Affirmed in Part; Reversed and Remanded in Part; and Memorandum Opinion 

filed February 5, 2019.

In The 

Fourteenth Court of Appeals 

NO. 14-17-00257-CV

RICHARD D. DAVIS, L.L.P., A TEXAS GENERAL PARTNERSHIP, 

RICHARD D. DAVIS, L.L.P, A NEVADA LIMITED LIABILITY 

PARTNERSHIP, AND PATRICIA K. SUAREZ, Appellants 

V.

ANDY KNOTT, BILL GREEN, DEMPSEY GEAREN, JIM PHILLIPS, 

PHIL BIRKELBACH, DANNY LANGHORNE, HANS VAN DER VOORT, 

GENE MORTON, STANLEY HOFFPAUIR AND PAUL KATES, Appellees 

On Appeal from the 506th Judicial District Court 

Waller County, Texas 

Trial Court Cause No. 08-12-19600-A 

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

This appeal arises from the granting of a no-evidence summary judgment 

entered January 4, 2017 and is one of three before this court involving the same 
2

parties.1 For the reasons stated below, we affirm in part and reverse and remand in 

part. 

BACKGROUND

In 1993, Richard D. Davis, L.L.P., a Texas General Partnership, (“Davis 

Texas”) purchased a 55-acre tract from Sky Lakes, Inc., that was secured by a deed 

of trust. In 2006, the promissory note was assigned to the Sky Lakes Flyers 

Foundation (“SLFF”).2 Shortly thereafter, SLFF sent notices of default based on 

various allegations, including failure to provide proof of insurance and payment of 

taxes, and the condition of the property. In August 2007, Davis Texas filed suit (the 

“2007 suit”) against SLFF and Carbett J. Duhon, III. 

In September 2007, SLFF refused Davis Texas’ check for the August 2007 

payment on the grounds the note had been accelerated. Davis Texas obtained 

injunctive relief to prevent foreclosure and in September 2007 refinanced at an 

interest rate of fourteen and a half percent (14.5%) rather than the original rate of 

five percent (5%) and transferred its interest in the property to Richard D. Davis, 

L.L.P., a Nevada Limited Liability Partnership, (“Davis Nevada”). SLFF also filed 

a counterclaim in the 2007 suit and named Richard D. Davis and Patricia K. Suarez 

as third-party defendants. SLFF asserted breach of contract and sought a non-judicial 

foreclosure on the property. 

 

1

 Before this court is also Appeal No. 14-17-00278-CV, arising from a judgment entered 

January 10, 2017 upon a jury verdict in Trial Court Cause No. 08-12-19600, and Appeal No. 14-

17-00372-CV, an appeal from another summary judgment entered in Trial Court Cause No. 07-

08-18999 on April 7, 2017.

2 This assignment was part of a settlement from a lawsuit brought against Waller Country 

Club Estates and George Robinson complaining they had violated a right of first refusal to 

purchase the property. 
3

Subsequently, suit was brought in 2008 (the “2008 suit”) by Andy Knott, Bill 

Green, Dempsey Gearen, Jim Phillips, Phil Birkelbach, Paul Kates, Danny

Langhorne, Hans van der Voort, Gene Morton and Stanley Hoffpauir (collectively 

“the Green Parties”), against Davis Nevada, Davis Texas and Patricia K. Suarez

(collectively “the Davis Parties”), and Jump Out Express, L.L.C.3for breach of 

contract, tortious interference with use and enjoyment of property, nuisance, a 

request for equitable relief in the form of a temporary and permanent injunction, and 

attorney’s fees.4In June 2009, the trial court granted the Green Parties’ motion for 

temporary injunction. 

The Davis Parties counterclaimed in the 2008 suit, seeking damages from the 

Green Parties, in their individual capacities, for their alleged orchestration of the 

“wrongful” acceleration of the note and the ensuing “illegal” efforts to foreclose. 

Specifically, the Davis Parties counterclaimed for: 

1. Temporary and permanent injunction; 

2. Breach of contract and violation of restrictive covenants; 

3. Fraud; 

4. Tortious interference with contracts and business relations and business 

disparagement; 

5. Trespass; 

6. Declaratory judgment; 

7. Violation of automatic stay; 

 

3 The plaintiffs’ claims against Jump Out Express were eventually settled and on February 

18, 2010, the trial court signed an agreed order severing those claims into Trial Court Cause No. 

08-12-019600-B.

4

 Plaintiffs’ third amended petition named Bennie Ortman as an additional defendant. 

Subsequently, Ortman filed a notice of removal to the United States District Court for the Southern 

District of Texas. That court granted plaintiffs’ emergency motion and remanded the case to the 

155th Judicial District Court of Waller County for lack of subject matter jurisdiction. Plaintiffs’ 

later filed a notice of non-suit as to Ortman.
4

8. Economic coercion and duress; 

9. Conspiracy; and 

10. Wrongful acceleration.5

By order signed February 4, 2010 these counterclaims were severed into the suit 

underlying this appeal (the “2010 suit”). The Green Parties moved for no-evidence 

summary judgment on December 2, 2016, as to the following claims:

1. Breach of contract; 

2. Fraud; 

3. Tortious interference with contracts and business relations; and business 

disparagement; 

4. Violation of automatic stay; 

5. Conspiracy; and 

6. Wrongful acceleration; 

In their motion, the Green Parties asserted the Davis Parties’ claims for temporary 

and permanent injunction, breach of restrictive covenants, declaratory judgment, and 

trespass6 were tried to a verdict in the 2008 suit. Further, the Green Parties argued 

the Davis Parties’ claim for economic coercion and duress was not a cause of action 

but an affirmative defense. 

The trial court granted summary judgment in favor of the Green Parties on all 

counterclaims. Further, the trial court found the Davis Parties’ first amended 

counterclaim, which pled a new cause of action for violation of the Texas Debt 

Collection Act (“TDCA”), was untimely filed on December 27, 2016, and did not 

 

5 Defendants also filed a third-party action against Sky Lakes Addition Section II, An 

Association of Lot Owners, Sky Lakes Flyers Foundation, Sky Lakes Addition Section II 

Successor Building Committee, Carbett J. Duhon, III, and Charles E. Radcliffe. The trial court 

subsequently struck the third-party action.

6

 The cause of action for trespass was expressly not severed into Trial Court Cause No. 08-

12-19600-A but remained in the original cause number.
5

consider it. In its order granting the Green Parties’ summary judgment, the trial court 

expressly found the amended counterclaim “was untimely filed and the Court takes 

no consideration of the elements alleged therein.” The trial court then ordered that 

“[the Davis Parties] have no further remaining claims and this is a final judgment.” 

The Davis Parties agree that the cause of action for temporary and permanent 

injunction was tried to a final judgment in the 2008 suit. The Davis Parties do not

dispute that the claims for violation of restrictive covenants and declaratory 

judgment were tried in the 2008 suit, our record in the appeal from the 2008 suit

reflects the accuracy of the Green Parties’ assertion to that effect, and the Davis 

Parties make no argument on appeal regarding those causes of action. Accordingly, 

this appeal does not concern the claims for injunctive relief, violation of restrictive 

covenants, or declaratory judgment.

The Davis Parties timely filed a motion for new trial on February 3, 2017. The 

motion was overruled by operation of law on March 20, 2017. A timely notice of 

appeal was filed by the Davis Parties on April 3, 2017. 

On appeal, the Davis Parties claim the trial court erred: (1) in granting the 

Green Parties’ no-evidence motion for summary judgment; (2) by refusing to 

consider the Davis Parties’ amended counterclaim; and (3) by denying the Davis

Parties’ motion for new trial. We initially consider their second issue. 

THE FIRST AMENDED COUNTERCLAIM

The Green Parties filed their no-evidence motion for summary judgment on 

December 2, 2016. That same day, they also filed a Notice of Submission for the 

motion to be submitted without oral hearing on or after January 2, 2017. On 

December 26, 2016 the Davis Parties filed an objection to and motion to strike the 

notice of submission. The Davis Parties’ attached the Waller County 2016 Holiday 
6

Schedule which reflects that Monday, December 26, 2016 was a holiday and the 

County Clerk Holiday Schedule for 2017 showing New Years’ Day was being 

observed on Monday, January 2, 2017. On December 27, 2016 the Davis Parties 

filed a motion to continue submission of the no-evidence motion for summary 

judgment for thirty days. Later that same day, the Davis Parties filed their first 

amended counterclaim. In its order, the trial court overruled the Davis Parties’ 

motion for continuance and objection to notice of submission. 

In their second issue, the Davis Parties contend the trial court erred by refusing 

to consider their amended counterclaim. Parties may amend their pleadings provided 

that any pleading offered for filing within seven days of the date of trial “shall be 

filed only after leave of the judge is obtained.” Tex. R. Civ. P. 63. Thus, amendment 

without leave of court is authorized if it is filed “seven days or more before the date 

of trial.” Sosa v. Cent. Power & Light, 909 S.W.2d 893, 895 (Tex. 1995) (citing Tex. 

R. Civ. P. 63 cmt.). “[T]he last day counted from the date of the filing may be the 

date of the hearing.” Id. To calculate the “seven days,” we do not count the day on 

which the pleading is filed but do count the seventh day after which it was filed. Id. 

Because January 2, 2017, was a holiday, the submission date fell to the next 

day, January 3, 2017. See Tex. R. Civ. P. 4; Miller Brewing Co. v. Villarreal, 829 

S.W.2d 770, 771 (Tex. 1992). And not counting December 27, 2016, the seventh 

day after the amended counterclaim was filed was January 3, 2017. See Tex. R. Civ. 

P. 4; Sosa, 909 S.W.2d at 895. Accordingly, the amended counterclaim was timely 

filed and the trial court erred in refusing to consider it. Issue two is sustained.

In their first issue, the Davis Parties contend the Green Parties were not 

entitled to summary judgment on the Davis Parties’ cause of action for violation of 

the TDCA because it was not included in the no-evidence motion for summary 

judgment. Generally, it is reversible error for a trial court to grant summary judgment 
7

on a claim not addressed in the summary-judgment motion. Bridgestone Lakes Cmty. 

Improvement Ass’n, Inc. v. Bridgestone Lakes Dev. Co., Inc., 489 S.W.3d 118, 123 

(Tex. App.—Houston [14th Dist.] 2016, pet. denied); see also Yeske v. Piazza Del 

Arte, Inc., 513 S.W.3d 652, 673 (Tex. App.—Houston [14th Dist.] 2016, no pet.). 

Although there are limited exceptions to the general rule,

7

the Green Parties 

acknowledge in their brief that this claim was a new cause of action. Accordingly, 

the Davis Parties’ first issue is sustained as to that claim. 

THE MOTION FOR NEW TRIAL

We next consider the second issue raised by the Davis Parties, whether the 

trial court erred by failing to grant their motion for new trial. We review the denial 

of a motion for new trial for an abuse of discretion. See In re R.R., 209 S.W.3d 112, 

114 (Tex. 2006) (per curiam); Houston Laureate Associates, Ltd. v. Russell, 504 

S.W.3d 550, 559 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

The Davis Parties argue the final judgment in the original cause number 

constituted “new evidence” which could not be presented at the time the trial court 

considered the no-evidence motion for summary judgment, as it was not in existence 

when the Davis Parties had to file their response. The Davis Parties contend the final 

judgment was conclusive as to one of the grounds of default on the promissory note 

alleged by the Green Parties—the condition of the airport property. 

To obtain a new trial based on newly discovered evidence, a party must show 

the trial court that (1) the evidence has come to light since trial; (2) it is not due to 

lack of diligence that it was not produced sooner; (3) the new evidence is not 

cumulative; and (4) the new evidence is so material that it would probably produce 

 

7

See G & H Towing Co. v. Magee, 347 S.W.3d 293, 297–98 (Tex. 2011) (per curiam) 

(citing Tex. R. App. P. 44.1(a)). 
8

a different result if a new trial were granted. Waffle House, Inc. v. Williams, 313 

S.W.3d 796, 813 (Tex. 2010). We review the trial court’s denial of a motion for new 

trial for abuse of discretion. Id. 

The Davis Parties do not identify that portion of the judgment that is 

purportedly conclusive as to the condition of the airport property. The Green Parties 

contend the judgment makes no findings of fact regarding the condition of the airport 

property and the jury was not asked, and did not make, any finding regarding the 

condition of the airport property. In their reply brief, the Davis Parties make no 

challenge to these contentions. Our review of the final judgment attached to the 

motion for new trial supports the Green Parties’ contentions and does not reveal the 

judgment makes any conclusions about the condition of the airport property. 

Assuming the judgment could constitute “newly discovered evidence,” the Davis 

Parties have not shown it does so. Because the underlying premise of the Davis 

Parties’ issue that the trial court erred in denying its motion for new trial is not 

supported by the record, we cannot conclude the trial court abused its discretion. 

Issue two is overruled. 

THE NO-EVIDENCE SUMMARY JUDGMENT

We now turn to the Davis Parties’ first issue asserting the trial court erred in 

granting the no-evidence summary judgment. Initially, we reject the Green Parties’ 

argument that the trial court properly granted summary judgment because the Davis 

Parties failed to timely file a response. See Tex. R. Civ. P. 166a(c). Regardless of 

the timeliness of the Davis Parties’ response, the trial court’s summary-judgment 

order recites the trial court considered the Davis Parties’ response. Accordingly, we 

also consider the response in our review on appeal. See Pipkin v. Kroger Tex., L.P., 

383 S.W.3d 655, 663 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (noting 
9

permission to file a late response may be reflected in a recital in the summary 

judgment). 

Standard of Review

We review de novo a trial court’s grant of summary judgment. See Mann 

Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). 

In reviewing either a no-evidence or a traditional motion for summary judgment, 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. Cura-Cruz v. 

CenterPoint Energy Houston Elec., LLC, 522 S.W.3d 565, 575 (Tex. App.—

Houston [14th Dist.] 2017, pet. denied). In a no-evidence motion, 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. Cura-Cruz, 522 S.W.3d at 575. 

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). 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. Id.

The Davis Parties contend they produced evidence supporting the challenged 

elements as to all their causes of action: (1) breach of contract; (2) fraud; (3) tortious 

interference with a contract and prospective business relations and business 
10

disparagement; (5) violation of the automatic stay; (6) conspiracy; (7) wrongful 

acceleration; and (8) economic coercion and duress. 

Breach of Contract and Wrongful Acceleration 

The Davis Parties’ counterclaims asserted wrongful acceleration and 

inducement of breach of contract. Specifically, the Davis Parties alleged the Green 

Parties induced SLFF to breach the deed of trust and promissory note, causing SLFF 

to accelerate the note without legal cause or justification. 

We first note that in the section of their brief addressing wrongful 

acceleration, the Davis Parties only refer this court to the evidence discussed in their 

argument regarding breach of contract. Accordingly, the Davis Parties have not 

differentiated their claim for wrongful acceleration from their cause of action for 

breach of contract. Accordingly, we do not address it as such. See Tex. R. App. P. 

38.1(i).8 

As to breach of contract, in their no-evidence motion the Green Parties 

asserted the Davis Parties had no evidence of any of the elements, which are: (1) the 

existence of a valid contract, (2) performance or tendered performance by the 

plaintiff, (3) breach of the contract by the defendant, and (4) damages sustained by 

the plaintiff as a result of the breach. See Mays v. Pierce, 203 S.W.3d 564, 575 (Tex. 

App.—Houston [14th Dist.] 2006, pet. denied). In their brief on appeal, the Davis 

Parties contend they produced evidence of breach of contract in Suarez’s second 

corrected declaration. The Davis Parties rely upon Suarez’s following statement:

 

8

 We note that wrongful acceleration of a real estate note, as alleged here, violates the Texas 

Debt Collection Practices Act as a matter of law. Rey v. Acosta, 860 S.W.2d 654, 659 (Tex. App.—

El Paso 1993, no writ) (citing Dixon v. Brooks, 604 S.W.2d 330, 334 (Tex.Civ.App.—Houston 

[14th Dist.] 1980, writ ref’d n.r.e.)). We have already determined the trial court erred in granting 

summary judgment on that claim.
11

14. From January through August, 2007, the Texas General 

Partnership made all monthly payments due under the original

Promissory Note to Sky Lakes and the individual Defendants that

operated it. Sky Lakes accepted all of the Texas General Partnership’s

monthly payments and cashed the Texas General Partnership’s checks.

The Davis Parties further refer to Exhibit 6 to Suarez’s declaration, a demand letter 

for immediate payment of the unpaid balance on the promissory note, with interest 

and attorney’s fees. Regardless of whether the actions of SLFF can be imputed to 

the Green Parties, this is evidence that SLFF accelerated the note but is not evidence 

they did so without legal justification. Because the Davis Parties have not 

demonstrated on appeal that they presented to the trial court more than a scintilla of 

evidence of the third element of breach of contract, they did not meet their burden 

to raise a genuine issue of material fact as to each element. See Cura-Cruz, 522 

S.W.3d at 575. Accordingly, the trial court did not err in granting summary judgment 

on that claim.

Fraud

The Davis Parties counterclaimed for fraud alleging the claims for attorney’s 

fees, maintenance fees, trustee’s fees, and costs asserted by SLFF were made at the 

direction and control of the Green Parties and were fraudulent. To prevail on a fraud 

claim, a plaintiff must show: (1) the defendant made a material representation that 

was false; (2) the defendant knew the representation was false or made it recklessly 

as a positive assertion without any knowledge of its truth; (3) the defendant intended 

to induce the plaintiff to act upon the representation; and (4) the plaintiff actually 

and justifiably relied upon the representation and suffered injury as a result. 

JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 

2018). In their motion, the Green Parties asserted the Davis Parties had no evidence 

of any of these elements. On appeal, the Davis Parties contend they presented to the 

trial court more than a scintilla of evidence as to each element of their claim. 
12

In their response, the Davis Parties referred the trial court to paragraphs 23, 

24, 26 and 27 of Suarez’s declaration. In their brief, the Davis Parties also refer this 

court to paragraph 25 of Suarez’s declaration, Exhibit 6 to that declaration, and 

paragraphs 5 and 6 of the declaration of Joe Alfred Izen, Jr., counsel for the Davis 

Parties, which was attached to the response to the no-evidence motion for summary 

judgment. Because all the evidence referred to in their brief was attached to the 

response, we consider it. 

The relevant portions of Suarez’s declaration provide: 

23. Sky Lakes Foundation and the individual Defendants in this 

case claimed they had expended $41,000.00 in attorney’s fees in their 

illegal efforts to accelerate the Texas General Partnership’s original 

promissory note and to wrongfully foreclose on the 55 acre airport 

property. Sky Lakes Foundation and the individual Defendants added 

this $41,000.00 onto the alleged indebtedness which the Texas General 

Partnership would have to pay off in order to avoid a foreclosure sale. 

Additionally, Sky Lakes Addition Section II added over $23,417.79 in 

alleged back maintenance fees which the Texas General Partnership 

had never paid since 1993 and did not owe to the amount due. Sky 

Lakes Foundation and the individual Defendants also added a trustee’s 

fee in excess of $1,000.00 to the amount allegedly owed which would 

have to be paid off in order to prevent a foreclosure sale of the property 

even though no trustee’s sale was ever carried out. All told, Sky Lakes 

Foundation and the individual Defendants in this case demanded almost 

$300,000.00 to pay off the original $285,000.00 indebtedness due 

under the original purchase money note. 

24. Texas General Partnership finally found a high risk private 

lender willing to loan $300,000.00 on the 55 acre airport property. In 

order to refinance the property and pay and satisfy Sky Lakes 

Foundation and the individual Defendants in this case extortionate 

demands. The Texas General Partnership was required, by the lender, 

to transfer its title to a new limited liability partnership entity. The new 

entity, Richard D. Davis Limited Liability Partnership, a Nevada 

Limited Liability Partnership, after receiving transfer of title from the 

Texas General Partnership, as required by the high risk lender, signed 
13

a new note in the amount of $275,000.00 which called for monthly 

payments of $4,460.00 per month over three years at 14.25% per annum 

interest. Plaintiff Suarez was required to personally guarantee the 

payments under this new note with the high risk lender.

25. As a result of the refinancing of the property in question 

forced by the illegal actions of Sky Lakes Foundation and the individual 

Defendants in this case which directed and controlled Sky Lakes 

Foundation, the Texas General Partnership lost the favorable terms of 

financing which called for payment of $285,000.00 with monthly 

payments of $1,530.00 over 30 years at 5% interest. From the date the 

property was refinanced with JLE, the high risk lender, through the date 

JLE, Inc. was paid off and another lender assumed the purchase money 

indebtedness, Plaintiff, Richard D. Davis Limited Liability Partnership, 

a Nevada Limited Liability Partnership, paid over $480,000.00 in 

additional interest it would not have had to pay but for the illegal 

wrongful acceleration and threats of wrongful foreclosure carried out 

or made by the Sky Lakes Foundation and the individual Defendants 

operating it. A true and correct copy of the “refinanced promissory 

note” which provided the funds to pay off the individual Defendants 

and Sky Lakes Foundation’s extortion and illegal demands is attached 

hereto, marked Plaintiffs’ Exhibit 6, and is incorporated by reference.

26. I recently attended the trial in Cause No. 08-12-19600 in 

which I was personally sued by the individual Defendants in this case 

in which I along with Richard D. Davis Limited Liability Partnership, 

a Texas General Partnership, and Richard D. Davis Limited Liability 

Partnership, a Nevada Limited Liability Partnership, were sued by the 

individual Defendants in this case. During the trial testimony, I heard 

Defendants’ attorney, Kyle Sears, the Defendants’ previous attorney 

testify that Defendants in this case had incurred a $250,000.00 legal bill 

with his office. Attorney Sears also testified that the individual

Defendants in this case had “paid the bill for their legal services in full.”

27. During written discovery in Cause No. 08-12-19600, the Sky 

Lakes Foundation provided bank ledger sheets indicating that attorney 

Sears had been paid at least $5,304.20 by Sky Lakes Foundation. Sky 

Lakes Foundation’s bill for attorney Sears’ unsuccessful and illegal 

efforts to foreclose on the 55 acre airport property was only $41,000.00 

according to Sears’ billings. Attorney Sears testified that the individual 

Defendants in this case had “paid their attorney’s fees in full.” The bank 

ledger records produced by the Defendant Sky Lakes in discovery in 
14

Cause No. 07-08-18999 coupled with attorney Sears testimony prove 

that the individual Defendants in this case used the monies from Sky

Lakes Foundation to pay their own personal attorney’s fees which they 

incurred in Cause No. 08-12-19600 and in this case. Attorney Sears’

testimony and Sky Lakes Foundation’s bank ledger records establish 

that all of the individual Defendants in this case accepted the benefits 

of the wrongful acceleration and used the funds from the wrongful 

acceleration which derived from the refinancing of the Texas General 

Partnership’s property with JLB, Inc. to pay their own personal legal 

fees. A true and correct copy of the Sky Lakes Foundation’s bank ledger 

sheets is attached to this Declaration as Plaintiffs’ Exhibit 7.

Izen’s declaration states: 

5. I received my licence [sic] to practice law from the Supreme

Court of Texas on June 10, 1977, and have practiced law continually

since that date in Harris County, Texas. I am familiar with the 

reasonable and customary charges of attorneys for same and similar 

legal services as those attorney Kyle Sears claimed he performed.

6. While attempting to foreclose on the 55 acre airport property 

owned by Richard D. Davis Limited Liability Partnership, a Nevada 

Limited Liability Partnership, Sears’ charge of $41,000.00 or more for 

those services was grossly excessive. A reasonable charge for the legal 

services, if they were necessary, which they were not, would be 

$7,000.00. 

In their brief, the Davis Parties assert the above portions of Izen’s declaration 

are some evidence the Green Parties made a representation that was false and knew 

the representation was false or made it recklessly as a positive assertion without any 

knowledge of its truth. The Davis Parties contend Izen’s declaration is evidence that 

the Green Parties falsely represented that SLFF’s attorney, Kyle Sears, who also 

represented the individual defendants, performed $41,000 in legal services. 

Assuming, without deciding, the actions of SLFF could be imputed to the Green 

Parties individually, Izen’s declaration is, at most, some evidence the fees charged 

by Sears were not reasonable and necessary, but it is not evidence that Sears did not 

charge SLFF $41,000 for his services. In fact, Suarez’s declaration states that SLF 
15

was billed $41,000 by Sears and that Sears testified the Green Parties had “paid their 

attorney’s fees in full.” 

The Davis Parties also allude to “claims for trustee’s fees for a trustee’s sale 

that was never carried out and other false and illegal charges SLFF imposed on the 

Appellants.” The Davis Parties’ then complain more specifically of representations 

made by Trey Duhon and Sears regarding defaults. 

As to the latter, no such complaint was made in response to the no-evidence 

motion. The law is well-settled that we may not affirm or reverse a summary 

judgment on a ground not presented to the trial court. Stiles v. Resolution Trust 

Corp., 867 S.W.2d 24, 26 (Tex. 1993); Travis v. City of Mesquite, 830 S.W.2d 94, 

99–100 (Tex. 1992); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 

677 (Tex. 1979). 

Regarding the former, there are no references to the record, citations to 

authority, or argument accompanying this statement. It is not our duty to review the 

record, research the law, and then fashion a legal argument when a party has failed 

to do so. Canton–Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931–32 (Tex. 

App.—Houston [14th Dist.] 2008, no pet.). 

Briefing waiver occurs when a party fails to make proper citations to authority 

or to the record, or to provide any substantive legal analysis. See Tex. R. App. P. 

38.1(i); Canton–Carter, 271 S.W.3d at 931; Sterling v. Alexander, 99 S.W.3d 793, 

798–99 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Even though the courts 

are to interpret briefing requirements reasonably and liberally, parties asserting error 

on appeal still must put forth some specific argument and analysis citing the record 

and authorities in support of their argument. San Saba Energy, L.P. v. Crawford, 171 
16

S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Accordingly, we 

do not address this contention. 

For these reasons, we conclude the Davis Parties have failed to demonstrate 

on appeal that they presented to the trial court more than a scintilla of evidence of 

the first element of fraud. See Cura-Cruz, 522 S.W.3d at 575. Because the Davis 

Parties did not meet their burden to raise a genuine issue of material fact as to each 

element, the trial court did not err in granting summary judgment as to their fraud 

claim.

Tortious Interference with a Contract; 

Interference with Prospective Business Relations; and 

Business Disparagement

In their response to the no-evidence motion for summary judgment, the Davis 

Parties referred to paragraph 28 of Suarez’s declaration as evidence of their claims 

for tortious interference with a contract and prospective business relations and 

business disparagement. Accordingly, we jointly consider these claims. 

In her declaration, Suarez stated the following: 

28. Starting in 2008, the Nevada Limited Liability Partnership 

had a tenant on the 55 acre airport property, Jump Out Express, LLC, 

and was conducting parachute and sky diving operations. Jump Out 

Express, was paying monthly payments to the Texas General 

Partnership under a lease of the 55 acre airport property of $4,250.00 

per month. The individual Defendants in this case sued Jump Out 

Express, LLC claiming that parachute / sky diving operations violated 

the deed restrictions of Sky Lakes Addition Section I and that such deed 

restrictions were binding on the owner of the 55 acre airport property 

(Nevada Limited Liability Partnership). The individual Defendants in 

this case obtained a temporary injunction which partially restricted the 

parachute / sky diving operations carried out by Nevada Limited 

Liability Partnership’s tenant on the 55 acre airport property. The 

temporary injunction and restrictions have never been lifted although 
17

the entry of Final Judgment on the jury verdict is imminent in Cause 

No. 08-12-19600. The verdict of the jury returned in Cause No. 08-12-

19600 on August 5, 2016 established that the individual Defendants’ 

temporary injunction unlawfully limited the Nevada Limited Liability 

Partnership’s and its tenant’s rights to conduct parachute and sky diving 

operations on the 55 acre airport property that Nevada Limited Liability 

Partnership owned. Due to the individual Defendants’ threats against 

Nevada Limited Liability Partnership’s tenant, Jump Out Express, 

Jump Out Express, [sic] did not renew on its lease for 2011 and moved 

its operations to an airport in Eagle Lake, Texas. As the result of the 

loss of Jump Out Express, as a tenant and the conduct of the individual 

Defendants in this case including threats that sky diving violated the 

deed restrictions, the Nevada Limited Liability Partnership was unable 

to release the property for sky diving operations after Jump Out Express 

departed. The Nevada Limited Liability Partnership lost $4,250.00 a 

month from 2011 through the date of this Declaration Prior to Jump Out 

Express’s departure, the Nevada Limited Liability Partnership had 

collected $81,540.00 in lease payment from Jump Out Express. The

Nevada Limited Liability Partnership would have collected at least 

$306,000.00 in rent if Jump Out Express had renewed its lease on the 

55 acre airport property. The individual Defendants’ threats and their 

conduct which included disparagement of Jump Out Express’ business 

character, a charge that Jump Out Express had bribed the local Better 

Business Bureau by Defendant, Paul Kates, and other actions deterred 

Jump Out from renewing its lease.

The only basis of the Davis Parties’ claims for tortious interference with a 

contract9

and tortious interference with prospective business relations10 described in 

 

9

 The elements of tortious interference with a contract are: (1) the existence of a contract 

subject to interference; (2) the occurrence of an act of interference that was willful and intentional; 

(3) the act was a proximate cause of the plaintiff’s damage; and (4) actual damage or loss occurred. 

Powell Indus., Inc. v. Allen, 985 S.W.2d 455, 456 (Tex. 1998); WTG Gas Processing, L.P. v. 

ConocoPhillips Co., 309 S.W.3d 635, 652 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).

10 To prevail on a claim for tortious interference with prospective business relations, the 

plaintiff must establish (1) there was a reasonable probability that the plaintiff would have entered 

into a business relationship with a third party; (2) the defendant either acted with a conscious desire 

to prevent the relationship from occurring or knew the interference was certain or substantially 

certain to occur as a result of the conduct; (3) the defendant’s conduct was independently tortious 

or unlawful; (4) the interference proximately caused the plaintiff injury; and (5) the plaintiff 

suffered actual damage or loss as a result. Coinmach Corp. v. Aspenwood Apartment Corp., 417 
18

the above portions of Suarez’s declaration is the suit brought by the Green Parties 

against Jump Out Express asserting deed restrictions prohibiting sky-diving 

activities on the property. The Green Parties argue their suit against Jump Out 

Express was not actionable interference because they had a right to file such a suit. 

In her declaration, Suarez states the Green Parties’ temporary injunction 

“unlawfully limited” sky-diving operations. However, she sets forth no underlying 

facts that the temporary injunction was “unlawful.” A conclusory statement is one 

that expresses a factual inference without providing underlying facts in support of 

the conclusion. See, e.g., Arkoma Basin Expl. Co. v. FMF Assocs. 1990-A, Ltd., 249 

S.W.3d 380, 389 n.32 (Tex. 2008); Dolcefino v. Randolph, 19 S.W.3d 906, 930 & 

n.21 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (holding affidavit’s 

statement that “this was false and defamatory and has injured me in my profession”

was conclusory). Such conclusions are not proper summary judgment evidence. 

See Padilla v. Metro. Transit Auth. of Harris Cty., 497 S.W.3d 78, 86 (Tex. App.—

Houston [14th Dist.] 2016, no pet.). Accordingly, we conclude the Davis Parties 

failed to produce competent summary judgment evidence in support of their claims 

of tortious interference.

To recover for business disparagement, a plaintiff must first establish the 

defendant published false and disparaging information about it. Forbes Inc. v. 

Granada Biosciences, Inc., 124 S.W.3d 167, 170 (Tex. 2003) (emphasis added); see 

also In re Lipsky, 460 S.W.3d 579, 592 (Tex. 2015).11 The Davis Parties rely upon 

Suarez’s statement that Jump Out Express’ business character was disparaged by a

 

S.W.3d 909, 923 (Tex. 2013).

11 To prevail on a business disparagement claim, a plaintiff must establish (1) the defendant 

published false and disparaging information about it, (2) with malice, (3) without privilege, (4) 

resulting in special damages to the plaintiff.” Forbes, 124 S.W.3d at 170.
19

charge from Paul Kates that Jump Out Express had bribed the local Better Business 

Bureau to satisfy this initial element of a claim for business disparagement. 

However, the Davis Parties cite no authority, and we are aware of none, allowing 

them to bring a claim for a disparaging remark about Jump Out Express. See Lipsky, 

460 S.W.3d at 592 (recognizing business entities can prosecute actions to protect 

their reputations in their own names); Waste Mgmt. of Texas, Inc. v. Texas Disposal 

Sys. Landfill, Inc., 434 S.W.3d 142, 147 (Tex. 2014) (recognizing that a business 

owner may sue for injuries to its reputation). The Davis Parties did not refer the trial 

court to any evidence the Green Parties published false and disparaging information 

about Davis Nevada or Davis Texas. Accordingly, the Davis Parties’ failed to meet 

their burden to raise a genuine issue of material fact as to that element. See CuraCruz, 522 S.W.3d at 575. Because the Davis Parties did not meet their burden, the 

trial court did not err in granting summary judgment on their claim for business 

disparagement.

Violation of Automatic Stay

The Davis Parties’ asserted the Green parties violated the automatic stay of 

section 362 of the Bankruptcy because they failed to wait ten days after dismissal of 

the bankruptcy proceeding before proceeding to notice the foreclosure sale. See 11 

U.S.C. § 362. The Green Parties’ no-evidence motion for summary judgment 

asserted this claim contained “the element that the defendant must have taken some 

action against Plaintiffs’ property. There is no evidence that any defendant took any 

prohibited action against Plaintiffs’ property.” In their response to the motion, the 

Davis Parties asserted the Green Parties’ claim was false. In support, the Davis 

Parties referenced the following from Suarez’s declaration: 

19. At the time that Sky Lakes Foundation and the individual

Defendants in this case who operated it noticed the 55 acre airport 

property for foreclosure sale, August 14, 2007, only four days had 
20

passed since the Texas General Partnership’s Bankruptcy had been 

dismissed. Sky Lakes Foundation and the individual Defendants did not 

wait ten days after the August 10, 2007 dismissa1 to post the Texas 

General Partnership’s 55 acre airport property in question for 

foreclosure sale.

In their opening brief on appeal, the Davis Parties claim that Sky Lakes 

Foundation was required to wait ten days after the bankruptcy proceeding was 

dismissed to notice the foreclosure sale. As authority the Davis Parties cite section 

362 of the Bankruptcy Code and In re Derringer, 375 B.R. 903 (B.A.P. 10th Cir. 

2007). In their reply brief, the Davis Parties argue the Green Parties violated section 

363 of the Bankruptcy Code and Rule 4001(a)(3) of the Federal Rules of Bankruptcy 

Procedure. See 11 U.S.C.A. § 363; and Fed. R. Bankr. P. 4001(a)(3).

The Rules of Appellate Procedure do not allow an appellant to include in a 

reply brief a new issue not raised by its original brief. See Tex. R. App. P. 38.3. 

Moreover, as noted above, we may not affirm or reverse a summary judgment on a 

ground not presented to the trial court. Stiles, 867 S.W.2d at 26; Travis, 830 S.W.2d 

at 99–100; Clear Creek Basin Auth., 589 S.W.2d at 677. Accordingly, our 

consideration of this issue is limited to the Davis Parties’ response to the no-evidence 

motion, as argued in their opening brief, contending the Green Parties violated the 

automatic stay by noticing the foreclosure sale before ten days had elapsed from the 

date the bankruptcy proceeding was dismissed. 

Under section 362(c)(2) of the Bankruptcy Code, the automatic stay 

terminates upon the earlier of the time the case is closed, the time the case is 

dismissed, or the time a discharge is granted or denied. Suarez’s declaration states 

the dismissal occurred on August 10, 2007, and the sale was noticed on August 14, 

2007. There is no reference to any evidence that the effective date of the order of 

dismissal was delayed in this case, as happened in Derringer, 375 B.R. at 905–06. 
21

Thus, the evidence reflects notice was given after the automatic stay terminated on 

August 10, 2017. Because the Davis Parties’ failed to present more than a scintilla 

of evidence that the automatic stay was violated, they did not meet their burden to 

raise a genuine issue of material fact as to that element. See Cura-Cruz, 522 S.W.3d 

at 575. We therefore conclude the trial court properly granted summary judgment on 

the Davis Parties’ claim for violation of the automatic stay. 

Economic Coercion and Duress

In their no-evidence motion for summary judgment, the Green Parties asserted 

only that the claim “is not a cause of action. It is an affirmative defense. See TRCP 

94.” As recognized by this court in Duradril, L.L.C. v. Dynomax Drilling Tools, Inc., 

516 S.W.3d 147, 169 (Tex. App.—Houston [14th Dist.] 2017, no pet.), the elements 

of economic duress or business coercion are: 

(1) the defendant threatened to do some act that it had no legal right to 

do; (2) the threat was of such a character as to destroy the plaintiff’s 

free agency; (3) the threat overcame the plaintiff’s free will and caused 

it to do what it otherwise would not have done and that it was not legally 

bound to do; (4) the restraint was imminent; and (5) the plaintiff had no 

means of protection. See In re Frank Motor Co., 361 S.W.3d 628, 632 

(Tex. 2012) (citing Flameout Design & Fabrication, Inc. v. Pennzoil 

Caspian Corp., 994 S.W.2d 830, 837 (Tex. App.–Houston [1st Dist.] 

1999, no pet.)). 

 The Green Parties motion did not state any of these elements or claim that the 

Davis Parties had no evidence as to any of them. A no-evidence motion for summary 

judgment “must state the elements as to which there is no evidence.” Tex. R. Civ. P. 

166a(i). Further, a no-evidence motion “must be specific in challenging the 

evidentiary support for an element of a claim” and “conclusory motions or general 

no-evidence challenges to an opponent’s case” are insufficient. Tex. R. Civ. P. 

166a(i) cmt. See Wyly v. Integrity Ins. Sols., 502 S.W.3d 901, 907 (Tex. App.—
22

Houston [14th Dist.] 2016, no pet.). Because the Green Parties’ motion did not assert 

there was no evidence of any of the elements of the Davis Parties’ causes of action 

for economic duress or coercion, they were not entitled to summary judgment on 

those claims. 

The Green Parties argue on appeal that even if economic duress or coercion 

are affirmative claims for relief, the trial court’s summary judgment was proper 

because the claims are derivative of the wrongful acceleration claim. As noted 

above, we may not affirm or reverse a summary judgment on a ground not presented 

to the trial court. Stiles, 867 S.W.2d at 26; Travis, 830 S.W.2d at 99–100; Clear 

Creek Basin Auth., 589 S.W.2d at 677. Accordingly, the Davis Parties’ first issue is 

sustained as to that claim. 

Conspiracy

Civil conspiracy, generally defined as a combination of two or more persons 

to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful 

means, is a “derivative” tort, meaning a defendant’s liability for conspiracy 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). As a result, we do not analyze the trial court’s judgment regarding the Davis 

Parties’ cause of action for conspiracy separately from its judgment as to the other 

causes of action. See id. If the trial court did not abuse its discretion in granting 

summary judgment on all claims which are alleged to have arisen from the 

conspiracy, then, a priori, it did not abuse its discretion in granting summary 

judgment on the claim of conspiracy. Id. 
23

As relevant to this case, the Davis Parties’ counterclaim for conspiracy was 

based upon the underlying torts discussed above.12 Because we have determined the 

trial court erred in granting summary judgment on the Davis Parties’ claim for 

economic coercion and duress, we must also conclude the trial court abused its 

discretion in granting summary judgment on the Davis Parties’ claim of conspiracy. 

We therefore sustain the Davis Parties’ first issue as to that claim. 

CONCLUSION

The judgment of the trial court in favor of the Green Parties on the Davis 

Parties’ causes of action for (1) violation of the TDCA; (2) economic duress or 

coercion; and (3) conspiracy are reversed and those claims are remanded for further 

proceedings. As to the remainder of the Davis Parties’ claims, the judgment of the 

trial court is affirmed. 

 

 /s/ Margaret “Meg” Poissant 

 Justice 

Panel consists of Justices Wise, Hassan and Poissant. 

 

12 The other underlying torts remained in the original cause.