### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00674- CV

Mark Sm ith d/ b/a Design Center, Appellant

v. Autodesk, In c. and Christoph er S. Canada En ter prises, Inc. d/b /a

On-Si te C om puter Solution s, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0201 0, H ONO RAB LE LO RA J. LI VINGSTO N, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

This is an appea l from a final summary j u d gment decla ring that Mark Smit h d/b/a Desig n Center take n o t h i n g b y his claims ag ainst Autodesk, Inc. and Christopher S. Canada Enterpr ises, Inc. d/b/a On-Site Computer Soluti ons (“O n-Site”) for failing to proper ly diag nose and

re m ed y technica l problems with his computer softwar e and sy stem. We will aff irm th e t ri al court’s judg ment.

F ACTUAL AND P ROCEDURAL BACK GR OUND

Desig n Ce n t er i s an interior-de sign business in Austin, Texas. On April 2, 2007, Desig n Center contac ted On-Site, an information-tec hnolo gy s er v i ce provider, to chang e Desig n Center’ s computer passwords in ad v ance of Smit h’s plan to terminate the employ ment of Kevin Knippa, Desig n Center’ s in-house co m puter-ne tworking consultant. On-Site responde d tothe s ervic e request t he same day and chang ed the passwords to help prevent Knippa from g aining

acc ess to Desig n Center’ s computer sy stem. Be fore responding to the service call, howeve r, On-Site confirme d the nature of the ser vice r equest via a

n email re sponse to Desig n Center, which Knippa saw the e veningbefor e his employ ment was ter

minated on April 3, 2007. 1 After Knippa’s termination, On-Site provided info rm at i on technolog y consulting

s er v i ces to Desig n Center on an on-ca ll basis and beg an assisting Smit h and Desig n Cent er wi t h computer networking problems they wer e experiencing , as well as problems using their AutoCAD softwar e; it is undisputed that Desig n Center’ s AutoCAD issues predated On -Site’s initial eng ag ement on April 2, 2007. In order to solve the problems Smit h and Desig n Center wer e having 2 with the AutoC AD software, Desig n Center employ ed On-Sit e t o coordinate t he communications

A computer- g ener ated email confirming the service req uest was automatically sent to a 1 Desig n Center g ener al email addr ess and summarized the se rvice reque st as follows: We rec eived your re quest for suppor t and under stand its urg ency . On-Site strives t o ad d re s s all reque sts in a timely manner . An On-site Consultant will contact you shortly

to confirm the status and sc hedule f or re solution.

. . . . Amber e mailed: Please call him [S mith] asap. He is letting g o of his employ ee that has curr ently been helping /maintaining his network. He wants us to come in and chang e all passwords, setup secur ity , etc.. [ sic] ag ain l ike we ha d it before . He doe sn’t mind paying a fter hour’s rate [sic] . Old client that we ha ven’t done any

thing f or since B rian W. Knippa stated in an aff

idavit that he had rea d the email the afte rnoon befor e his employ ment was ter minated. AutoCAD is a computer- assisted draf ting and d es i gn softwar e prog ram with multipl e 2 applications. I t was used by Smit h and De sign Cente r for building and inter ior desig n. 2among Desig n Center, Autodesk (the softwar e publisher and licensor) , and D.C. Cadd Company (the

softwar e distributor). Smit h testified that Desig n Center eng ag ed On-Site mere ly to act as a liaison with these companies and expected the softwar e publisher or distributor to solve the problems with AutoCAD. Autodesk provide d remote trouble shooting in re sponse to D esig n Center’ s web- based and telephone support reque sts.

Desig n Center used On

- Si te ’ s s e r v ic es until J une 3, 2007; there afte r, Br ian Wachhaus

was hired to repla ce On-Site. At that time, the AutoCAD softwar e was still not working to Smit h’s satisfac tion, and Wachhaus continued to work with Autodesk and D .C. Cadd Company to resolve the issu es v i a re m o t e troubleshooting. I t took an additional two months befor e the problem was resolved to Smit h’s satisfac tion. Wachhaus eventua lly conclude d that a computer virus or wo rm probably cause d the AutoCAD problems. 3 Meanwhile, in July 2007, Smit h sued Knippa, alleg ing that he had misappropriate d

or destroy ed Desig n Center’ s confide ntial and trade -sec ret information and improperly acc essed and tampere d with Desig n Center’ s AutoCAD sy stem. Smit h later added cl aim s ag ainst Autodesk, D.C. Cadd, and On- S i t e for neg lige nce and brea ch of fiduciar y duty and ag ainst Autodesk and D.C. Cadd for dece ptive trade prac tices. See generally Tex. Bus. & Com. Code Ann. §§ 17.01-.926 (West 2011 & Supp. 2012) (“D T P A” ). Smit h asser ted that Autodesk, D.C. Cadd, and On-Site (1) failed t o protec t Design Center’ s confidential a nd trade -sec ret infor

mation, (2) misrepr esente d their qualifications to identify and reme dy Desig n Center’ s computer- softwar e problems, (3) falsely

Wachhaus’s conclusion could not be independe ntly verifie d beca use he era sed the aff

ecte d 3 computer’ s hard dr ive, at Smith’s direction, afte r the unde rlying la wsuit was filed. 3asser

ted that they had corr ecte d the computer- soft wa re p ro b lems, and (4) failed to reme dy the problems, all of which resulted in unrea sonable delay s for Smit h’s business operati ons. Smit h further complained that On-Site neg lige ntly transmitted the email that aler ted Kn i p p a of his imminent termination, which provided Knippa with an opportun i t y to sabotag e Desig n Center’ s computer sy stem, destroy documents, a nd misappropriate confide ntial and trade -sec ret information. Smit h claimed damag es of $30,000 in fees he pa id to W achha us to remedy

his computer software problems and $160,000 in fee s he had to ref und to his clients to settle their claims ag ainst him, which alleg edly resulted from delay s cause d by the defe ndants’ tortious conduct. He later reduc ed his lost business damag es claims to $115,000 af ter admitting that one of his clients had fired him sever al months before the eve nts givingrise to this lawsuit occurr ed.

Both Autodesk and On-Site moved for summary judgme nt on all of Smit h’s claims and filed numerous objections to Smit h’s summary -judg ment evidenc e. The trial court g rante d both motions without stating the g rounds for its decision and without expressly ruling on the objections. Nea rly three months later, the trial court signe d an order gra n ting all of Autodesk’s objections to Smit h’s summary judgme nt evidenc e. Howeve r, there is no indication in the rec ord that the trial court e ver r

uled on On-Site’s objec tions. The c laims ag ainst the rema ining defe ndants—Knippa and D.C. Cadd—proce eded to a jury trial, with the exception of Smit h’s claim that Knippa tampere d with his computer sy stem, which was appar ently abandone d afte r b o t h Smit h and Wachhaus conce ded that there was no evidenc e that Knippa had done so. The jury found ag ainst Smit h on all claims. Specifica lly , the jury deter mined that (1) Knippa had not stolen Smit h’s or Desig n Center’ s trade secr ets, (2) D.C. Cadd

4had not e ng ag ed in de ceptive or unconsciona ble trade prac tices, and (3) Smit h, but not D.C. Cadd,

was neg lige nt in causing Smit h’s damag es. Following the jury ’s verdic t, the trial court rende red final judgme nt in the case , making the prior summary judgme nts final for pur

poses of a ppeal. On appea l, Smit h does not challeng e the dispositi on of the claims ag ainst Knippa and D.C. Cadd, nor does he complain about the summary j u d gm en t on his brea ch-of -fiducia ry -duty claims ag ainst Autodesk and On-Site. The only claims at issue here are the neg lige nce and DTPA claims ag ainst Autodesk and the neg lige nce claim ag ainst On-Site, which are based on the alleg ed failure to proper ly identify and reme dy the problems with the AutoCAD softwar e and the inadver tent disclosure of Smit h’s plans to terminate Knippa’s employ ment. Smit h also contends that we must 4 disreg ard On-Site’s objections to his summary -judg ment evidenc e beca use On-Site failed to secur e a ruling on the obj ections. Smit h further contends that the trial court’s order gr anting Autodesk’s objections is invalid b ec au s e t he court was require d to rule on the objections when it g rante d the summary -judg ment motion.

DISCUSSIO N

We revie w the trial court’s s u mm a r y-judg ment ruling s de novo, viewing the evidenc e and rea sonable infere nces in the light most favor able to the non-movant. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005); Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). When, as here , multipl e g rounds are asser ted in a summary -judg ment motion

We might be inclined to conclude that Smit h’s DTPA claim is waived based on inadequate 4 briefing , beca

use it is mentioned i n only a si ng le s entenc e of the brief. See Tex. R. App. P. 38.1. We need not do so, howeve r, because t h er e ar e o t her gr ounds on which to aff irm the j udg ment in Autodesk’s fa

vor. 5and the summary -judg ment order does not speci f y a g round for the court’s ruling s, the appellant must show on appea l that eac h independe nt g round alleg ed is insufficient to support summary judgme nt. See Picke tt v. Texas Mut. Ins. Co. , 239 S.W .3d 826, 840 (Tex. App.—Austin 2007, no pet.) (“When the trial cour

t does not specify

the basis for its summary judgme nt, the appea ling pa rty must show i t is err or to base it on any g round asser ted in the motion.”); cf. Nobili ty Homes, Inc. v. S h i ve r s , 557 S.W .2d 77, 83 (Tex. 1977) (holding that appellant’ s failure to challeng e eac h separat e and independe nt g round for rec overy require d aff irmance of trial court’s judgme nt). There fore , we will aff irm the summary judgme nts in this case if any g round prese nted in th e s u m m ar y -j udg ment motions is meritorious or is unchalleng ed on appea l. See FM Props. Operating Co. v. City of Austin , 22 S.W .3d 868, 872 (Tex. 2000); Hand v. Old Republic Nat’l Titl e Ins. Co. , No. 02-10-00347- CV, 2011 WL 1103725, at *2 (Tex. App.—For t Worth Mar. 24, 2011, no pet.) (m em. op.); Picke tt , 239 S.W .3d at 840.

We beg in by addre ssing the summary judgme nt in Autodesk’s favor

. Autodesk filed traditional and no-evide n ce m o t i o n s for summary judgme nt, asser ting a number of g rounds, including c halleng es to the dama g e ele ments of Smith’s claims. The damag es Smith seeks in this

case are conseque ntial damag es—sums he paid to his dissa t i sfied customers and sums he paid to Wachhaus for information technolog y service s—which may be rec overa ble under both neg lige nce and DTPA theories of liability

. See Arthur Andersen & Co. v. Perry Equip. Corp. , 945 S.W .2d 812, 816 (Tex. 1997) (observing that conseque ntial damag es are rec overa ble as actua l damag es under

common law and under DTPA and defining them as damag es that “re sult natura lly , bu t not

n ece ssarily from the defe ndant’s wrong ful acts” ). Smit h does not dispute that his on l y cl ai m ed

6actua l damag es are conseque ntial damag es. Among other gro u nds, Autodesk soug ht summary

judgme nt on the basis that conseque ntial damag es are not rec overa ble in this case beca

use (1) they

are barr ed by the express terms of his softwar e-lice nse and subscription agree ments with Autodesk and (2) they wer e not a fore seea ble result of Autodesk’s alleg edly wrong ful conduct. See id. (“U nder the common law, conseque ntial damag es need not be the usual result of the wrong , but must be fore seea ble.”) (citing Mead v . Johnson Group, Inc

. , 615 S.W .2d 685, 687 (Tex. 1981)). On appea l, Smit h challeng es the first g round, but not the second, asser ting only that his claims are not subject t o the terms and limit ations in the softwar e-lice nse and subscription ag ree ments. Smit h’s argument with reg ard to the applicability of h is ag ree ments with Autodesk does not nece ssarily or infere ntially addre ss t h e lack- of-f orsee ability g round, which is a separ ate and independe nt g round for summary judgme nt. Cf. Star-Telegram, Inc. v. Doe , 915 S.W .2d 471, 473 (T ex . 1995) (appe llant’s arg ument that newspa

per could still be liable for publishing lawfully obtained information was sufficient t o addre ss newspa per’ s claim that it could publish some fac ts with impunity simply beca use they wer e true). We there fore overr ule Desig n Center’ s challeng e to the trial court’s summary judgme nt in Autodesk’s favor without considering whether the trial court timely sustained Autodesk’s objections to Smit h’s summary -j udg ment evidenc e. See, e.g. , King

v. Texas Emp’rs Ins. Ass’n , 716 S.W .2d 181, 183 (Tex. App.—For t Worth 1986, no writ) (af firming summary judgme nt beca

use i t “may have been gr anted, properly or i m p ro p erly , on the ground set forth in the motion, and the g ranting of the summary judgme nt on that g round [was not] challeng ed by appellant” (citations omitted)).

7Wit h reg ard to the summary judgme nt in On-Site’s fa vor, Smit h asser

ts that summary judgme nt was not proper on its neg lige nce claim beca use g enuine issues of materia l fac t exis t as to

eac h element of that claim. See Tex. R. Civ. P. 166a(c), (i) (summary judgme nt is proper if there is no g enuine issue o f m ater ial fac t and movant is entitled to judgme nt as m atter of law). Among other g rounds, On-Site alleg ed that there was no evidenc e that it br eac hed any duty owed to Smith

or Desig n Center and no evidenc e of causation. See Columbia Med. Ctr. of Las Co linas, Inc.

v. Hogue , 271 S.W .3d 238, 246 (Tex. 2008) (neg lige nce cause of action arises when brea ch of leg al duty proxi mately cause s damag es). Viewing the evidenc e in the light most favor able to Smit h and without reg ard to On-Site’s objections to Smit h’s evidenc e, we ag ree that the evidenc e fails to raise a fa ct issue re g ardingessential ele ments of Smith’s neglig ence claim.

Smit h cites two circ umstances underly ing his neg lige nce claim ag ainst On-Site. The first relates to the email On-Site sent to Desig n Center on April 2, 2007, that inadver tently disclosed Smit h ’s i n tent to terminate Knippa’s employ ment and which Smit h alleg es allowed Knippa to misappropriate trade secr ets and tamper with Desig n Center’ s computers (if he wer e inclined to do so). Howeve r, there is no evidenc e that Knippa actua lly eng ag ed in any such wrong ful conduct. In addition, the undisputed evidenc e is that Desig n Center’ s AutoCAD problems predated the April 2

em ail. Simpl y stated, the rec ord is devoid of any evidenc e that the April 2 email—eve n if s en t neg lige ntly , which we do n o t d e cide—pr ox imately cause d the damag es Smit h seeks to rec over in this lawsuit. There fore , summary judgme nt was prope r as to this claim. The other alleg ed acts of neg lige nce conce rn On-Site’s role in attempting to reme dy the problems with the AutoCAD softwar e prog ram. Smit h testified that On-Site was eng ag ed to act

8as his liaison in communications with Autodesk and D.C. Cadd and that he expected those entities,

not On-Site, to fix the problems with AutoCAD: Q. On-Site itself did not actually ever perf orm any of the work to try to fix the AutoCAD sy stem that y ou wer e having —the problems with the sy stem that y ou wer e having , corr ect? A. Correc t, except what I had asked them to do and which they wer e trying to do was to help be a liaison for the whole. Q. Right, kind of c o o r d in a te y o u r c o mm u n ic a ti o n s , the communications betwee n y ourself a nd Autodesk or [D.C. Cadd]? A. And the actions that ever y one was taking

. I wanted to make sure On-Site was in the loop since they

wer e doingmy

networking

. Q. Sure. But the entities that y ou actua lly understood at the time that wer e g oing to be fix ing these problems with y our AutoCAD sy stem was either Autodesk or [D.C. Cadd] , rig ht? A. Wit h Europe spe cifica lly ? Yes. Q. Wit h all the probl em s y ou wer e having during that two-month time period with the AutoCAD sy stem? A. Wit h AutoCAD, yes.

Invoices, summaries, and emails attache d to S m i t h ’s affidavit and incorpora ted by ref ere nce are consistent with Smit h’s deposition testimony that On-Site’s role with re s p ec t to the AutoCAD probl ems was limit ed to acting as a liaison or conduit for information betwee n Smit h or Desig n Center and Autodesk or D.C. C ad d

. There is no evidenc e that On-Site brea ched its duties in that reg ard, and neither Smith nor Wachhaus c ould articulate what On-Site could or should have done differ ently

. Be cause Smit h failed to produce more than a scintilla of evidenc e that On-Site brea ched

9a duty owed to Smit h or Desig n Center, the trial court did not err in g ranting summary judgme nt in

On-Site’s favor.

CONCLUSION

For t h e re as o n s stated, we aff irm the trial court’s summary judgme nts in favor of Autodesk and O n-Site.

____________________________________ J . Woodfin J ones, Chief Just ice

Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: August 16, 2012

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