Opinion issued August 13, 2019

In The 

## Court of Appeals For The 

## First District of Texas

———————————— NO. 01 - 18 - 00125 - CV

——————————— VERTEX SERVICES, LLC , Appella nt

V. OCEANWIDE HOUSTON, I NC., OCEANWIDE TEXAS , INC., AND OCEANWIDE AMERIC A, INC. , Appell e e s On Appeal from the 55th District Court Harris County, Texas Trial Court Ca se No. 2016 - 30943A

O P I N I O N In four issues, 1 a ppellant Vertex Services, LLC ( Vertex ) challenges the trial court’s rendition of no

- evidence and traditional summary judgment i n favor of

1 Vertex present s its four issues as follows:2

appellees Oceanwide Houston, Inc., Oceanwide Texas , Inc., and Oceanwide America, Inc. ( collectively Oceanwide ) on Vertex’s claims of tortious interference with contract, tortious interference with prospective business relations, common

law misap propriatio n, and civil conspiracy. We affirm. Background Vertex is in the business of providing offshore labor and staffing to clients in the energy industry. After losing contract s with its long

- time foreign labor supplier , Sea Cross Marine PTE ( Sea Cro ss ), and its client, oil and gas company TETRA Applied Technologies, LLC ( TETRA ) , 2 Vertex sued competitor Oceanwide. According to Vertex, Oceanwide “ poached ” the foreign workers that Vertex had

“ located and groomed ” for its contract with TETRA and then off ered them t o 1. The trial court erred when it improperly concluded that “if [Plaintiff’s claim for] m i sappropriation fails then all four causes of action agai nst the Oceanwide defendants fail because it is the underlying tort.” 2. The trial court erred when it failed to recognize that misappropriation is a valid cause of action and encompasses Vertex’s cla i ms for unfair competition. 3. Oceanwide’s m otion for summa ry judgment failed to address Vertex’s claim for tortious interference with its contract with Sea Cross Marine. 4. Vertex presented ample summary judgment evidence to support the essential elements of a ll four of its claims against the Oceanwi de Defendants. 2 Vertex also sued TETRA Applied Technologies, LLC and DHD Offshore Services, LLC , neither of which were parties to the summary

- judgment motion Oceanwide appeals.3

TETRA, “ forc [ing] Vertex out of the loop and adversely effect [ing] its business.” The dispute arises out of the following events. Vertex entered into a contract ( Vertex

- TETRA contract ) to supply both foreign and domestic contract labor to TET RA ’ s “Hedro n ” barge from January 1, 2014 until December 31, 2015
. To meet its supply obligations, Vertex procured its foreign labor through Sea Cross pursuant to a June 20, 2010 contract ( Vertex

- Sea Cross contract ) 3 which stated that Sea Cross would provid e laborers , who would remain Sea Cross employees, to Vertex on an as

- needed basis
. Although the Vertex

- Sea Cross contract stated an end date of October 9, 2010, the parties continued to operate under it past that date. On December 1, 2015, TETRA gave Vert e x written n otice that it was not extending the Vertex

- TETRA contract past the initial term because it needed to find lower cost options as a result of the downturn in the energy market. The notice stated that TETRA would contact Vertex “as to how we can c o ntinue to p artner with Vertex for our offshore contractor labor needs.” On the same day, Melanie Fite, TETRA’s s trategic s ourcing m anager of g lobal s upply c hain and p rocurement, emailed Jason Green, Vertex ’s v ice p resident and c ommercial

c ontract c ontact, advising h i m that TETRA had sent its notice not to extend the

3 T he contract is between Vertex a nd Blue Marine Offshore Pte Ltd , which la ter changed its named to Sea Cross Marine PTE
. In this opinion, we use the name Sea Cross to include Blue Marine.4

Vertex

- TETRA contract and stating that “we really need to talk about next year and a way for TETRA to secure a reduction in the cost for the same.” On December 15, 2015, Fite emailed Green ask i ng him to c onfirm that Vertex would be able “to submit a proposal by the end of this week on next year’s commercial terms, including the discount on rates we spoke about.” She also forwarded Green a letter from TETRA’s c hief o perating o fficer to its suppl i ers asking for price reductions to meet the effects of falling oil prices. On that same day, Jim my Ho, owner of Sea Cross, sent Vertex a letter stating : Our company has had an ongoing relationship with Vertex Services for the past 6 years (DB1 and Hedron ) and busin e ss relationships with their owners since 2002. We are happy with the agreement between the companies and prefer to work with them on the Hedron. As we were approached by TETRA Technologies (TOS) to switch to another US company, it is in our bes t interest t o continue our relationship with Vertex Services. With the assistance of Vertex Services, we believe the crews provided to TETRA Technologies (TOS) are some of the best in the world and have been on the Hedron since 2011. We hope to continue th e relations h ip with Vertex Services and provide personnel through them to TETRA Technologies. On December 21, 2015, Green responded by email to Fite’s request for Vertex’s bid to supply labor to the Hedron for the 2016 season . He attached Vertex’s p roposa l and stat e d that it was “unprofessional” for TETRA “to try to go behind our backs and cut us out.” I n “February 2016 , ” Sea Cross terminated the Vertex

- Sea Cross contract
.5

On February 2, 2016 , TETRA invited Oceanwide to bid on supplying its foreign labor , thus begi n ning the negotiations between the two companies for the provision of foreign labor to work offshore on the Hedron. In the first four days of February 2016 , John Ford, Oceanwide’s president , and Jimmy Ho , owner of Sea Cross , exchanged nume rous t ext message s , including the following: Ford: Any news on who Tetra will utilize as your partner for the foreign labor? Us? Ho: My sincere apologies for not being able to give you any feedback on Tetra before as everything is still on the discussio n stag e. We had s e veral meetings while in Houston and emails and phone conversation with Tetra of how we should go about, with our contract with them. They propose to us to use GMC but we told them we prefer [Oceanwide]. Now, I need to get an agreement fro m you as with GMC we are able to maintain our rates with them and they mark up a percentage to Tetra. If you are agreeable to a mark up between the safety courses reimburseable by Tetra (they agree) then I can go back to Tetra and tell them we want to go t hrough [Oceanwide ]
.

. . . . Ford: We have run the numbers and if this is what [V] ertex agreement was or similar we can see why there may have been some issues with their finances
.

. . . . Ho: We have some issue with Vertex which we need to seriously deal wit h before we can s ay yes or no to you
. Ford: Ok. If we can help let me know
.6

On February 8, 2016, James Ireland, Vice

- President of Oceanwide America, Inc. , emailed Ho asking, “Who is Sea Cross?” Ho respond ed, “Sea Cross is one of

our company[ies] .” Ho the n provided infor ma tion about its services and made several statements about its previous provision of labor to TETRA through a “local agent,” including advising that courses in rigging, firewatch, and fall protection had been supervised “ by local agent and billed at cost + [redacted] , ” and that TETRA would require deck foremen and lead electricians. That same day, Ireland sent Fite an email entitled “ Oceanwide proposal to provide foreign labor to Tetra on board the Hedron .” Among other things, the email co n firmed that “TE TR A will be provided with same members of the foreign labor as was supplied by Sea Cross during 2015 ,” and relayed the information Ho had emailed to Ireland regarding Sea Cross’s previous provision of labor to TETRA (discussing supervision a nd billing of c er tain courses and re quir ements for certain categories of labor). On February 22, 2016, TETRA sent Vertex a letter rejecting the bid it had submitted on December 21, 2015
. The letter noted that “as long as the issue of non

payment of Sea C ro ss for labor s upp lied to the Hedron in 2015 continues, further discussion of commercial terms for 2016 labor remains unlikely.” On March 4, 2016 , TETRA and Oceanwide entered into a labor

- supply contract ( TETRA

- Oceanwide contract ) that required Oceanwide “to ensure that7

TET RA is provided the same members of the foreign labor contingent supplied by Sea Cross or its affiliates to the Hedron during the 2015 season.” Vertex filed suit against Oceanwide for “ steali ng” the labor force it “spent a considerable a mount of money a nd time ” training to fulfill its obligations under the Oceanwide

- TETRA contract. It s petition alleged causes of action against Oceanwide for (1) tortious interference with the Vertex

- Sea Cross contract, (2) tortious interference with a pros pective business re lationship with Sea Cross, (3) misappropriation of Vertex’s “knowledge of the industry, business practices, and trained employees,” and (4) conspiracy to tortiously interfere with the Vertex

Sea Cross contract. Oceanwide filed a combined n o - evidence and t rad itional summary

- judgment motion on all of Vertex’s claims against it. The trial court signed an order granting Oceanwide’s motion. After stating that “ [t] he Motion is granted on all grounds stated therein , ” the order continued: Plaint if f makes the sens ibl e argument that, as one court put it, the defendants should not be able to reap where they have not sown. This “free ride” is couched as a claim for misappropriation. But if misappropriation fails then all four causes of action against t he Oceanwide def

end ants fail because it is the underlying tort. The Court has not found any case which applies the concept of misappropriation to people. The topic of workers being restricted in their movement has been extensively treated in its own case l aw, and more rec ent ly through Business and Commerce Code section 15.50. Because of this law and policy, the Court observes that had the workers in question been employed by the Plaintiff they could not8

have been prevented from going to work for Defendant s or anyone else. Why , then, where the Plaintiff does not employ the workers in question, could Plaintiff prevent them going to work for Defendants or anyone else? This case is not about non

- compete contracts. However, preventing competition and free movem en t of workers is wha t the case against the Oceanwide defendants is about. Plaintiff cannot do indirectly what it could not do directly. Vertex appeal ed
. Summary Judgment A. Standard of Review We review a trial court’ s summary judgment de novo
. Valenc e O per ating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003 ). In conducting our review, we take as true all evidence favorable to the nonmovant, and we indulge eve ry reasonable in fer enc e and resolve any doubts in the nonmovant’s favor. Valence Operating , 164 S.W.3d at 661; Knott , 128 S.W.3d at 215. A party seeking summary judgment may move for both traditional and no

evidence summary judgment. Binur v. Jacobo , 135 S.W.3d 646, 650 (Te x. 2004);

see T EX . R. C IV . P. 166a(c), (i). When a party has sought summary judgment on both grounds, we typically review first the propriety of the summary judgment under the no

- evidence standard. See Merriman v. XTO Energy, Inc. , 407 S .W.3d 244, 248 ( Tex . 2 013); Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004).9

Following an adequate time for discovery, a party may move for summary judgment on the basis that there is no evidence of on e or more essent ial elements of a claim on which the adverse part y would have the burden of proof at trial. T EX . R. C IV . P. 166a(i); LMB, Ltd. v. Moreno , 201 S.W.3d 686, 688 (Tex. 2006)
. To defeat a no

- evidence motion, the nonmovant must produce at least a scintilla of
ev ide nce raising a genuine issue of material fact a s to the challenged elements. Lightning Oil , 520 S.W.3d at 45. “More than a scintilla of evidence exists if the evidence ‘rises to a level that would enable reasonable and fair

- minded people to differ in the ir conclusions.’” Essex Crane Rental Corp. v. Car ter , 371 S.W.3d 366, 37 6 (Tex. App.

— Houston [1st Dist.] 2012, pet denied) (quoting Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)). A defendant moving for traditional summary judgment bears the burden of proving that no genuine issue s of material fact exist on at least one essential element of the cause of action ass erted against it and that it is entitled to judgment as a matter of law. T EX . R. C IV . P. 166a(c); Lightning Oil Co. v. Anadarko E&P Onshore, LLC , 520 S.W.3d 39, 45 (Tex. 2 017). If the movant meets its burden, the burden then shifts to th e nonmovant to r ais e a fact issue precluding summary judgment. See Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). When a trial court does not specify the ground s it r eli ed upon in making its determination, w e will affirm a summary

- judgment ruling if any of the grounds10

asserted in the motion are meritorious. Lightning Oil , 520 S.W.3d at 45; Beverick v. Koch Power, Inc. , 186 S.W.3d 145, 148 (Tex. App.

— Hou ston [1st Dist.] 20 05, pet. denied ). B. The Summary - Judgment Order In its first issue, Vertex complains about the trial court’s statement in its summary - judgment order that “if misappropriation fails then all four causes of action against the Oceanwide defend ants fail becaus e i t i s the underlying tort.” According to Vertex, this indicates that the trial court failed to consider each of its four claims against Oceanwide individually. The challenged statement does not supplant the trial court’s statement that O ceanwide’s motio n i s g ranted “on all grounds stated therein.” Further, conclusions of law are not appropriate under summary judgment procedure because “if summary judgment is proper, there are no facts to find, and the legal conclusions have already been s tated in the mot ion an d response. ” Hudson v. City of Houston , 392 S.W.3d 714, 720 n.6 (Tex. App.

— Houston [1st Dist.] 2011, pet. denied)
. Thus , to the extent the complained

- of statement can be characterized as a legal conclusion (as opposed to an offer of i nsight into the tri al court’s legal reasoning ), we will not consider it in our review for that additional reason
. See IKB Indus. v. Pro Line Corp. , 938 S.W.2d 440, 441 (Tex. 1997) (“[F]indings and11

conclusions following summary judgment can have no purpose, should not be f ile d, and if filed, should be ignored by the trial court . . . .”). We therefore overrule Vertex’s first issue

. C. Misappropriation In its second issue and in a portion of its fourth, Vertex challenges the trial court’s rendition of no - eviden ce summary judgm ent on its misappropriation claim. It argues that it presented evidence of each of the elements of misappropriation , and that the trial court failed to recognize that misappropriation “covers the type of unfair business practices Oceanwide engaged in .” The e l eme nts of common law misappropriation (also called unfair competition) are “ (1) the creation of plaintiff’s product through extensive time, labor, skill, and money; (2) the defendant’s use of that product in competition with the plaintiff , thereby gaini ng a s pecial advantage in that competition (i.e., a “free ride”) because defendant is burdened with little or none of the expense incurred by the plaintiff; and (3) commercial damage to the plaintiff. ” BP Auto., L.P. v. RML Waxahachie Dodge, L.L.C. , 448 S. W.3d 5 62, 571

– 72 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) ; United States Sporting Prods., Inc. v. Johnny Stewart Game Calls, Inc. , 865 S.W.2d 214, 218 (Tex. App.

— Waco 1993, writ denied). In b oth of its issues challenging the trial court ’s rendition o f sum m ary judgment on its misappropriation claim, Vertex argues that its “knowledge of the12

sourcing and provision of offshore labor to TETRA ” qualifies as a “ work product ” within the meaning of the first element. According t o Vertex, the trial court erred by “na r rowly focusing on the workers as sort of a commodity ” because a common law misappropriation claim “encompasses the value of one’s labor (i.e., expertise, plus time, toil and talent)
. ” Specifically, Vertex maintains that the “ institutional knowledge tha t i t developed over time and used to craft this pool of labor, ” the training and certifications that it provided to the labor pool, and its “ ability to navigate the international customs issues involved ” constitute its work product
. Recognizing that knowle dge , training, and expertise are not typically considered “products,” Vertex relies on a 1993 Waco C ourt of A ppeals case to support its argument that such intangibles are capable of misappropriation. In U.S. Sporting Products, Inc. v. Johnny Stewart Game , 865 S.W.2d 214 (Tex. App.

— Waco 1993, writ denied) , a com pany that sold tape recordings of animal sounds sued a sporting goods company and its president for tortious misappropriation of the recordings
. T he court held that the tape recordings could be misappr op ri ated because “[ a] complainant has a protectable property interest in the product of his labor, regardless of subject matter, so long as that matter confers on him a commercial advantage.” Id. at 2 19. We do not disagree with the Waco court. But its hold i ng addresses a sal eable product with commercial value and thus does nothing to answer the question13

whether knowledge , training, and expertise of human labor can be considered product s capable of misappropriation
. In Th omason v. Collin s & Aikman Floorcover ings, Inc. , No. 04

- 02

- 00870

- CV, 2004 WL 624926, at *4 (Tex. App.

— San Antonio Mar. 31, 2004, pet. denied) (mem. op.) , a carpet salesperson sued a carpet manufacturer, alleg ing it had misa ppropriated the “fr uits of [his] knowledge, work and efforts
. ” The sal esperson argued that his efforts to convince the State of Texas to adopt particular carpet specifications that only the c arpet manufacturer could fulfill cons t ituted a “work p roduct” that could be misa ppropriated
. Id. The court of appeals disagreed, holdin g that “[a] lthough there is no doubt that [plaintiff]’ s time, labor, and skill went into securing [defendant] ’s position on the [ contract ] , these efforts did not result in a

‘ work product ’ s ubject to appropri atio n by a competitor. ” Id. We conclude that Ve rtex’s knowledge, effort, and expertise are not work products capable of being misappropriated. Similarly, training and certification are not distinct saleable work p roduct s , because once imparted , they are inseparable from the laborers themselves. Cf. Woo ters v. Unitech Int’l, Inc. , 513 S.W.3d 754, 763 (Tex. App.

— Houston [1st Dist.] 2017, pet. denied) ( “ An employee
. . . may use his general skills and knowledge obtained thro ugh employment to compete with t he former employer. ” ) ; Sharma v. Vinmar Int’l, Ltd. , 231 S.W.3d 405, 424 (Tex. App.

— Houston [14th Dist.] 2007, no pet.) ( former employee s not b arred14

from using “ general knowledge, skill, and experience acquired during employ ment ” in s ubsequent employment ). Finally, to the extent Vertex argues that the work force itself was a product, the Vertex

- Sea Cross contract it relies on to defeat summary judgment belies this assertion : it states tha t Sea Cross “agrees to provide laborer s, on an as needed basis,” and that “all employees are employed, paid by, and under the direct supervision” of Sea Cross. Vertex did not have the right to any particular Sea Cross employees
. See Wal

- Mart Stores, Inc. v. Sturges , 52 S.W.3d at 727 ( “Wh en two parties are competing for interests to which neither is entitled, then neither can be said to be more justified or privileged in his pursuit. If the conduct of each is lawful, neither should be heard to complain that mere unfairne ss is actionable.” )
. All the Vertex

- Sea Cross contract entitled Vertex to rec ei ve was a supply of laborers at specified rates. Thus , losing access to the particular Sea Cross employees it had honed and improved to work on TETRA’s Hedron was Vertex ’s risk t o bear
. Because Ver tex failed to present evidence that it created a product subject to mis appropriation , the trial court did not err by granting Oceanwide’s no

evidence summary

-

judgment motion on Vertex’s common

- law misappropriation clai m. We overrule Ver tex’s second issue and the portion of its fourth issue addressing the common - law misappropriation claim.15

D. Tor tious Interference with Contract In its third issue and a portion of its fourth , Vertex argues that the trial court erred by gra nting Oceanwide’s m otion for summary j udgment on its claim for tortious interference with contract because (1) the motion addres sed the wrong contract, and (2) there is more than a scintilla of evidence to support each of the elements of its claim. Vertex argues that Oceanwide’s summary

- judgment motion failed to address the correct contract , and therefore did not assert grounds fo r summary judgment on its tortious interference with contract claim
. Verte x allege d in its pe tition that Oceanwide interfere d with its contract with Sea Cross Marine
. B ut in its summary

judgment motion, Oceanwide mistakenly addressed only Vertex’s contract with TETRA
. 4 For example, Oceanwide stated that “Verte x did not have an e xisting contract wi th Tetra that was subject to interference during the relevant time period” and “Oceanwide did not commit a knowing and intentional act of interference with Vertex’ s contract with Tetra.” Likewise, Oceanwide attached ev idence that pertain ed only to the Vert ex - TETRA contract. We conclude that Oceanwide’s summary - judgment motion addressed the wrong contract and therefore did not place Vertex’s claim for tortious inter ference

4 Oceanwide explains that the Vertex

- TETRA contract “was the only contract that discovery had reve a led was in existence and the only contrac t with which Oc eanwide had any involvement. The loss of the Vertex/TETRA contract was the only basis upon which Vertex could base a claim for damages.”16

before the trial court. See Timpte Indus., Inc . v. Gish , 286 S.W. 3d 306, 310 (Tex. 2 009) ( trial court may not grant summary judgment on grounds not presented in motion ); Narnia Invs., Ltd v. Harvestons Sec., Inc. , No. 14

- 10

- 00244

- CV, 2011 WL 344761 1, at *5 (Tex. App.

— Houston [14th Dist.] Aug. 9, 2011, no pet. (mem. op.) ( trial court erred in granting summary judgment on claims not addressed in summary - judgment motion because motion “neither conclusively disprove [d] any element ” “ nor challenge [d] the existence of any evidence of any element ” of unmentio ned claims ) ; s e e also Nnah v. 125 Interes ts, Inc. , No. 14

- 15

- 00443

- CV, 2016 WL 4543685, at *6 (Tex. App.

— Houston [1st Dist.] Aug. 31, 2016, pet. denied) (mem. op.) ( two appellees failed to seek summary judgment on appellant ’s breach of contract claim against them where their no - evidence motion ch allenged only appel lant’s contract wit h different appellee )
. Therefore, the trial court erred by granting appellees more relief than t hey sought in their summary judgment motion
. Conceding as much, Oceanwide argues that its no - evidence summary judgment motion adequately challenge d Vertex’s claim with regard to the Vertex

Sea Cross contract by including statements suc h as “Vertex has no evidence to suppor t critical elements of each of the causes of action that it has asserted against Oceanwide,” and request ing dismissal of “all claims in this matter” against it. But because these general statements do not identify which elements of Vertex’s claim for torti ous interf

erence with the Vertex

- Sea Cross contract Oceanwide is17

challenging , they do not satisfy the “specificity requirement” for a no

- evidence motion. See T EX . R. C IV . P. 166a(i) ( no - evidence summary judgment m ust state

“ elements as to w hich there is no evidence ” ) ; see also Nnah , 2016 WL 4543685, at *6 (no

- evidence motion that did not address breach of specific contract failed to seek judgment on that contract despite global state ments that motion is directed to “all remaining causes of a ction” and that nonmovant ha d no support for “element numbers 1 through 6” ) ; Guest v. Cochran , 993 S.W.2d 397, 402 (Tex. App.

— Houston [14th Dist.] 1999, no pet.) ( holding that sentence in summary

- judgment motion purporting to seek judgm ent “ regarding all claims and cau ses of action asserted ” in p laintiff’s r esponse to s pecial e xceptions and first am en ded petition
was insufficient to place all claims at issue because motion made “ no mention of or ref erence to ” of c ertain of plaintiff ’ s claims ). We conclu de that because it a rgued, pre sen ted evidence, and challenged elements of tortious interference only with regard to the Vertex

- TETRA contract, Oceanwide’s motion did not raise grounds for summary judgment on Vertex’s claim for tortious interference with th e Vertex

Sea Cross M arine cont rac t. Oceanwide next argues that even if it s summary - judgment motion itself did not su cc eed in putting Vertex’s claim for tortious interference with the Sea Cross contract before the court , Vertex ’s response and its reply did
. A summary judgment motion “ m ust stand or fall on the grounds expressly presented in the18

motion. ” McConnell v. Southside Indep. Sch. Dist. , 858 S.W.2d 337, 341 (Tex. 1993)
. And with specific regard to repl ies, w e have held th at when a pla intiff

a mends its petition to add claims agains t a summary - judgment movant , the movant may not address the new claims by reply but must instead file an amended or supplemental motion
. Blancett v. Lagniappe Ventures, Inc. , 1 77 S.W.3d 584, 592 ( Tex. App.

— Hou ston [1st Dist.] 2005, no pet.) (citing McConne ll , 858 S.W.2d at 341). The purpose of this rule is to avoid unfairness to the nonmovant by assuring it sufficient information and time to respond to the summary

- judgment motio n . See McConnell , 85 8 S.W.2d at 3 40

– 41 (Rule 166a(c) do es not permit summary jud gment movant “to place, or possibly hide, grounds for summary judgment in a brief filed in support of the motion or in accompanying summary judgment evidence ); Sanders v. Capit ol Area Council , 930 S.W.2d 905, 911 (Tex. App.

— Austin 1996, no writ) (“The purp ose of the time requirements in [R]ule 166a(c), to give the nonmovant notice of all claims that may be summarily disposed of and the specific grounds on which the movant relies , would be severely undercut if a movant’s ‘reply’ in which new independent grou nds were presented could be treated as an amended motion for summary judgment.”) ; Sams v. N.L. Indus., Inc. , 735 S.W.2d 486, 488 (Tex. App.

— Houston [1st Dist.] 1987, no writ) ( granting summary jud gment on grou nds added in reply would deprive nonmovant of h earing and mandatory 21

– day notice of hearing required by Rule 166a(c)); cf.19

Sartin v. Beacon Mar., Inc. , No. 09

- 08

- 00166

- CV, 2009 WL 1076815, at *3 (Tex. App.

— Beaumont Apr. 23 , 2009, no pet.) (me m. op.) (“A t rial court cannot grant summary judgment on a c ause of action addressed only in movant’s reply brief, which in this case was filed the Friday afternoon before the Monday hearing.”)

. Disregarding the parties’ summary - judgmen t briefing addressin g Vertex’s cl aim for tortious interference with the Sea Cros s contract would serve no purpose here, where Oceanwide ’s reply did not introduce a summary - judgment ground that Vertex had not had occasion to address . Rather, it replied to t he assertion in Vert ex’s response that Oceanwide had misidentified the contract with which it had allegedly interfered . By its reply, Oceanwide corrected its mistake, specifically identif ying the elements of Vertex’s claim for tortious interference with it s contract with Sea Cross that it contended lacked eviden tiary support
. See T EX . R. C IV . P. 166a(i) ( no - evidence summary judgment must state “ elements as to which there is no evidence ”). Importantly, Vertex does not claim to have been prejudiced by this , a nd we cannot imagine how it could have been, given that in its response, it not only argued but also presented evidence in an effort to defeat no - evidence summary judgment on its pleaded claim of tortious interference with the correct (Vertex

- Sea Cross) co ntract. See Blakey v . Texas Dep’t of Health , No. 03

- 02

- 00682

- CV, 2004 WL 334866, at *6 (Tex. App.

— Austin Feb. 12, 2004, no pet.) (mem. op.) (“If a nonmovant is not prejudiced and deprived of fair notice of the20

grounds underlying the motion for summary judg ment and had a fair opportunity t o respond, we are not convinced that a movant a lways would be prohibited from including an additional ground for summary judgment in a reply.”). And there is no indication from the record that the trial court’s hearing on t he motion, response, and reply to ok place sooner than 21 days after Oceanwide fi led its reply
. See id. ; see also Sams , 735 S.W.2d at 488 (granting summary judgment on grounds added in reply would deprive nonmovant of hearing and mandatory 21

– day notice of hearing required by Rule 166a(c))
. Furthermore , our review of Vertex’s response and Oceanwide’s reply indicates that both parties directly addressed and fully briefed Oceanwide’s no

evidence grounds for summary judgment on Vertex’s claim for tortious inter ference with its con tract with Se a Cross. The trial court’s order granting

summa ry judgment confirms that it considered the motion “along with the Response, Reply, summary judgment evidence and oral argument.” For these reasons, we, too, consider the respo nse and reply in hol ding that the issue was tried by consent. See PAS, Inc. v. E ngel , 350 S.W.3d 602, 610 (Tex. App.

— Houston [14th Dist.] June 28, 2011, no pet.) ( “Trial by consent may be appropriate in some limited summary judgment contexts.” (citing Roar k v. Stallworth Oil & Gas Inc. , 8 13 S.W.2d 492, 495 (Tex. 1991) ) ) ; Henny v. JPMo rgan Chase Bank, N.A. , No. 01

- 10

- 00476

- CV, 2012 WL 524429, at * 4

– 5 (Tex. App.

— Houston [1st Dist.] Feb.21

16, 2012, no pet.) (mem. op.) (applying concept of “ trial by consent ” to m otion to dismiss, b ut holding aff

irmative defenses not addressed in motion were not tried by consent because it was unclear that they “were fully discussed and tried by the parties [in their response and reply] as claimed by [movant]”)

. Because it was tried by consen t, the t rial court did not err in granting summary judgment on Verte x’s claim for tortious interference with its contract with Sea Cross
. With regard to the portion of its fourth issue dealing with its tortious interference with contract claim, Vert ex argues that it presented evide nce to defeat Oceanwide’s challenge to ea ch of the elements of th at claim. See T EX . R. C IV . P. 166a(i)
. To establish a cause of action for tortious interference with contract, a plaintiff must prove that (1) a contract sub ject to interf

erence exists, (2) the defendant committed a willful and int entional act of interference with the contract , (3) the act proximately caused injury, and (4) the plaintiff sustained actual damages or loss. Exxon Mobil Corp. v. Rincones , 520 S.W. 3d 572, 588 (T ex. 2017) ; Better B us. Bureau of Metro. Houston, Inc. v. Joh n Moore Servs., Inc. , 441 S.W.3d 345, 361 (Tex. App.

— Houston [1st Dist.] 2013, pet. denied). Oceanwide argues that t here is no evidence that the Vertex

- Sea Cross contract was in e ffect when Oceanw ide is alleged t o have interfered with it
. We agree.22

Vertex presented its June 20, 2010 contract with Sea Cross, along with affidavit testimony that although the contract stated an end date of October 9, 2010, the parties continued to ope rate pursuant to its terms “until February 2016 when Sea Cross Marine decided to no longer provide foreign la bor for offshore use to Vertex.” Vertex also presented Sea Cross’s December 15, 2015 letter stating that Sea Cross “ has had an ongoing relationship with Vertex Serv ices for the pas t 6 years . ” But Vertex did not present any e vidence to pinpoint the date on which Sea Cross ended th is arrangement. Critically, t he only evidence of Oceanwide’s alleged interference consists of two emails between Oceanwide and Sea Cross, bo th dated Februar y 8, 2016
. Thus, there is no evidence to sho w that Vertex and Sea Cross
were still operating under the extended contract , which Vertex claims ended in “February 2016,” when Oceanwide is alleged to have interfered with it. 5 Further, even if Vertex had pres ented evidence that its contract with Sea Cr oss was in force when the alleged interference occurred , there is no evidence that Oceanwide committed a willful and intentional act of interference with it
. See Rincones , 520 S.W .3d at 588
. Indee d, Ver tex has no t offered any evidence to show that Oceanwid e knew that the Vertex

- Sea Cross contract was in effect (if indeed it was) at the time it was alleged to have interfered with it. Mark III Sys., Inc. v.

5 Further, Vertex’s summary

- judgment response attached text m essages dated February 1

– 4, 2016, between Ho and Oceanwi de’s president , John Ford, which suggest that Oceanwide’s understanding was that the contract between Ho ( through one of his companies ) and Vertex was no longer in effect.23

Sysco Corp. , No. 01

- 05

- 004 88

- CV, 2007 WL 52 9960, at *5 (Tex. App.

— Houston [1st Dist.] Feb. 22, 2007, no pet.) (mem. op.) (“To be subject to liability [ for tortious interference with contract ] , an actor must have knowledge of the contract or relation with which he is interfering and of the fact that he is interfering w ith the performa nce of that contract.”)

. All Vertex’s evidence shows is that Oceanwide knew that Sea Cross had previously supplied TETRA’s Hedron labor force through Vertex. E ven if Vertex had presented evidence that the Vertex

- Sea Cr oss con tract
was in effect at the pertinen t time , and that Oc eanwide was aware of it, to survive

no - evidence summary judgment, Vertex would still have to present evidence that Oceanwide willfully and intentionally interfered with the contract
. See Rincones , 520 S.W .3d at 5 88 ; see also Ellis v. McK inney , No. 01

- 00

- 01 098

- CV, 2001 WL 1445892, at *5 (Tex. App.

— Houston [1st Dist.] Nov. 15, 2001, pet. denied) (“Merely contracting with someone while knowing of that person’s contract with another is not the same as inducing a breac h.” ). Vertex argues that the Oceanwide

TETRA contract’s requirement that Oceanwide use the same workforce that Vertex had supplied to TETRA through its contract with Sea Cross is evidence of Oceanwide’s willful and intentional interference, because “t he on ly way to obtain the exac t same labor force that was used during 2015 was to interfere with the Vertex and Sea Cross Marine agreement in order to steal the workers then being24

provided to Vertex. ” T he fact that the Oceanwide

- TETRA contract requi red Ocea nwide to use the 2015 Hed ron workforce does not compel the conclusion that Oceanwide willfully and intentionally interfered with the Vertex

- Sea Cross contract
. Missing is any evidence that Oceanwide was “more than a willing participant” in any brea ch Sea C ross may have committed, or in other words, that it “took an active part in persuading” or “ knowingly induced ” Sea Cross to breach its contract with Vertex. See Ferrara v. Nutt , 555 S.W.3d 227, 243 (Tex. App.

— Houston [1st Dist.] 2018, no pet.) (“T o establ ish a willful and intenti onal act of interference , there must be evidence that the defendant was more than a willing participant

—

the defendant must have knowingly induced one of the contracting parties to breach its obligations under a contract.” (citation omitted) ); see also Fitness Evolution, L.P. v. H eadhunter Fitness, L.L.C. , No. 05

- 13

- 00506

- CV, 2015 WL 6750047, at *23 (Tex. App.

— Dallas Nov. 4, 2015, no pet.) (mem. op.) (to survive summary judgment on tortious interference with contract claim, nonmovant must prese nt “some direct evidence of a wil lful act of interference” ) (citing Browning

– Ferris, Inc. v. Reyna , 865 S.W.2d 925, 927 (Tex. 1993) ; Rugaart v. Rodriguez , No. 13

- 02

- 00116

- CV, 2003 WL 22671571, at *4 (Tex. App.

— Corpus Christi Nov. 13, 2003, no pe t.) (mem. o p.) (plaintiff must show that def endan t “took an active part in persuading” party to contract to breach).25

Vertex next argues that the February 8, 2016 email from Jim Ireland of O ceanwide to Melanie Fite of TETRA indicat ing that Ireland and Jimm y Ho had

ea rlier communicated about how the Verte x - Sea Cross contract dealt with certain issues (supervision and billing for courses the Hedron laborers were required to complete) shows Oceanwide’s willful and intentional interference. According to Vertex, this shows that Oceanwide “ committed an int entio nal act of interference with the contract by contacting Jimmy Ho about breaching it.” We disagree. First, there is no evidence that Ireland initiated the contact with Ho or sought the information he relayed
. Other of Vertex’s summary

- judgmen t evidence ind icates that the opposite is true: Ho’s email to Ireland earlier that day set forth the precise information relayed in the Ireland

- Fite email at issue , in response to Ireland’s one

- line email asking, “Who is Se a Cross?” Second , the February 8 , 2016 email sh ows only that Oceanwide and Ho had discussed certain aspects of TETRA’s training and staffing needs , not that Oceanwide “knowingly induced” Sea Cross (through Ho) to breach the Vertex

- Sea Cross cont ract. See Ferrara , 555 S.W.3d at 243 ; see a lso Fluor Enter s., Inc. v. Conex Int’l Corp. , 273 S.W.3d 426, 443 (Tex. App.

— Beaumont 2008, pet. denied) (defendant’s intent must be to effect breach of the contract). 6

6 The e a rly February 2016 text messages between H o and John Ford attached to Verte x’s summary

-

judgment response are inconsistent with Vertex’s assertion that Oceanwide induce d Sea Cross (through Ho) to breach any contractual obligation it26

Accordingly, w e hold that Vertex has not pr esented ev idence that Oceanwide acted to in duce Sea Cross to terminate its contract with Vertex
. See Lightning Oil , 520 S.W.3d at 45 (to survive no

- evidence summary

- judgment, nonmovant must produce “at least a scintilla of evidence raising a genuine issue of materia l fact as to the challenged eleme nts”). Finally, with regard to proximate cause, assuming again that the Vertex

- Sea Cross contract was still in effect, Vertex has not presented any evidence that Sea Cross breached it
. Vertex presented Green’s dec laration s tating that t he parties continued to operate und er the contract past its expiration date of October 9, 2010 until February 2016 . But Vertex has not offered any evidence or cited any legal authority to show that Sea Cross did not have the right to terminate the contract when it did
. As the Texas Supreme Court has held, “merely inducing a contract obligor to do what it has a right to do is not actionable interference.” ACS Investors, Inc. v. McLaughlin , 943 S.W.2d 426, 430 (Tex. 1997). In other word s, Vertex has no cause of action against Oc eanwide for ind ucing Sea Cross to do what it had a right to do
. See id.; Schimmel v. McGregor , 438 S.W.3d 847, 861 (Tex. App.

— Houston [1st Dist.] 2014, pet. denied) ; see also Faucette v. Chantos , may have had to Vertex. F or example, the texts indicate that Ho wa s already in separate discussions with TETRA when the text exchanges occurred . The texts also show that Ford merely asked Ho whether he thought TETRA would consider using Oceanwide as Ho ’ s (th rough Sea Cross) partner in supp l ying labor for 2016 , and that Ho responde d that he would tell TE TRA he wanted TETRA to use Oceanwide if Ford would agree to allow Ho to maintain his rates
.27

322 S.W .3d 901, 9 14 (Tex. App.

— Houston [ 14th Dist.] 2010, no pet.) (“[M]ere ly inducing one of the parties to exercise his right to terminate contractual relations after giving the required notice does not necessarily constitute tortious interference with contract under Tex as law.” (quotation omitted) ). Any “ harm th at results only from lawful competition is not compensable by the interference tort.” Wal

- Mart Stores, Inc. v. Sturges , 52 S.W.3d 711, 727 (Tex. 2001). No reasonable juror could find that Oceanwide interfered with the Verte x Sea Cross contract based upon t he record evide nce . See Goodyear Tire & Rubber Co. v. Mayes , 236 S.W.3d 754, 755 (Tex. 2007) (in reviewing summary judgment, appellate courts “must consider whether reasonable and fair

- minded jurors could differ i n their co nclusions in light of all of the evidence presen ted”). We therefore hold that Vertex has not presented any evidence that Oceanwide willfully and intentionally interfered with the Vertex

- Sea Cross contract. We overrule Vertex’s second issue and t he portion of its fourth issue addressing i ts tortious int erference with contract claim
. E. Tortious Interference with Prospective Business Relations As part of its fourth issue , Vertex argues that the trial court erred in granting Oceanwide’s motion for summ ary judgme nt on its tortious interference w ith prospective business relations claim because it presented more than a scintilla of28

evidence to support the essential elements of that claim
. 7 Vertex’s only appellate challenge to the court’s rendition of summa ry judgment on this claim is that it presen ted evidence th at Oceanwide tortiously interfered with its prospective business relations with TETRA. But in its live petition, Vertex only allege s interference with its prospective business relations with Sea Cro ss . Likewise, Oceanwide moved for summary j udgment , and th e trial court, in rendering summary judgment on all grounds alleged in Oceanwide’s motion, granted summary judgment on Vertex’s tortious interference with prospective business relations claim based on ly on Vertex’s relations with Sea Cross
. Because Vertex has failed to challenge the only grounds on which the trial court rendered summary judgment on Vertex’s tortious interference with prospective business relations claim, we affirm the judgment of th e trial court. See Hernandez v. Kroger Texa s L.P. , No. 01

- 15

- 00836

- CV, 2017 WL 1429200, at *2 (Tex. App.

— Houston [1st Dist.] Apr. 20, 2017, pet. denied) (mem. op.) ( “If

7 To establish a cause of action for tortious interference with prospective contract or business relationships, a plaintiff must show that (1) there was a reasona ble probability that the parties would have entered into a business relationship; (2) the defendant committed an independently tortious or unlawful act that prevented the relationsh i p from occurring; (3) the defendant eithe r acted with a conscious desire t o prevent the relationship from occurring or knew the interference was certain or substantially certain to occur as a result of the conduct; and (4) the plaintiff suffered actual ha r m or damages as a result of the defendant ’s interference. Better Bus. Bure au of Metro. Houston, Inc. v. John Moore Servs., Inc. , 441 S.W.3d 345, 361

– 62 (Tex. App.

— Houston [1st Dist.] 2013, pet. denied); Richardson

– Eagle, Inc. v. William M. Mercer, Inc. , 2 1 3 S.W.3d 469, 475 (Tex. App.

— Houston [1st Dist.] 2006, pet. denied).29

summary judgment may have been rendered, properly or improperly, on a ground not challe ng ed, the judgment must be affirmed.” )
. We overrule the p ortion of Vertex’s fourth issue addressing its tortious interference with prospective business relations claim
. F. Conspiracy In a portion of its fourth issue, Vertex argues that it produced sufficient

e vidence on each of the elements of its ci vil conspiracy claim to survive Oceanwide’s no

- evidence summary

- judgment motion
. The Texas Supreme Court has defined the elements of civil conspiracy as: “(1) two or more persons; (2) an object to be accomplished ; (3) a meeting of minds on the object or c ourse of action ; (4) one or more unlawful, overt acts; and (5) damages as the proximate result.” Agar Corp., Inc. v. Electro Circuits Int’l, LLC , No. 17

- 0630,

— S.W.3d

— , 2019 WL 1495211, at *4 (Tex. Apr. 5, 2019) (quoting Ma ss ey v. Armco Steel Co. , 652 S.W.2d 932, 93 4 ( Tex. 1983) )
. Civil c onspiracy is not an independent tor t, but a derivative tort that depends on participation in some underlying tort for which the plaintiff seeks to hold the defendant liable. Id. ; Tilton v. Marshall , 925 S.W.2d 672, 681 ( Tex. 1996). Ther efore , civil conspiracy “ survives or fails alongside” the underlying tort alleged. Agar , 2019 WL 1495211, at *3.30

Vertex argues on appeal that Oceanwide conspired with T ETRA to wrongfully interfere w it h Vertex’s contract with Sea Cross

. Becau se we have hel d that Vertex’s tortious interference with contract claim did not survive summary judgment, we further hold that its civil conspiracy claim “fails alongside ” it. Id. Conclusion We affirm the trial c ou rt’s summary - judgment order.

Pe ter Kelly Justice Panel consists of Justices Keyes, Kelly, and Goodman.