko did raise in his response to Novosoft's motion for traditional summary judgment. The allegedly tortious conduct that seems to form the basis of his defense are (1) Novosoft's use of the Russian legal system to deprive him of assets, (2) that Brenan and Eure "deconstruct[ed] the business that Vaschenko had set-up into" various independent companies, and (3) that those companies are selling software he and Brenan developed to Vaschenko's clients. However, Vaschenko fails to demonstrate how any such conduct constitutes tortious conduct that would support a continuing-tort defense to limitations. See Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 587-88 (Tex. App.—Austin 2007, pet. denied) ("Texas Disposal has not offered any authority, nor have we found any, that broadens the continuing tort doctrine to include actions based on defamation, tortious interference, or tortious acts that are intermittent and irregular in nature. Rather, our research has revealed only contrary authority.").
Vaschenko's appellate briefing does not raise the staleness defense he presented below and contains only passing references to any alleged fraudulent concealment. An appellant may not assert an issue or list of issues that could support relief but must also present arguments, supported with citations to legal authority and to the record, to demonstrate his or her entitlement to reversal. See McCoy v. Rogers, 240 S.W.3d 267, 272 (Tex. App.—Houston [1st Dist.] 2007, pet. denied). Issues that are not supported by argument, citations to authority, or citations to the record do not preserve error for review. Murphy v. Mullin, Hoard & Brown, L.L.P., 168 S.W.3d 288, 293 (Tex. App.—Dallas 2005, no pet.). We thus will not review those issues.
We conclude that Vaschenko has failed to demonstrate that the trial court abused its discretion in granting summary judgment in favor of Novosoft. We overrule his fourth, fifth, and sixth issues.
CONCLUSION
We affirm the summary judgment of the trial court in favor of Novosoft. We dismiss Vaschenko's appeal from the vacated order of dismissal for lack of jurisdiction.
/s/_________
Cindy Olson Bourland, Justice Before Chief Justice Rose, Justices Goodwin and Bourland Affirmed in Part; Dismissed in Part on Motion for Rehearing Filed: March 30, 2018