Affirmed and Opinion filed September 9, 2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00162-CV

STEVEN FRANKOFF, Appellant

V.

SUSAN C. NORMAN, Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2008-34994

OPINION

In this case involving the disbursement of attorneys’ fees from the settlement 

of a lawsuit, appellant Steven Frankoff contends the trial court erred in (1) granting 

summary judgment in favor of appellee Susan Norman, (2) denying Frankoff’s 

cross-motions for traditional and no-evidence summary judgment, (3) denying 

various motions and overruling numerous objections. We affirm.
Procedural History

Frankoff filed suit against Norman in Texas district court, alleging breach of 

fiduciary duty, fraud, and conversion, and claiming damages of over $500,000. 

Frankoff further alleged that he was entitled to settlement proceeds from the 

underlying lawsuit of $350,000 as his “fully earned fee.” In a previous appeal, this 

court affirmed the trial court’s grant of summary judgment on all claims as to 

former defendant Mike Easton but reversed the trial court’s grant of summary 

judgment as to Norman on the basis that Norman did not meet her summary 

judgment burden to establish as a matter of law that Frankoff’s claims were barred 

and remanded the case to the trial court. See Frankoff v. Norman, No. 14-11-

00152-CV, 2012 WL 2394050, at *6, 8 (Tex. App.—Houston [14th Dist.] June 26, 

2012, no pet.) (mem. op.).

After the case was remanded, Frankoff filed a series of motions entitled 

“Amended Motion for Partial for [sic] Summary Judgment or in the Alturnative 

[sic] an Order Specifcing [sic] Facts That Are a Matter of Law.”1

 He subsequently 

filed a motion for partial no-evidence summary judgment. The trial court 

apparently never ruled on these motions.2

 Norman filed a combined traditional 

and no-evidence motion for summary judgment. The trial court granted Norman’s 

motion, ordered Frankoff to take nothing by way of his claims, and rendered final 

judgment in Norman’s favor.

1 Frankoff filed three motions with this title that purport to be traditional motions for 

partial summary judgment.

2 Frankoff concedes this fact but argues the trial court implicitly denied them when it 

granted Norman’s motion for summary judgment and entered final judgment.

2

 
Discussion

Frankoff raises 12 issues3 that appear to complain of the following actions 

by the trial court: (1) overruling Frankoff’s numerous objections and special 

exceptions to Norman’s motion for summary judgment, (2) granting summary 

judgment in favor of Norman, (3) failing to rule on Frankoff’s motion for summary 

judgment, and (4) overruling objections and denying various motions. We 

conclude the trial court did not abuse its discretion in overruling Frankoff’s 

objections and denying his special exceptions to Norman’s motion for summary 

judgment and did not err in granting no-evidence summary judgment in Norman’s 

favor. Accordingly, we need not reach the merits of Frankoff’s arguments 

complaining of the trial court’s grant of traditional summary judgment.4

 We 

further conclude Frankoff may not seek interlocutory appeal of the denial of his 

partial motions for summary judgment and did not preserve his other issues for 

review.

I. The trial court did not abuse its discretion in overruling 

Frankoff’s objections and denying his special exceptions to 

Norman’s motion for summary judgment.

As an initial matter, we address Frankoff’s complaint that the trial court did 

not sustain his objections or grant his special exceptions to Norman’s motion for 

summary judgment. Frankoff filed a document entitled “Plaintiff’s Objections and 

Special Exceptions to Defendant[’s] Traditional and No Evidence Summary 

Judgment” and also included special exceptions in his response to Norman’s 

motion for summary judgment. We shall discuss both.

3 Frankoff’s brief does not comply with many aspects of Texas Rule of Appellate 

Procedure 38.1.

4 Frankoff complains, among other things, that Norman was precluded from moving for 

summary judgment on traditional grounds under the law of the case because we reversed her 

previous traditional motion for summary judgment.

3

 
We review the trial court’s evidentiary rulings for an abuse of discretion. 

Ashland Inc. v. Harris County Appraisal Dist., No. 14-13-00064-CV, 2014 WL 

2615866, at *5 (Tex. App.—Houston [14th Dist.] June 12, 2014, no. pet. h.). We 

likewise review a trial court’s denial of special exceptions for an abuse of 

discretion. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (“A 

trial court has broad discretion in ruling on special exceptions.”). A trial court 

abuses its discretion when it acts without regard to any guiding principles. 

Ashland Inc., 2014 WL 2615866, at *5. A ruling that admits or excludes evidence 

will not result in reversible error unless the evidence is determinative of the case. 

Id.

Frankoff’s specific complaints on appeal relate primarily to evidence 

Norman presented to support traditional summary judgment. However, we 

conclude that the trial court did not err in granting Norman’s motion on the basis of 

no evidence. Accordingly, we do not address any alleged errors regarding

evidence Norman presented to support her motion based on traditional grounds for 

summary judgment. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 

2004) (acknowledging if nonmovant does not satisfy its burden of production on

the no-evidence motion, there is no need to analyze whether the movant satisfied 

its traditional summary judgment burden); Pipkin v. Kroger Tex., L.P., 383 S.W.3d 

655, 662 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (same).

Frankoff objected to Norman’s contention that he was required to present 

evidence that the attorney-client fee agreement between them was forged because 

he was not required to prove that to support his claims against Norman. Assuming 

for argument’s sake that the trial court overruled this objection in error, any such 

error would be harmless because we conclude below that Frankoff otherwise did 

not meet his burden to overcome no-evidence summary judgment as to each of his 

4
claims.

Frankoff further objected that the trial court did not grant his objections and 

special exceptions to Norman’s claims that there was no evidence (1) of a 

conspiracy between Norman and Easton, (2) of breach of fiduciary duty, (3) that 

Norman made misrepresentations to Frankoff, (4) that Frankoff was injured, (5) of 

a failure to disclose by Norman, (6) that Frankoff relied on Norman’s failure to 

disclose, (7) that Frankoff was entitled to possession of the disputed funds, and 

(8) that Norman appropriated Frankoff’s property. At most, these are arguments 

that the trial court should deny the motion. They are not proper evidentiary

objections or special exceptions to the summary judgment motion. Frankoff had 

the burden to present evidence to overcome summary judgment as to each of these 

elements. The trial court did not abuse its discretion in overruling these objections 

and denying the special exceptions.

Frankoff also argued, “Frankoff objected, to the materiality, to the 

relevancy, and once again he reincorporates all of his earlier exhibits and 

documents.” This objection does not refer to anything specific and thus was not 

sufficient to make the trial court aware of the complaint. See Tex. R. App. P. 

33.1(a) (providing that as a prerequisite to presenting a complaint for appellate 

review, the complaint must have been made to the trial court by a timely request, 

objection, or motion that stated the grounds for the ruling that the complaining 

party sought from the trial court with sufficient specificity to make the trial court 

aware of the complaint).

In his response, Frankoff again objected and specially excepted to the noevidence portion of Norman’s motion for summary judgment as follows:

Objection: Frankoff once again objects and [s]pecial excepts as to all 

of points and statements in th[e paragraph pertaining to Norman’s no5
evidence points.] It is not relevant, it is immaterial, it is hearsay and 

in violation of law of the case. Objection: Defendant has improperly 

pled and relied upon material as described below.

In these paragraphs without any reference to pleading in the 

alternative, which is NOT appropriate in a motion for summary 

judgment, where one must prove your position as a matter of law. 

Furthermore in the context of a breach of fiduciary duty claim it is the 

offending party [who] carries the burden of proving fairness, and 

compliance with both the fairness of the transaction, the 

appropriateness of her conduct, and her ethical obligations. The 

burden of the elements as listed below fall to Norman not Frankoff. 

Finally in both of the paragraphs below the individualized points are 

sufficiently related to individual causes of action, or specifically 

related to the cause of actions [sic] as plead [sic] by Frankoff.

The only cognizable argument seems to be that Norman was not permitted to 

move for no-evidence summary judgment on the elements of Frankoff’s claims on

which she bore the burden of proof. Assuming for argument’s sake that the trial 

court erred in denying Frankoff’s perplexing objections, any such error would be 

harmless because we conclude below that Frankoff otherwise did not meet his 

burden to present evidence on each element of the claims on which he bore the 

burden of proof.

For these reasons, we overrule Frankoff’s issues complaining that the trial 

court did not sustain his objections or grant his special exceptions to Norman’s 

motion for summary judgment. 

II. The trial court did not err in granting Norman’s motion for 

summary judgment because Frankoff did not present evidence of 

every element of each of his claims on which he bore the burden 

of proof.

We review the trial court’s granting of summary judgment de novo. Valence 

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Pipkin, 383 S.W.3d at

661. In reviewing either a no-evidence or a traditional summary judgment motion, 

6
all evidence favorable to the nonmovant is taken as true, and we draw every 

reasonable inference and resolve all doubts in favor of the nonmovant. Lone Star 

Air Sys., Ltd. v. Powers, 401 S.W.3d 855, 858 (Tex. App.—Houston [14th Dist.] 

2013, no pet.). 

In a no-evidence motion for summary judgment, the movant asserts there is 

no evidence of one or more essential elements of the claims for which the 

nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); Timpte 

Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). A no-evidence summary 

judgment is improperly granted if the nonmovant brings forth more than a scintilla 

of probative evidence to raise a genuine issue of material fact. Mathis v. 

Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex. App.—Houston [14th Dist.] 

2007, no pet.). We will sustain a no-evidence motion for summary judgment when 

(1) there is a complete absence of evidence of a vital fact, (2) the court is barred by 

rules of law or of evidence from giving weight to the only evidence offered to 

prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a 

mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital 

fact. Drake Interiors, L.L.C. v. Thomas, 433 S.W.3d 841, 847 (Tex. App.—

Houston [14th Dist.] 2014, no. pet.). 

More than a scintilla of evidence exists when reasonable and fair-minded 

individuals could differ in their conclusions. Forbes Inc. v. Granada Biosciences, 

Inc., 124 S.W.3d 167, 172 (Tex. 2003); Mendoza v. Fiesta Mart, Inc., 276 S.W.3d 

653, 655 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). Less than a 

scintilla of evidence exists if the evidence creates no more than a mere surmise or 

suspicion of a fact regarding a challenged element. Forbes Inc., 124 S.W.3d at 

172; Mendoza, 276 S.W.3d at 655. If the nonmovant does not satisfy its burden of 

production on the no-evidence motion, there is no need to analyze whether the 

7
movant satisfied its traditional summary judgment burden. Ford Motor Co., 135 

S.W.3d at 600; Pipkin, 383 S.W.3d at 662.

Norman moved for no-evidence summary judgment as to all of Frankoff’s 

claims.

5

 Frankoff responded to the motion and subsequently filed a motion and 

supplemental motion “to accept a late filed response . . . to plaintiff’s no evidence 

5 Norman moved for no-evidence summary judgment on the following bases:

(1) no evidence exists that Michael Easton and Susan Norman had a meeting of 

the minds on an object or course of action; (2) no evidence exists that Michael 

Easton or Susan Norman committed an unlawful, overt act in furtherance of the 

alleged object or course of action; (3) no evidence exists that Michael Easton and 

Susan Norman were liable for some underlying tort; (4) no evidence exists that 

Easton or Norman made any material representation to Frankoff; (5) no evidence 

exists that any representation by Easton or Norman to Frankoff was false; (6) no 

evidence exists that when Easton or Norman made an alleged false material 

representation to Frankoff, Easton or Norman knew that such representation was 

false or made it recklessly without knowledge of the truth as a positive assertion; 

(7) no evidence exists that Norman made any material misrepresentation with the 

intention that it should be acted upon by Frankoff; (8) no evidence exists that 

Frankoff acted upon any material, false representation by Norman; (9) no 

evidence exists that Frankoff suffered injury as a result of his reliance upon any 

material, false representation by Norman; (10) no evidence exists that Norman 

failed to disclose material facts to Frankoff; (11) no evidence exists that Norman 

had any duty to disclose facts that were allegedly not known by Frankoff; (12) no 

evidence exists Norman knew Frankoff was ignorant of facts that were allegedly 

wrongfully withheld from him; (13) no evidence exists that Norman was

deliberately silent when she had a duty to speak; (14) no evidence exists that by 

failing to disclose some fact, Norman intended to induce Frankoff to take some 

action or refrain from acting; (15) no evidence exists that Frankoff relied on any 

alleged failure to disclose by Norman; (16) no evidence exists that Frankoff was 

injured as a result of acting without knowledge of facts that Norman allegedly 

wrongfully withheld from him; (17) no evidence exists that Frankoff was entitled 

to possession of his allegedly “fully earned legal fee” of $350,000; (18) no 

evidence exists that Frankoff had a greater right to possession of the $350,000 

than did the Bankruptcy Trustee; (19) no evidence exists that Norman “unlawfully 

appropriated” Frankoff’s personal property by bringing about a transfer of title or 

any other non possessory interest in personal property; (20) no evidence exists 

that Norman “unlawfully appropriated” Frankoff’s personal property by acquiring 

or otherwise exercising control over the personal property; (21) no evidence exists 

that Norman forged a fee agreement between Frankoff and Norman; and (22) no 

evidence exists that any person forged a fee agreement between Frankoff and 

Norman.

8

 
summary judgment.” Frankoff did not secure a ruling from the trial court on his 

motions for leave to file a late response. Moreover, no proposed response was 

included in the motions or otherwise presented to the trial court. Accordingly, we 

presume the trial court considered only Frankoff’s initial response to the motion 

for summary judgment and consider only that response in our analysis. See 

Frankoff, 2012 WL 2394050, at *7 & n.23. 

To overcome summary judgment as to each of his claims of fraud, breach of 

fiduciary duty, conversion, and conspiracy, Frankoff was required to present 

evidence of each challenged element on which he bore the burden of proof.6

 See

Tex. R. Civ. P. 166a(i); Timpte Indus., Inc., 286 S.W.3d at 310. We note that 

Frankoff’s response includes page after page of argument and references to 

deposition summaries and summaries of other documents that purportedly support 

his claims. Frankoff, however, makes no attempt to explain how this information 

amounts to more than a scintilla of evidence of each element of his claims. 

Moreover, he similarly attached approximately 700 pages of exhibits to his 

response with little to no effort to explain how the documents are evidence of any 

elements of his claims. See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 

331 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (“[Nonmovants’] summaryjudgment evidence exceeds six hundred fifty pages in length. Normally, it should 

not take much for a summary-judgment response to point out evidence that raises a 

genuine issue of fact as to elements challenged by no-evidence grounds.”). 

Nonetheless, we analyze Frankoff’s claims as follows.

6 In his response, Frankoff states that his “current actions against Norman are fraud and, 

[sic] breach of fiduciary duties.” It thus would appear that he has abandoned his claims for 

conversion and conspiracy. However, he proceeds to discuss these claims, so we presume for 

purposes of our analysis that they were not abandoned. Frankoff previously had nonsuited his 

claim against Norman under the Texas Theft Liability Act, see Texas Civil Practice and 

Remedies Code § 134.002(2), and thus we do not address that claim. 

9

 
A. No evidence of fraud by material misrepresentation or failure to 

disclose

Material misrepresentation. Frankoff alleged fraud and fraud by omission. 

The elements of fraud are (1) that a false, material representation was made; 

(2) when the representation was made, the speaker knew it was false or made it 

recklessly without any knowledge of the truth and as a positive assertion; (3) the 

speaker made the representation with the intent that the other party should act upon 

it; (4) the party acted in reliance on the representation; and (5) the party thereby 

suffered injury. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 

S.W.3d 323, 337 (Tex. 2011). Norman moved for no-evidence summary judgment 

on all of these elements.

Frankoff responded to Norman’s no-evidence point on the first element of 

the fraud claim—that a false, material representation was made—as follows: 

“Frankoff reincorporates in his responses, all of the exhibits and the evidence all 

presented in Frankoff’s response to [Norman’s motion for summary judgment] 

Paragraph 76 to each and every point-element presented her[e], and especially with 

particularity Plaintiff’s response to point 4 and 5.” Setting aside the fact that the 

response does not indicate which portions respond to paragraph 76 of the motion 

for summary judgment,7 neither the trial court nor this court is required to comb

through the referenced summary judgment evidence to see if a genuine issue of 

material fact had been raised as to the challenged element. See San Saba Energy, 

171 S.W.3d 331 (noting trial court was not required to undertake “onerous task of 

searching the summary-judgment evidence to see if a genuine issue of fact had 

been raised as to each challenged element”). In fact, the response does not even 

specify what evidence was “presented in Frankoff’s response to Paragraph 76.” 

7 The response contains certain sections that are labeled to correspond with paragraphs 

from the motion for summary judgment. No such section is labeled for paragraph 76. 

10

 
Accordingly, Frankoff did not point out evidence that raised a genuine issue of 

material fact on this element. See id.; see also Kimbrell v. Mem’l Hermann Hosp. 

Sys., 407 S.W.3d 871, 879 (Tex. App.—Houston [14th Dist.] 2013, no pet.).

Frankoff also responded that Norman misrepresented to him the amount of 

fees she was owed and in reliance on Norman’s misrepresentation, Frankoff paid 

fees to Norman to which she purportedly was not entitled. In support of this 

argument, Frankoff submitted an unsigned fee agreement that Norman had emailed 

to Frankoff. He included the following statement in his response purportedly 

referencing evidence in support of his claim: “(Ex fee agreement—her 

representation to [Peter] Riga on 1.23—all mentioning differing percentages due to 

her. Norman with the aid Easton [sic] stole $65,000 on 2.9 (see exhibit).”8

 We 

cannot tell what exhibit Frankoff refers to other than the fee agreement, if any. 

Frankoff does not explain how the unsigned fee agreement is evidence of a 

material misrepresentation by Norman as to the amount of fees to which she was 

entitled. 

Finally, Frankoff argued “Norman represented to Frankoff, and [his 

attorney] that the confession of judgment was authorized and agreed to by

[Equator’s owner], who ‘[Norman] said’ was claiming . . . as his own and could 

settle, as a non-debtor outside of the bankruptcy filing of Equator. NON [sic] OF 

THIS WAS THE TRUTH[.]”9

 Frankoff cites the confession of judgment but does 

not explain how it is relevant to this issue or the import of Norman’s purported 

8 The underlying action was a lawsuit between Frankoff’s client Equator and another 

company. After the lawsuit settled, Equator filed for bankruptcy. MetroBank claimed 

entitlement to a portion of the settlement proceeds as a judgment creditor in Equator’s 

bankruptcy. Peter Riga was MetroBank’s attorney.

9 Equator’s owner had entered a confession of judgment in favor of Frankoff in a lawsuit 

styled S. Soe, Individually v. Doe Corp., purportedly filed under aliases to insulate Frankoff’s fee 

from MetroBank. 

11

 
misrepresentation to Frankoff. Frankoff cites an affidavit from his attorney Broach 

that Frankoff presented as summary judgment evidence. The attorney attested that 

he was speaking on the telephone to Frankoff when Norman took the phone and 

“advised [Broach] that she was Frankoff’s attorney, . . . [Equator’s 

owner] . . . had entered a confession of judgment in a state law suit 

she had filed, and . . . was a non-debtor . . . not subject to the 

automatic stay. [The attorney] understood that [Norman] and Mr. 

Frankoff had just left the bank and drawn the funds on checks signed 

by the other attorney.” 

This is not evidence that Norman made a misrepresentation to Frankoff. 

Frankoff also cited the deposition of Equator’s owner in its entirety, but did 

not refer to any particular statements in the deposition or pages of the transcript. In 

citing the deposition wholesale, failed to point out evidence that raised a genuine 

issue of material fact on the element of material misrepresentation. See Kimbrell, 

407 S.W.3d at 879. 

We conclude that Frankoff did not meet his burden of presenting more than 

a scintilla of evidence that Norman made a material misrepresentation of fact to 

him.

Failure to disclose material facts. The elements of fraud by omission are 

(1) the defendant failed to disclose material facts to the plaintiff that the defendant 

had a duty to disclose; (2) the defendant knew the plaintiff was ignorant of the 

facts and the plaintiff did not have an equal opportunity to discover the facts, 

(3) the defendant was deliberately silent when she had a duty to speak; (4) by 

failing to disclose the facts, the defendant intended to induce the plaintiff to take 

some action or refrain from acting; (5) the plaintiff relied on the defendant’s 

nondisclosure; and (6) the plaintiff was injured as a result of acting without that 

knowledge. Horizon Shipbuilding, Inc. v. BLyn II Holding, LLC, 324 S.W.3d 840, 

12
850 (Tex. App.—Houston [14th Dist.] 2010, no pet.). Norman moved for noevidence summary judgment on each of these elements.

Frankoff numbered his responses to correspond with Norman’s no-evidence 

points. Norman’s no-evidence point number ten was that no evidence exists that 

Norman failed to disclose material facts to Frankoff. Frankoff did not include a 

corresponding numbered response to this point. His response skipped from noevidence point number nine (no evidence that Frankoff suffered injury resulting 

from his reliance on any material misrepresentation) to number twelve (no 

evidence Norman knew Frankoff was ignorant of facts that were allegedly 

wrongfully withheld).

10 However, in between Frankoff’s numbers nine and twelve 

in the response, Frankoff copied the entire text of his response to Norman’s noevidence point as to the element of material misrepresentation. Construing the 

response liberally, we conclude this was an attempt to show Norman failed to 

disclose material facts to Frankoff. For the reasons discussed above, Frankoff did 

not point out evidence that raised a genuine issue of material fact on the element of 

failure to disclose material facts on his fraud by omission claim. See Kimbrell, 407 

S.W.3d at 879.

We conclude the trial court did not err in granting summary judgment as to 

Frankoff’s fraud claims.

B. No evidence of breach of fiduciary duties of full disclosure and 

loyalty based on allegation that Norman failed to disclose disbursal 

of funds

The elements of a breach-of-fiduciary-duty claim against one’s attorney are

(1) the existence of a fiduciary relationship, (2) a breach of a fiduciary duty by the 

attorney defendant, and (3) resulting damages to the plaintiff. Beck v. Law Offices 

10 Later in the response, he addresses no-evidence point eleven.

13

 
of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 429 (Tex. App.—Austin 2009, 

no pet.). The plaintiff bears the burden of proof as to all of these elements. Id. 

Frankoff alleged in his live petition that Norman breached her fiduciary duties to 

Frankoff of full disclosure and loyalty by, without legal authority or consent, 

disbursing funds to which he allegedly was entitled.11 Norman moved for noevidence summary judgment on the grounds that no evidence existed that 

(1) Norman had a duty to disclose and failed to disclose material facts to Frankoff 

that he allegedly did not know, (2) Norman was deliberately silent when she had a 

duty to speak, or (3) Frankoff was entitled to possession of his allegedly “fully 

earned fee” of $350,000. We construe these to be arguments that Frankoff could 

present no evidence that, as alleged, Norman breached her fiduciary duties to him 

of full disclosure and loyalty by disbursing funds to which he was entitled without 

his knowledge.

In response, Frankoff again referenced the unsigned fee agreement and the 

Broach affidavit. We have already held that these pieces of evidence do not 

demonstrate that Norman failed to disclose material facts to Norman. Frankoff 

also referenced a $46,000 check deposited by Norman along with the check from 

Riga to Norman for $65,625. These checks, standing alone, are not evidence 

Norman failed to disclose any information to Frankoff. Frankoff also referenced

“[t]he deposition testimony cited above,” but did not point the trial court to the 

testimony relevant to this issue. See Kimbrell, 407 S.W.3d at 879. Frankoff 

further referenced Norman’s “summary judgment response,” “statements and 

11 Frankoff also alleged Norman owed him various other related fiduciary duties, but he 

averred only that she breached the duties of full disclosure and loyalty. Regardless, all of 

Frankoff’s breach of fiduciary duty claims related to Norman’s purported improper handling of 

the settlement funds without Frankoff’s knowledge.

14

 
pleadings” from other lawsuits, another fee agreement,12 and a letter to Riga,

13 but 

Frankoff again did not point the trial court to the portions of these items relevant to 

the issue or explain why this evidence was relevant. 

As we have already held, Frankoff failed to point out evidence that raised a 

genuine issue of material fact that Norman failed to disclose material facts. 

Accordingly, Frankoff likewise failed to point out evidence that Norman breached 

her fiduciary duties of full disclosure and loyalty by disbursing funds without his 

knowledge. The trial court did not err in granting summary judgment in favor of 

Norman on Frankoff’s breach of fiduciary duty claims.

C. No evidence Frankoff was entitled to property

The elements of conversion are (1) the plaintiff owned, had legal possession 

of, or was entitled to possession of the subject property; (2) the defendant 

unlawfully and without authorization assumed and exercised control over the 

property, to the exclusion of and inconsistent with the plaintiff’s rights; and (3) the 

defendant refused to return the property. MSMTBR, Inc. v. Mid-Atl. Fin. Co., No. 

01-12-00501-CV, 2014 WL 3697736, at *9 (Tex. App.—Houston [1st Dist.] 

July 24, 2014, no. pet. h.) (mem. op.). Norman moved for no-evidence summary 

judgment on the first two elements.

Frankoff responded to Norman’s no evidence point as to the first element—

no evidence “that Frankoff was entitled to possession of his allegedly ‘fully earned 

fee’ of $350,000” as follows:

See response to Point I hereby incorporated and re-alleged as an 

answer to this no evidence point. Frankoff also incorporates and re 

12 It is unclear what fee agreement he is referencing.

13 Frankoff does not include a record cite to this letter, but it appears to be a demand for 

payment of Frankoff’s fee plus “the additional amount of $10,000 as attorney’s fees as of this 

date.” This letter is not evidence that Norman withheld any information from Frankoff.

15

 
alleges [sic] all of [the] exhibits[,] arguments, evidence contained in 

this motion in its entirety . . . . At the time these events occurred 

Frankoff had an unquestioned ownership right. These funds were his 

and his alone . . . Norman had so plead [sic] in bankruptcy pleadings, 

and is now estopped from asserting to the contrary. The [$]46,000 

was drawn (stolen actually) from Frankoff’s account.

In footnotes, Frankoff stated that he “reasserts and incorporates by reference 

all of deposition material and summaries as well as exhibit references into this 

response.” He also cited “bank records—remitter on Norman’s $46,000 was 

Frankoff—See check (supra).” “Point I” of the response consists of an 18-page list 

of purported evidence with no context for what claim or claims the evidence was 

supposed to support. Moreover, Frankoff does not explain how Point I supports 

his contention that he presented evidence that he was entitled to the fee. 

With regard to his incorporation of the entirety of almost 700 pages of 

purported evidence attached to his response, as set forth above, the trial court was 

not required to search through this evidence to determine whether Frankoff 

presented evidence to support his claim of conversion. See San Saba Energy, 171 

S.W.3d 331. Blanket citation to voluminous records is not a proper response to a 

no-evidence motion for summary judgment. See Eaton Metal Prods., L.L.C. v. 

U.S. Denro Steels, Inc., No. 14-09-00757-CV, 2010 WL 3795192, at *6 (Tex. 

App.—Houston [14th Dist.] Sept. 30, 2010, no pet.) (mem. op.) (holding 700 pages 

of undifferentiated documentation attached to response need not be considered by 

trial court). 

Similarly, Frankoff’s cite to “bank records” did not direct the trial court to 

their location in the response. However, we note that there is a $46,000 check in 

the record that was written to and deposited by Susan Norman. Under the 

signature line for the check is a notation, “remitter Steven B. Frankoff.” However, 

the check does not indicate what ultimately happened to these funds, that Frankoff 

16
was entitled to them, or that he never received them. We conclude the check alone 

is not more than a scintilla of evidence that Frankoff owned, had legal possession 

of, or was entitled to possession of the disputed funds.

We conclude that Frankoff failed to point out evidence that a raised a 

genuine issue of material fact as to whether Frankoff owned, had legal possession 

of, or was entitled to possession of the subject property. See Kimbrell, 407 S.W.3d 

at 879. Accordingly, the trial court did not err in granting summary judgment in 

Norman’s favor on Frankoff’s conversion claim.

D. No evidence of underlying tort

Frankoff’s conspiracy claim was based on his assertion that Norman 

conspired with Easton to commit the other torts alleged by Frankoff. Conspiracy is 

a “derivative tort” because a defendant’s liability depends on participation in some 

underlying tort for which the plaintiff seeks to hold at least one of the named 

defendants liable. Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996); Williams 

v. Shell Exploration & Prod. Co.—Americas, No. 14-13-00309-CV, 2014 WL 

3555741, at *8 (Tex. App.—Houston [14th Dist.] July 17, 2014, no. pet. h.) (mem. 

op.). If the defendant’s liability for the alleged underlying torts is foreclosed as a 

matter of law, there is no claim for conspiracy. Soon Phat, L.P. v. Alvarado, 396 

S.W.3d 78, 94 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). Because the 

trial court properly granted summary judgment on Frankoff’s other claims, it did 

not err by granting summary judgment on the conspiracy claim.14 See Williams, 

2014 WL 3555741, at *8.

14 The elements of civil conspiracy are (1) two or more persons; (2) an object to be 

accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more 

unlawful, overt acts; and (5) damages as a proximate result. Tri v. J.T.T., 162 S.W.3d 552, 556 

(Tex. 2005). Norman moved for no-evidence summary judgment on the basis that, among other 

things, no evidence exists that Norman committed an underlying tort. 

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Frankoff failed to present more than a scintilla of probative evidence to raise 

a genuine issue of material fact as to each element of his claims on which he bore 

the burden of proof. Accordingly, we hold that the trial court did not err in 

granting no-evidence summary judgment in Norman’s favor. Because we affirm 

this part of the trial court’s judgment, we need not address the merits of Norman’s 

arguments in support of traditional summary judgment.

III. Frankoff may not seek interlocutory appeal of the denial of his 

partial motions for summary judgment.

Frankoff argues the trial court erred in denying his cross-motions for partial 

summary judgment. Generally, a party may not seek appellate review of the trial 

court’s denial of a motion for summary judgment because it is an interlocutory 

ruling and not a final judgment. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 

625 (Tex. 1996); Cont’l Cas. Co. v. Am. Safety Cas. Ins. Co., 365 S.W.3d 165, 172 

(Tex. App.—Houston [14th Dist.] 2012, pet. denied). However, an exception may 

apply when both parties move for summary judgment and the trial court grants one 

motion but denies the other. Cont’l Cas. Co., 365 S.W.3d at 172. For this 

exception to apply, both parties must have sought a final judgment in their crossmotions for summary judgment. Id. Because Frankoff moved only for partial 

summary judgment, the exception does not apply, and Frankoff may not appeal the 

denial of his partial motions for summary judgment. See id.

IV. Other issues pertaining to the trial court’s overruling certain 

objections and denying certain motions are waived.

In his list of issues presented, Frankoff complains that the trial court abused 

its discretion in overruling his objections to Norman’s request to file an amended 

answer and denying his motion in limine and motion for new trial.15 

15 The trial court granted Norman’s motion for leave to file an amended answer. The trial 

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In his statement of facts, Frankoff generally states that the trial court 

overruled his objections to Norman’s request to file an amended answer. In the 

body of the brief, Frankoff complains about this ruling, arguing “Frankoff argued 

the law of the case and objected to Norman’s amended answer for the same factual 

and legal reasons [for] which this court rejected them. At that hearing, the trial 

court agreed with Frankoff’s objections.” (Emphasis omitted.) Frankoff, however,

includes no legal argument or analysis indicating how such ruling was an abuse of 

discretion. Thus, he has waived that complaint. See Tex. R. App. P. 38.1(i) 

(providing appellant’s brief must contain clear and concise argument for 

contentions made, with appropriate citations to authorities and the record); see also 

Gurka v. Gurka, 402 S.W.3d 341, 349-50 (Tex. App.—Houston [14th Dist.] 2013, 

no pet.) (recognizing that failure to cite authority or advance substantive analysis 

waives appellate issue).

Similarly, in the statement of facts section of his brief, Frankoff states he 

filed a motion in limine and notes he filed a motion for new trial. He includes no 

further argument or analysis with regard to these motions. Accordingly, he has 

waived his complaints pertaining to the trial court not granting the motions.16 See

Tex. R. App. P. 38.1(i); see also Gurka, 402 S.W.3d at 349-50. 

We overrule these issues.

court did not expressly overrule Frankoff’s “objections.”

16 Moreover, we note that a trial court’s ruling on a motion in limine preserves nothing 

for appellate review. See Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 91 (Tex. 

App.—Houston [14th Dist.] 2004, no pet.)

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We affirm the judgment of the trial court.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Jamison, McCally, and Busby.

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