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In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-11-00668-CV

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KHAI NGOC TRAN AND HAI HOANG, Appellants

V.

COASTAL SEAFOOD & GROCERY, Appellee

________________________________________________________________________

On Appeal from the 60th District Court

Jefferson County, Texas

Trial Cause No. B-185,104

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MEMORANDUM OPINION

Appellants, Khai Ngoc Tran and Hai Hoang, appeal a summary judgment 

granted in favor of appellee, Coastal Seafood & Grocery.1 We reverse and remand.

Background

Tran and Hoang, Lenders, sold Coastal three lots, with improvements. In the 

transaction, Coastal signed a note and gave Lenders a deed of trust securing

 

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Coastal Seafood & Grocery is a partnership between Ted V. Nguyen and 

Go D. Phan. 
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payment.

2 Approximately two months later, Tran assigned his interest in Coastal’s 

note to a bank. Subsequently, the bank filed the assignment for record in the real 

property records of Jefferson County.

Seven years later, Coastal became aware of Tran’s assignment when it

learned that Tran’s bank had filed the assignment with the Jefferson County Clerk.

Approximately three months later, Coastal sued Lenders, alleging that Lenders

were liable to it under four theories, (1) breach of the “Sale Agreement,”3 (2) 

conspiracy, (3) fraud, and (4) unjust enrichment. 

Subsequently, Coastal filed a traditional motion for summary judgment, 

claiming there were “no material facts in dispute regarding the cloud which 

[Lenders] placed on the title to [Coastal’s] property.” See Tex. R. Civ. P. 166a(c). 

Less than seven days before the hearing, Lenders filed a response. The trial court 

entered a judgment resolving Coastal’s claims without specifying the grounds for 

its judgment. The judgment states the court, “[a]fter reading the pleadings and 

hearing arguments of counsel[,]” found Coastal’s summary judgment motion 

“MERITORIOUS[,]” and declared Coastal’s note to be paid in full. The trial court 

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Coastal’s note and the deed of trust are not in the summary judgment 

record. However, both are referenced by a warranty deed, executed by Tran at the 

time of the transaction, which is in the summary judgment record. 

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The “Sale Agreement” is not contained in the record, and it was not filed as 

an exhibit in support of Coastal’s motion for summary judgment.
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also awarded attorney’s fees to Coastal and ordered that “[a]ll relief not expressly 

granted is hereby denied.”

Waiver

As a preliminary matter, Coastal contends that Lenders waived their right to 

appellate review of issues one and three. According to Coastal, Lenders limited 

their right to appeal by filing a notice of appeal stating that Lenders wish to appeal 

“that portion of the judgment rendered against them in said case, specifically, the 

award[] of attorney[’]s fees in the sum of $12,000.00.” 

Because Coastal’s argument on waiver would, if valid, prevent us from 

reaching two of Lenders’ issues that assert the trial court erred in granting 

summary judgment on the merits of Coastal’s claims, we choose to address 

Coastal’s waiver argument first. 

Appellate jurisdiction over an appeal is invoked when a party files a notice 

of appeal. Tex. R. App. P. 25.1(b). Rule 25.1 does not limit issues that an appellate 

court is required to consider to items, if any, identified in the notice of appeal. See 

Tex. R. App. P. 25.1. However, an appellant’s right to raise all issues may be 

limited if the appellant asks for a partial reporter’s record. See Tex. R. App. P. 

34.6(c)(1). If an appellant asks for a partial reporter’s record, the appellant is 
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required to include in the request “a statement of the points or issues to be 

presented on appeal and will then be limited to those points or issues.” Id.

Coastal cites Melton v. Toomey, 350 S.W.3d 235, 237 (Tex. App.—San 

Antonio 2011, no pet.), as support for its argument that Lenders’ are not entitled to 

our review of issues one and three. Unlike the facts before us now, the appellant in 

Toomey requested a partial reporter’s record and filed a notice of appeal entitled 

“‘Petitioner’s Notice of Limited Appeal[,]’” which stated that the appellant wished 

to assert a right to a limited appeal related to two of the trial court’s specific 

rulings. Id. at 236-37. In Toomey, the Court held that although the issues appealed 

were stated in the notice of appeal and not in the request for the partial reporter’s 

record, as required by Rule 34.6(c)(1), the statement of the issues in the notice of 

appeal was sufficient to invoke the presumption of Rule 34.6(c)(4). Id. at 237. As a 

result, the appellate court limited the appellant in Toomey to the issues stated in the 

notice of appeal. Id.

In this case, Lenders did not request a partial reporter’s record. Additionally, 

at the summary judgment hearing, the court reporter was not asked to make a 

record. The parties do not contend that any of the proceedings were reported and 

thus, it is undisputed that no reporter’s record of the summary judgment hearing 

exists. In the absence of a request for a partial reporter’s record or a claim that a 
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reporter’s record of relevant proceedings was taken and could be transcribed, the 

notice of appeal vests jurisdiction over the entire case in the court of appeals and 

the parties’ briefs provided Coastal with notice of the issues being raised in the

appeal.

Additionally, one of the two issues that Coastal asserts we should not 

reach—issue one—argues that Coastal failed to file sufficient summary judgment 

evidence to prove that Coastal was entitled to receive a judgment in its favor. In 

Bennett v. Cochran, the Texas Supreme Court held that under Rule 34.6(c)(4), “an 

appellant need not file a complete reporter’s record to preserve legal or factual 

sufficiency points.” 96 S.W.3d 227, 228 (Tex. 2002) (per curiam). The Court held 

that the court of appeals erred when it held the appellant waived his legal and 

factual sufficiency issues by not filing a complete reporter’s record. Id. Therefore, 

Bennett provides additional support for our decision to reach the merits of Lenders’ 

first issue. 

We conclude that Lenders did not invoke the limitations on appeal that are 

provided by Rule 34.6(c)(1). See Tex. R. App. P. 34.6(c)(1). We hold that all of the

issues Lenders have raised can be reached in this appeal.
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Standard of Review

We review a trial court’s ruling to grant a traditional motion for summary 

judgment under a de novo standard. Valence Operating Co. v. Dorsett, 164 S.W.3d 

656, 661 (Tex. 2005). The party moving for a summary judgment has the burden to 

show, with competent summary judgment evidence, that no genuine issue of 

material fact exists and that it is entitled to summary judgment as a matter of law. 

See Tex. R. Civ. P. 166a(c); see also Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 

546, 548 (Tex. 1985). When a plaintiff moves for a traditional summary judgment, 

the plaintiff has the burden to conclusively prove all elements of its claims as a 

matter of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986). In 

resolving whether a party met its burden to prove it was entitled to a favorable 

ruling on its traditional summary judgment motion, we resolve every reasonable 

inference in favor of the non-movant and take all evidence favorable to the nonmovant as true. See Nixon, 690 S.W.2d at 548-49.

Issues

Lenders raise three issues in their appeal. Issue one asserts that Coastal 

failed to establish that no genuine issue of fact existed as related to Coastal’s 

claims. Issue two asserts that Coastal failed to present evidence to support the trial 

court’s award of attorney’s fees. In issue three, Lenders argue the trial court erred 
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in granting summary judgment for several additional reasons, including that the 

trial court conducted the summary judgment hearing without requiring Coastal to 

provide the number of days’ notice required by the Texas Rules of Civil Procedure. 

See Tex. R. Civ. P. 166a(c) (requiring that the motion for summary judgment and 

supporting affidavits be filed and served “at least twenty-one days before the time 

specified for hearing”). 

Analysis

First, we will address Lenders’ complaint that Coastal failed to establish that 

there were no genuine issues of material fact. Although the trial court’s order did 

not address Coastal’s four theories of liability separately, we will. 

Coastal sued Lenders for breaching a contract that Coastal’s motion 

references as the “Sale Agreement.” To receive a favorable ruling on its traditional 

motion for summary judgment, Coastal was required to “prove all essential 

elements of [its] claim.” See Jones, 710 S.W.2d at 60. The essential elements of a 

breach of contract claim include: “(1) the existence of a valid contract; (2) 

performance or tendered performance by the plaintiff; (3) breach of the contract by 

the defendant; (4) damages sustained as a result of the breach.” Winchek v. Am. 

Express Travel Related Servs. Co., 232 S.W.3d 197, 202 (Tex. App.—Houston [1st 

Dist.] 2007, no pet.). 
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The summary judgment evidence before the trial court did not include a 

copy of the sales agreement at issue. Thus, the summary judgment record does not 

establish, as a matter of law, that the “Sale Agreement” prohibited Tran from 

assigning his interest in Coastal’s note to a third party. Moreover, the evidence 

before the trial court failed to establish, as a matter of law, that Tran’s assignment 

created a lien on Coastal’s property or that Coastal was damaged by Tran’s 

assignment. We conclude that Coastal was not entitled to a summary judgment on 

its breach of contract claim.

Coastal also sued Lenders for conspiracy, alleging that Lenders conspired 

with the bank to obtain a loan on collateral that they no longer owned. The 

elements of an actionable conspiracy include: (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). Here, because there is no proof that 

the “Sale Agreement” prohibited an assignment of the note to a third party, the 

summary judgment evidence fails to conclusively establish that Tran’s assignment 

of his interest to a bank violated any of Coastal’s rights. Additionally, no affidavit 

or other summary judgment evidence established that Coastal was damaged by a 

conspiracy, nor is there any evidence establishing the amount of damages caused 
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by the alleged conspiracy. We conclude that Coastal was not entitled to a summary 

judgment on its conspiracy claim. 

Coastal’s third theory of liability, fraud, requires proof of: (1) a material 

representation; (2) that was false; (3) made by the speaker as a positive assertion, 

with knowledge that it was false or made recklessly without any knowledge of the 

truth; (4) made by the speaker with the intent that the other party act upon it; (5) 

the party acted in reliance on the representation; and (6) the party was injured by it. 

In re FirstMerit Bank, N.A., 52 S.W.3d 749, 758 (Tex. 2001). Here, the summary 

judgment evidence did not conclusively establish that either Tran or Hoang falsely 

represented that they would not assign the note to a third party. Additionally, the

summary judgment evidence did not show that Tran was not the record owner of 

the real property included in the transaction at issue. Finally, the summary 

judgment evidence failed to establish, as a matter of law, the amount of Coastal’s 

damages caused by Lenders’ alleged fraud. We conclude that Coastal was not 

entitled to a summary judgment on its fraud claim.

Coastal’s last theory, unjust enrichment, alleges a right to a recovery of 

$137,000. There are circumstances under which “overpayments under a valid 

contract may give rise to a claim for restitution or unjust enrichment.” Sw. Elec. 

Power Co. v. Burlington N. R.R. Co., 966 S.W.2d 467, 469-70 (Tex. 1998) (citing 
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examples allowing restitution to be recovered). Assuming, without deciding, that 

Coastal has a claim for unjust enrichment, the summary judgment evidence failed

to establish that Coastal overpaid Lenders on its note; instead, the summary 

judgment evidence reflects that as of the date of the summary judgment hearing, 

Lenders had not received full payment on Coastal’s note. Nor does the summary 

judgment evidence establish as a matter of law that Coastal paid for real property 

to which it did not receive clear title. Absent evidence establishing that no material 

issues of fact existed, Coastal did not meet its summary judgment burden on its 

claim of unjust enrichment. 

We conclude that Coastal did not meet its burden to establish that no 

material issues exist on any of its theories of recovery. We sustain issue one. As 

Lenders’ remaining issues afford them no greater relief, we decline to reach issues

two and three. See Tex. R. App. P. 47.1. 

Coastal also filed a cross-point, claiming that Lenders’ appeal is frivolous 

and asking for sanctions. Because Lenders’ appeal has merit, we overrule Coastal’s 

cross-point. Because Coastal did not meet its burden of proof on its traditional 

motion for summary judgment, the trial court erred in granting judgment in 

Coastal’s favor. We reverse the trial court’s judgment, and we remand the case to 

the trial court for further proceedings consistent with this opinion.
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REVERSED AND REMANDED.

___________________________

 HOLLIS HORTON

 Justice

Submitted on December 27, 2012

Opinion Delivered February 28, 2013

Before McKeithen, C.J., Gaultney and Horton, JJ.