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

NO. 03-09-00367- CV

Craig Wheele r, Appellant

v. P ete r Sajovich; Nickolas Nowak ; Austin Advan tage, Inc. d/b/a RE/MAX Austin Advantage; and eCounty For eclosure s, Inc., Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 353 RD JUDICI AL DISTRICT NO. D-1 -GN-0 7-0 0153 5, H ONO RAB LE GISELA D. TRI ANA-DO Y AL, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Craig Wheeler appea ls a final summary jud gm ent on claims he asser ted ag ainst Peter Sajovic h , Nickolas Nowak, Austin Advantag e, I nc. d/b/a RE/MAX Austin Advantag e (“A ustin Advantag e”) , and eCounty For eclosure s, I nc. (“e C o u n t y ”) (collec tively , appellee s). I n two issu es o n ap peal, Wheeler arg ues that the district court err ed in g ranting summary judgme nt beca use he prese nted evidenc e raising a fac t i s s u e as to elements of brea ch-of -fiducia ry -duty and brea ch-of -contra ct claims he ha d asser ted ag ainst appellee s. We will affirm the judg ment.

BACK GR OUND The following fac ts are taken from the aff idavits, depositions, and other evidenc e in the summary -judg ment rec ord. Appellant Wheeler becam e interested in purcha sing proper ty in Austin for investment purposes. Appellee Sajovich is a rea l estate investor who i s a l i censedrea l estate broker

. Ap p el l ee Aus tin Advantag e is a rea l estate broker ag e company . Sajovich is

Austin Advantag e’s broker /owner. Appellee eCounty is an entity Sajovich formed to locate proper ty for purcha se at fore closure sales, and he continues to serve as its president and owner . The company offe rs a g roup of investors the opportuni ty to purcha se foreclosure proper ties at t he mont hly sales by having eCounty bid for the proper ties on their behalf

. Appellee Nowak, at rele vant times, worke d
at Austin Advantag e as a licensed rea l-estate salesper son, o p er at i n g under Sajovich’s broker ag e license. N owak wa s also the assistant vice- president of eCounty

. Wheeler signe d a broker ag e ag ree ment with Austin Advantag e (the “A d v an tag e Ag ree ment ”) wi th an eff ective date of J une 18, 2003 and a stated expiration date of the ear lier of either Dec ember 18, 2003 or the closing of the last proper ty transac tion t h at W h ee ler intended
to acquir e. The ag ree m en t was on a standard Texas Association of Realtors form entitled “B uy er/Te nant Represe ntation Ag ree ment–Residential.” The Advantag e Ag ree ment provided that it was betwee n Wheeler as the “Client” and Austin Advantag e as the “B roker ,” and it was signe d on behalf of Austin Advantag e by

Sajovich as “B roker

/Associate.” Under the Advanta g e Ag ree ment, Wheeler a g ree d:

C to “wor

k exclusively throug h Br oker in acquir ing proper ty in the marke t are a [central Texas and surrounding counties] and [ t o ] neg otiate the acquisition of prope rty

in the marke t are a only

throug h Br oker,” and

C to “inform other broker s, salesper sons, sellers and landlords with whom [he] may have contac t that Br oker exclusively repr esents [hi m] for the purpose of acquir ing proper

ty in the marke t are a and [t o] ref er all such persons to Br oker.”

2Austin Advantag e ag ree d:

C t o “use [i ts] best eff orts to assist [W heele r] in acquir ing proper ty in th e marke t are a,” a

nd

C to “assist [W heele r] in negotiating the ac quisiti on of proper ty in the marke t are a.”

The ag ree ment also contained a provision in which Wheeler specific ally acknowledg ed that Austin Advantag e:

may repr esent other prospec tive buy ers or tenants who may seek to acquir e proper ties t h at m ay be of interest to [W heele r]. [W heele r] ag ree s that Br oker may , durin g the term of this ag ree ment and afte r it ends, repr esent such o t h er prospec ts, show the ot her prosp ec t s the s ame properties that Br oker shows to [W heele r], and act as a rea l estate broker for such other p ro s p ects in neg otiating the acquisition of proper ties that [W heele r] may

seek to a cquire

. Also, on J une 7, 2003, Wheeler signe d an ag ree ment with eCounty and subsequently 1 signe d addendums on J uly 24, 2003 and Aug ust 30, 2004 (collec tively , the “eCounty Ag ree ment”). Under the eCounty Ag ree ment, if Wheeler wanted to bid in a monthly fore closure auction, he would submit to Nowak or Sajovich in advanc e a list of proper ties he had selec ted, his maxi mum bid price , and his calc ulation of a bro k er age co m mission he would owe under t he agr eeme nt if the property

was purcha sed. Wheeler then would deposit money equal to his maxi mum bid amounts plus broker ag e commissions into eCounty ’s client acc ount in exchang e for a promissory note from

This ag ree ment was e ntitled “Addendum to Exclusive Buy er Representa tion Ag ree ment 1 Be tween RE/MAX Austin Advantag e (“B roker ”) and Craig Wh ee l er (“Client”) .” Wheeler subsequentl y m ade a corr ection to one of the service options he had selec ted, which he signe d and date d “6/25.” 3eCounty in an amount equal to his deposit with an annual interest rate of 5.00% per annum. Nowak 2

or another investment specia list (a licensed rea ltor working for Austin Advantag e) would then attend the auction and bid on eac h proper ty up to the maxi mum bi d am o u n t s W h eeler had specifie d. I f the bid was succe ssful, the proper ty wa s purcha sed in eCounty ’s name using the money Wheeler had deposited in eCount y ’s acc ount. Wheeler would then purcha se the proper ty or proper

ties from eCounty , with Sajovich and Austin Advantag e acting as the broker and rec eiving a commission

on the sale. I f t h e b i d o r bids wer e unsucce ssful, Wheeler’ s money would be returne d to him by eCounty

. Howeve r, eventua lly , Wheeler testified, he would so m et i m es just leave his money in the eCounty acc ount beca use “it beca

me kind of cumber some . . . to wire the money back and forth”

ever y month. The eCounty Ag ree ment consisted of a form that provided a number of options from which Wheeler could choose reg arding the service s e Co u n ty would provide him. Among the choice s Wh eele r m ade, he opt ed not to allow eCount y to use hi s funds t o acquir e for him non-for eclosure proper ties that wer e not on his bid list. Wheeler also testified that he never g ave Nowak the ability to purcha se prope rty

for him without Wheeler’s instruc tions or permission before eac h auction. The eCounty Ag ree ment also disclosed that eCounty repr esente d multipl e clients at the auctions. The Ag ree ment further disclosed, in a sec tion tit led “Repr esenta tion and Conflict of I ntere st” that:

The eCounty Ag ree ment provided that “[i] ntere st on the note shall not beg in to acc umulate 2 until [W heele r] provides written confirma tion of [W heele r’s] int en tion to terminate the Earne st Money

contra ct executed a t the time [ Wheeler’ s] bi ds are acc epted.” 41. [W heel er ] h ere by acknow ledg es that [he has] been notified the Desig nated Br oker [defined as “P eter Sajovich, Br oker/Ow ner, RE/MAX Austin Advantag e”] is licensed by the Texas Real Estate Commission (TREC). 2. [W heele r] understands [Sajovich] repr esents eCounty For eclosure s, I nc. 3. [W heele r] u n d er s t an d s t h at [ S aj o v i ch ] i s a k ey o ff i cer of eCounty For eclosure s, I nc. 4. [ W h ee l er ] u n d er s t an d s [ S aj o v i ch ] h as fi n an ci al i n t erest in eCount y For eclosure s, I nc. 5. [ W heele r] understands [ S aj o v i ch ] m ay b en ef i t fi n an ci al l y fr o m t h i s transac tion in addition t o the broke rag e commissions alrea dy stated.

Be tween J une 2003 and m id-2006, eCounty bid on proper ties for Wheeler
at approximately 10 monthly fore closure auctions, and Wheeler ultimately purcha sed 4 of these proper

ties throug h eCounty

. Wheeler never purcha sed any proper ties throug h eCounty , Au s t i n Advantag e, S ajovich, or Nowak that wer e li sted on the M ultiple L isting S ervic e (ML S) o r that wer e not fore closure pr operties.

Meanw hile, the Advantag e Ag ree ment’s Dec ember 18, 2003 expiration date passed without Wheele r’s signing a written ag ree ment to r enew or extend it. Nowak testified that he sent Wheeler another broker ag e ag ree ment to sign, but Wheeler n ever returne d it. Although Wheeler acknow ledg ed that he did not sign another broker ag e ag ree ment, he insisted that he and the appellee s continued to “oper at[e] o n t h e u n d erstanding just like the orig inal broker -client rela tionship we orig inally signe d bac k i n 2 0 0 3 .” Wheeler insisted that Nowak understood that Wheeler and his

5brother wer e seeking to invest in non-for eclosure ML S proper ties, as well as fore closure proper ties, 3 and that Nowak would email them information re g arding ML S properties. Now ak ac knowledg ed that he continued to send ML S listi ng s to Wheeler, as wa s h i s p ra ct i ce with all the i nvestors wit h whom he wor

ked. The rea l-estate opp o rt u nity at issue here arose over the Four th of J uly holiday weekend in 2006. Wheeler testified that he was out of town on vacation in Ne w M ex i co that wee kend. At that time, Wheeler explained, he only had acc ess to email on his home computer, not throug h any mobile device

. On Saturday , J uly 1, 2006 , at 1 : 1 4 p .m., Nowak sent an email to Wheeler an d m o re t h an 20 other investors attaching the ML S listi ng s for 2 fourplexes located on South 1st Street in Austin (“the South 1st Street proper ties”). The email descr ibed the proper ties as “Superb location in centr al Austin

. . . [.] Rents should be $1000 per unit, $4000 monthly income[.] P ro perties will g o under contra ct this wee kend.” Sajovich testified that he had email ed t h e i n fo rmation about the proper ties “to the people at Austin Advantag e who specia liz e in findin g investors

. . . with the idea that they would qu i ck l y e- m ai l it to whoeve r they know that might be interested in—in purcha sing an investment proper ty to s ee i f—i f we could g et an immediate response .” S ajovi ch further testified that afte r he had someone drive by the proper tie s o n t h e afte rnoon of J uly 1, and afte r none of the individuals to whom the proper ty inform at ion had been emailed had responde d to indicate their interest, he decide d “to take the risk” and g et the proper ties

W heele r’s brother, Br ent Wheeler, lived in Austin. Wheeler indicated that he and his 3 brother had informally pooled their money and invested in proper ty toge ther. Br ent Wheeler is not a par ty to the lawsuit. 6under contra ct in eCounty ’s name using eCounty ’s corpor ate funds. Sometime that day or Sunday ,

J uly 2, Sajovich transmitted an offe r that included a $6,000 non-re fundable option fee to the seller’ s ag ent. Along with his offer he sent an undated letter stating “ [A] ttached is the f ull price off

er w e 4 spoke about. My client is obviously very interested in purcha sing these fourplexes as indicated by the $3,000.00 nonref

undable four day option fee [for eac h building].

. . . I have also attache d proof of funds for the down pay ment.” As proof of funds, he a ttached the first pag e of eCounty ’s Marc h 1, 2006 - Marc h 31, 2006 client-a ccount bank statement, which showed the acc ount balanc e and deposits from some customers—but no deposit from Wheeler. eCounty used its corpor ate funds to pay the opt ion fee s and the ear nest money for the proper ties. Sajovich testified that he did not 5 know whose money would be used to cl o s e t h e purcha se at the time he made the offe r. Sajovich testified t hat t he seller’s age nt verba lly i n fo rm ed him on Sunday , J uly 2, that eCounty ’s offer had been acc epted by the seller, so he set up an inspect i o n fo r W ednesday (Tuesda y was the J uly 4th holiday ) and rec eived a signe d acc eptanc e from the seller on Wednesday , J uly 5. Sajovich testified that “[s] ometime afte r we had it under contra ct, [I ] started to formulate ideas on how best—best to structure this investment opportunity .” Soon afte r that, he bega n the process of preparing a joi ntventure proposal, i n cl u d ing putting toge ther information about compar able proper ties, marke t conditions, and a c ash-f

low analy sis. Sajovich’s rec ollection was that he sent the offe r to the seller’ s ag ent on Saturday evening , 4 J uly 1 , and that the seller’ s ag ent told him verba lly on Sunday , J uly 2, that his offe r had been acc epted. The information repor ted to the ML S reflec ted a c ontrac t-pending date of J uly 3, 2006, and the c hecks f

or the option fee s and ea

rnest-mone y

pay ments are also dated July 3, 2006. The chec ks for these pay ments are d rawn on an eCounty bank acc ount with an 5 acc ount number that is differ ent from the acc ount number listed in the eCounty Ag ree ment for preauction deposits. 7Meanw hile, acc ording to Wheeler, beca use he was out of town without email acc ess, he did not see the J uly 1 email reg arding the South 1st Street proper ties until J uly 3 or 4, “at a place with not very g ood phone service .” Wheeler claimed that he called Nowak as soon as he could afte r that, “which would have been mid wee k

. . . to ask him more about those proper ties.” Nowak ag ree d that he and Wheeler first spoke about the proper ties on Wednesday , J u l y 5. Wheeler could not

reme mber a

ny specific details from that c onversa tion—he descr ibed this e x chang e as his “g ener al information g ather ing” about the proper ties and their potential value as renta l units or o t h er wi se. Wheeler testified that he had about three conver sations with Nowak about the proper ties befor e he visited Austin the following we ekend to look at the pr operties. 6

On Saturday , J uly 8, Wheeler drove by the proper ties on his own. After

war d, he met with Nowak and Sajovich at an Aus t i n re s t aurant to discuss the proper ties. Although Wheeler and Sajovich had previously spoken by phon e to discuss one of the fore closure proper ties that Wheeler purcha sed throug h eCounty , the pair had never met in person. Sajovich proposed to Wheeler a joint venture on the proper ty and g ave him t h e wr i t t en p roposal that Sajovich had prepa red. The proposal stated that “[b] oth b u i l d ings are under contra ct and are being offe red for sale as a joint venture at the orig inal purcha se price of $450,000 eac h.” Wheeler would be require d
to purcha se the buildings with $180,000 cash and two new loans totaling $720,000 to c lose befor e J uly 28, 2006. Wheeler would also be require d to provide a rec orded 60-month option to Sajovich

Sajovich testified t hat Nowak asked him on Thursday whether he would consi d er d o i n g 6 the joint venture with Wheeler. Sajovich thought the proposal would work well for Wheeler beca use Wheeler had a high income an d the proposal could have benef icial tax implications for him. Wheeler testified that no one told him before he ca me to Austin to see the proper ties that the onl y way he would be a

ble to purcha se them wa s throug h a joint venture w ith Sajovich. 8(or an entity controlled by him) for the sale of both build i n gs for $900,000 plus 50 perc ent of the

net profits derive d from conver ting the building to an 8-unit lux u ry condominium. I n exchang e, Sajovich would ag ree to obtain all nece ssary permits and construction loans an d wo uld manag e the construction and sale of the condomin i u m u n i t s. The proposal indicated that the anticipated sales price for eac h unit would avera g e $225,000 with construction and im proveme nt costs of not

more than $30,0 00 per unit “re sulting in a net profit to the investor of $258,000 or a 24% compounded return over a four y ear period for the initial $180,000 investment.” Wheeler testified 7 that he wa

nted t o think about Sajovich’s proposal and tha t Sajovich told him he nee ded to make a decision by the following Monday , J u l y 1 0 , t h e next business day

. Sajovich testified that he was heade d to California on Monday , and neede d to know whether Wheeler was g oing to participa te in the joint venture be fore he pre sented the oppor tunity to other investors. Wheeler test i fi ed that on the following Monday night, J uly 10, at about 6:00 or 7:00 p.m. Texas time, he contac ted Sajovich about the joint-ven t u re o ff er. Wheeler testified that he told Sajovich that he “wa s very interested in the p ro p erty , but very conce rned about the option contra ct that [he] had seen on Saturday , that that was unacc eptable

. . . .” Sajovich told him the deal was no longe r available to him beca use Sajovich had alre ady prese nted it to another investor. Acc ording to Sajovich, Wheeler sai d t h at he wanted Sajovich to sell him the proper ty at the orig inal listed price , and if he was unwilling to do that, Wheeler would file a complaint with the

None o f t he appellee s ever offe red the proper ties to Wheeler for the price for which the 7 prior owne r had listed them on the ML S. 9Texas Real Estate Commi ssion. Wheeler contac ted No wa k b y email on Tuesday afte r he talked 8

to Sajovich. Wheeler expressed surprise that the proper ties wer e not made available to him for purcha se at the orig inal list price

. Nowak apolog ized and said that he thought that he had discussed the condo conver sion and the profit split with Wheeler when they spoke on Thursday afte rnoon, that “the condo conver sion was the inte n t al l al o n g, ” and that he thought Wheeler would be the perf ect fit for this de al bec ause it wa s a “r isk-fre e opportunity to make betwe en $150K- 250K on a 2-3 y ear deposit of $150K.” Wheeler acknow ledg ed that he and Nowak had discussed a condo con v er s ion on Thursday , but testified that it did not involve a joint venture

. Wheeler testified that althoug h Nowak

never told him that he had the exclusive rig ht to buy t h e p ro p erties and that neither Nowak nor Sajovich ever offe red t o s el l h i m the proper ties for the list price of $900,000, he was under the impression that he was the person “in line to buy those proper ties.” He said Nowak “wa s may be a littl e bit vag ue about may be anothe r investor be ing in plac e,” but that befor e he came to Austin to l o o k at t h e proper

ties, Nowak told him “that investor or whoeve r he was talking about had fallen throug h.” Wheeler testified that he thought that the proper ties wer e either still in the ML S or that 9 “somehow they might have put a contra ct down alre ady , some, either in my name somehow, or for the bene fit of Craig Wheeler, or under eCounty , but it was my conclusion that I was coming down there and that those prope rties wer e ava ilable to me.”

Wheeler testified that he did file a complaint with the commission. He acknow ledg ed that 8 neither Sajovich or

Nowak w ere sanctioned. Nowak testified that he tol d Wheeler “it was under contra ct and I wouldn’t be talking to 9 him unless there wa s some way he could wor

k on it.” 10Although Sajovich prese nted the proposal to at least four other sets of investors, none

of them wanted to participa te in the joint venture

. On J uly 17, Sajovich informed the seller’ s ag ent that the funds for the proper ty might be coming from one of eCounty ’s investors or they might come from a loan that Sajovich would put down in his own name and that he was willing to offe r the seller

an additional $5,000 per building to sign the amendment that would provide the disclosures require d for him (as a licensed rea l-estate broker ) to purcha se as principal. Sajovich closed on the proper ties 1 0

on J uly 26, 2006 for a total purcha se price of $910,000. After making some improvements, he sold them approximately

ten months later for

a sale price of $1,030,000. Wheeler filed suit ag ainst the appellee s, asser ting ca u s es o f action for brea ch of
contra ct, brea ch of fiduciar y duty , and statutory fra u d in connec tion with the South 1st Street proper ties. Wheeler soug ht damag es for “the lost benef it of the barg ain on opportunities improperly usurped by [t he appellee s],” attorney ’s fee s, and exemplary damag es, as well as equitable disgor g ement of any profits and fee s the appellee s had obtained on the transac tions. The appellee s 1 1

answe red and filed counter claims ag ainst Wheeler for fra ud, brea ch of contra ct, tortious interfe renc e with ag ree ments, and def amation. After discovery , the appellee s filed a summary -judg ment motion as to all of Wheeler’ s claims. The appellee s contende d there was no evidenc e as to a ny element of Wheeler’ s brea ch-of -fiducia ry -duty claim, no evidenc e of an enfor cea ble contra ct that could b e a basis for Wheeler’ s brea ch-of

-contra ct or statutory fra

ud claims, and no evidenc e of a ny injury or damag es.

The seller

paid the broke rag e commission to Austin Advantag e on this transac tion. 1 0 Wheeler also soug ht an order compelling the appellee s to sell him the S o uth 1st Street 1 1 proper ties at the orig inal listed price. 11Whee ler filed a response with evidenc e. Following a hear ing, the district court g rante d the appellee s’

motion and order ed that Wheeler take nothing ag ainst any appellee

. The appellee s non-suited their
counter claims ag ai n s t Wheeler, and the district court rende red final judgme nt. Wheeler filed a motion for new tria l, which was ove rruled by opera tion of law. This appea l followed.

ANALYSIS I n two issues, Wheeler appea ls the district court’s final order g ranting appellee s’ summary -judg ment motion. I n his first issue, Wheeler arg ues that the summary -judg ment evidenc e raises fac t issues as to eac h element of his brea ch-of -fi d u ci ar y -dut y claim. I n his second issue, W h ee ler contends that the evidenc e raises fac t issues as to eac h element of his brea ch-o fcontra ct claim. We revie w the district court’s summary judgme nt de novo. Valence Operating Co.

v. Dorsett , 164 S.W .3d 656, 661 (Tex

. 2005); Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215 (Tex. 2003). A party moving for summary judgme nt mus t d em o n s t rate that there is no g enuine issue of materia l fac t and that he is entitled to judgme nt as a matter of law. Tex. R. C iv. P. 166a(c); Nixon v. Mr. Prop. Mgm t. Co. , 690 S.W .2d 546, 548 (Tex. 1985).

A no-evide nce summary -judg ment motion must be g rante d if, afte r an adequate time for discovery , (1) the moving party asser ts that there is no evidenc e of one or more essential elements of a claim or defe nse on which an adver se party would have the burden of proof at trial, and (2) the
nonmovant fails to produce more than a scintilla of summary -judg ment evidenc e raising a g enuine issue of materia l fac t on those elements. Tex. R. Civ. P. 166a(i). A no-evide nce summary judgme nt

12is e ssentially a direc ted verdic t g rante d befor e trial, to which we apply a leg al-suff iciency standard of review. King Ranch, Inc. v. Chapman , 118 S.W .3d 742, 750-51 (Te x . 2003); Perdue v . Patten Corp. , 142 S.W .3d 596, 603 (Tex. App.—Austin 2004, no pet.). A no-evide nce summary judgme nt will be sust ained when: (1) ther e i s a complete absenc e of evidenc e of a vit al fact; (2) the court is barr ed by rules of law or of evidenc e from g iving weig ht to the only evidenc e offe red to prove a vital fac t; (3) the evidenc e offe red to prove a vital fac t is no more than a scintilla; or (4) the evidenc e conclusively es t ab l ishes the opposite of a vital fac t. King Ranch , 118 S.W .3d at 751. We view the evidenc e in the light mo s t fa v o rable to the nonmovant, disreg arding all contra ry evidenc e and infere nces. Id. (citing Merre ll Dow Pharms., Inc. v. Havne r , 953 S.W .2d 706, 711 (Tex. 1997)). More than a scintilla of supporting evidenc e exis ts if the ev i d en ce wo uld allow rea sonable and fair-minded pe ople to differ in their conc lusions. Id. “L ess than a scintill a of evidenc e ex ists when the evidenc e is ‘so wea k as to do no more than cre ate a mere surmise or suspicion’ of a fac t.” Id. (quoting Kindred v. Con/Chem, Inc. , 650 S.W .2d 61, 63 (Tex. 1983)).

When, as here , the trial court do es not specify the basis for g ranting summary judgme nt, the appellant must demonstrate that eac h independe nt g rou n d al l eged is insufficient to support the judgme nt. See Star-Telegr am, Inc. v. Doe , 915 S.W .2d 471, 473 (Tex. 1995). We beg in by observing that appellee s’ summary -judg ment challeng e to evidenc e of damag es is f

atal to one of the two claims at issue on appea l. Wheeler, as noted, soug ht be nefit-of

the-ba rg ain damag es in the form of lost profits “on opportunities impro p e r ly u s u r p e d by [appellees].” Ge n era lly speaking , whether a plaintiff has incurre d any lost profits is deter mined by su b t ra ct i n g

13a plaintiff’s expenses from the g ross profits the plaintiff would have ear ned under a contra ct had the d efe ndant not brea ched. See Springs W indow Fashions Div., Inc. v. Blind Make r, Inc ., 184 S.W .3d 840, 884 (Tex. App.—Austin 2006, pet. g rante d, judgm’ t vacated w.r.m.). Whil e there was evidence that one or more appellees had made a profit on the purchase and subsequent resale of the South 1st Street proper ties following their renova tion, Wheeler did not prese nt evidenc e from which a fac t-finder could deter mine if W heele r would have made any profits had he been ab l e to purcha se the South 1st St ree t properties. Whee ler indica ted that his g oal, unlike that of appellee s, had been to purcha se the prop erties and rent them, althoug h he sug g ested that the opportunity for resa le that appellee s pursued “mig ht have been mine.” As far as the profits he would have made throug h renta ls, Wheeler sug g ested only that he could have been able to obtain tax deductions rela ted
to the proper

ties. The rec ord is simply devoid of evidenc e conce rning the renta l reve nue Wheeler 1 2

w ould ear n, expenses, and rela ted considerations that would enable the fac t-finder to deter mine, with the requisite “‘r easona

ble deg ree of cer

tainty and exactness,’” whether Wheeler would have ear ned any p rofits on the proper ties. See, e.g. , Texas Instruments, Inc. v. Teletron Energy Mgmt., Inc. ,

When asked to explain his damag es, Wheeler testified: 1 2

Could there have been a signific ant opportuni ty to make sever al hundred thousand dollars? I t’s hard to say . I , I know that Peter boug ht those proper ties for one amount and sold them, I believe, for, for a much larg er amount. That opportunity might have been mine. Over the long haul, it’s, it’s hard to c alculate , but I ’ve, I ’ve lost a lot of money in deductions that I could have m ad e on those proper ties. I g uess it’s been sever al y ear s now. I would be probably two y ear s into a 15-y ear loan on, on those proper ties. I ’d be that much closer to owning these proper ties my self, which was my orig inal g oal.

14877 S.W .2d 276, 279 (Tex. 1994) (quoting Southwestern Battery Corp. v. Owen , 115 S.W .2d 1097,

1098-99 (Te x . 1938)).

For this rea son, the district court proper ly g r a n ted summary judgme nt as to Wheeler’ s brea ch-of -contra ct claim, and we need not addre ss the parties’ rema ining contentions re g arding that claim. We overr

ule Wheeler’ s second issue. Howeve r, beca use Wheeler also soug ht equitable disgor g ement—a potential reme dy for brea ch of fiduciar y duty that does no t require proof of actua l damag es, see, e.g. , Johnson v. Brewer & Pritch a rd, P.C. , 73 S.W .3d 193, 200 (Tex. 2002)—we turn to whether Wheeler prese nted evidenc e raising a fac t issue as to the other elements of his bre ach- of-f iduciary -duty

claim, the foc us of his first issue. The elements of a brea ch-of -fiducia ry -duty claim are : (1) the exis tence of fiduciar y rela tionship, (2) a bre ach of duty by the fiducia

ry , and (3) resulting damag e to the client or benef it
to the fiduciary

. Burrow v. Arce , 997 S.W .2d 229, 237 (Tex. 1999); see also Bec k v. Law Offices of Edwin J. (

Ted) Terry, Jr., P.C. , 284 S.W .3d 4 1 6 , 4 2 9 (Tex. App.—Austin 2009, no pet.). Whether a fiduciar

y duty exis ts is a question of law. National Plan Admr’s, Inc. v. National Health Ins. Co. , 235 S.W .3d 695, 700 (Tex. 2007).

A fiduciar

y rela tionship exis ts when a person is under a duty to gi v e ad v i ce to or act for the benef

it of another upon matters within the scope of the rela tionship. Texas Bank & Trust Co. v. Moore , 595 S .W.2d 502, 507 (Tex. 1980); Stephanz v. Laird , 846 S.W .2d 895, 901 (Tex. App.—Houston [1st Dist.] 1993, writ denied)

. A fiduciar y duty may arise from either a formal rela tionship, which is rec og nized as a fiduciar y o n e by law or cre ated by contra ct, or an informal rela tionship involvin g a high deg ree of trust and confide nce. See Moore , 595 S.W .2d at 507-08.

15Wheel er h ad relied on the asser ted exis tence of a formal fiduciar y rela tionship arising from the Advantag e Agr eeme nt “and the conduct that arose from the contrac t.” The Te x as Supreme Court has rec og nized that an ag ency rela tionship is a ty pe of formal rela tionship that g ives rise to fiduciar y duties. See J

ohnson , 73 S.W .3d at 199-200. On a ppeal, Wheeler contends that he had a f iduciary rela tionship with the appellee s beca use “they wer e acting as rea l estate ag ents for him” and that “[i] n Texas, there is a c lear

fiduciar y duty any time one is acting as real estate ag ent[] and/or broke r[] .” See Chien v. Chen , 759 S.W .2d 484, 495 n . 7 (T ex . Ap p.—Austin 1988, no writ) (“A rea l-estate broker , in rela tion to his client, has many duties of disclosure and disinterested conduct that would not apply to him except that the law c hara cter izes the relationship as a ‘ fiduciar y rela tionship.’”). Wheeler also asser

ts that appellee s wer e his ag ents beca use eCounty held money “in trust” for him
at the time of the South 1st Street transac tion and that this age n cy re l ati onship g ave rise to a fiduciar y duty

. Wheeler asser

ts that the appellee s brea ched their fiduciar y duties as rea l-estate ag ents by secur ing a benef

it for themselves at his expense. He contends that they did not comply with their duty to make no m i s s t at em ents conce rning the subject matter of the transac tion and to fully and completely disclose to him all materia l fac ts that might aff ect him. Wheeler also contends that Sajovich improperly used t he money in t h e eC o u n t y client account as proof that he had sufficie nt funds fo r t h e down pay

ment on the South 1st Street proper ties beca use Sajovich attache d a pag e showing the acc ount balanc e to his letter and offe r to the seller’ s ag ent. The appellee s respond that any ag ency rela tionship betwee n Sajovich, Nowak, and Advantag e and Wheeler was d ef i n ed and limit ed by

the Advanta g e Ag ree ment and the e County ag ree ment.

16Wh il e an ag ency rela tionship imposes cer

tain fiduciar

y duties on the p a

r ti e s , J o h n s o n , 73 S.W .3d at 200, courts consider all aspec ts of t h e p ar ties’ rela tionship “whe n deter mining the
nature of fiduciar

y duties flowing betwee n the parties.” National Plan Admr’s , 235 S.W .3d at 700. Thus, when deter

mining the scope of an ag ent’s fiduciar y duty t o his principal, we must examine “not only the nature and purpose of the rela tionship, but also ag ree ments betwee n the ag ent and principal.” Id. A rea l-estate broker or salesper son is not a g ener al ag ent. I nstead, a rea l-estate broker

or salesper son is a specia l ag ent whose authority is g ener ally limit ed to the power s expressly confe rre d by the contra ct with the principal, which ty pically does no t include authority to bind the princi p al to the terms of a sale. Mec om v. Gallagher , 213 S.W .2d 304, 306 (Tex. Civ. App.—El Paso 1947, no writ); see also Joseph v. Jame s , No. 03-07-00197- CV, 2009 WL 2682608,
at *3 (Tex. App.—Austin Nov. 6, 2009, no pet.) (mem. op.) (ag ent had no authority to make binding offe r on beha lf of princ ipals).

I n Johnson , t h e s u p reme court approve d the Restatement (Second) of Ag ency ’s
statement reg arding the g ener al duty of an ag ent t h at “‘ [ u ] nless otherwise agreed , an ag ent is subject to a duty to his principal to act solely for the benef it of the principal in all matters connec ted with his ag ency .’” 73 S.W .3d at 200 (empha sis added)

. Thus, the ag ent and principal may alter by ag ree ment the duties owed b y t h e ag ent to the principal, including the duty to act solely for the principal’s be nefit in ag ency -re lated matter s. National Plan Adm’rs, Inc

. , 235 S.W .3d at 700. Whil e the contra ctual ag ree ment betwee n the parties g overns the s c ope of their ag entp ri n cipal rela tionship and may limit the fiduciar y duties owed to the principal, the supre m e co u rt

17has held “that a contra ctual obli g ation does not g ener ally g ive rise to a fiduciary duty

. . . and that

fiduciar y duties are equitable in nature and g ener ally not subject to hard and fast rules.” Id. at 702. Her e, assuming t hat t he Advantag e Agr ee m en t was still in eff ect at the relevant t ime, it expli citly limit ed the scope of the appellee s’ duties. Advantag e (the define d “B roker ”) ag ree d to “use Br oker’ s best eff orts to assist Client [W heele r] in acquir ing proper ty in the marke t are a” and t o “assist [W heele r] in neg otiating the acquisition of proper t y i n t h e marke t are a.” Wheeler ag ree d to exclusively use Advantag e’s service s in acquir ing and neg otiating the acquisit i on of proper ty in
t h e marke t are a. Wheeler also ag ree d to the “Competing Clients” provision, acknow ledg ing t h at Austin Advantag e:

may repr esent other prospec tive buy ers or tenants who may seek to acquir e proper ties that may be of interest to [W heele r]. [W heele r] ag ree s that [Advantag e] may , during the term of this ag ree ment and afte r it ends, repr esent such other prospec ts, show the other prospec ts the same proper ties that [Advantag e] shows to [W heele r], and act as a rea l estate broker for such other p ro spects in neg otiating the acquisition of proper ties that [W heele r] may

seek to a cquire

.

This lang uag e li mited any fiduciar y obliga tions that might other wise have exis ted by virtue of the ag ency rela tionship create d by

the Advanta g e Ag ree ment. 1 3 Adva n t age, Sajovich, as Advantag e’s owner /broker, and Nowak, as Advantag e’s ag ent, had two duties to Wheel er under the Advantag e Ag ree ment—to use best eff orts to help him locate proper

ty in the are a to purcha se and to assist him in neg otiating the acquisi t i o n i f he

Although w e do not unde rstand Wheeler to be rely ing on the eCounty Ag ree ment as the 1 3 basis for th e fi d u ciary duties he asser ts here , this ag ree ment was limit ed solely to purcha ses at fore closure auctions, which are not at issue here and, in any event , ex plicitly rec og nized that appellee s might prof

it from transac tions. 18deter

mined that he wanted to make an offe r on a particula r p ro p erty

. As for the latter duty , it is undisputed that eCounty alre ady h ad a contract pending on the S outh 1st Street properties s ever al day s befor e Wheeler first expressed to appellee s an interest in even viewing the proper ties, much less purcha sing them. Nor would the obliga tion to use “best eff orts” to help Wheeler locate proper ty for possible purcha se, espec ially g iven the “Competing Clients” limit ation, g ive rise to a fiduciar y duty that could have been violate d here

.

I n s h o r t, th e a ppellees fulfilled any obliga tions to Wheeler here by notify ing h im w h e n the South 1st Street proper ties wer e put on the marke t. And as mentioned above, any obliga tion to assist Wheeler with acquisition neg otiations would not have arisen un t i l after Wheeler indicated he wanted to make an offe r on a proper ty

. We hold that there was no fiduciar y duty that could have arisen by virtue of the Advantag e Ag ree ment that appellee s would have violated here

. See National P l a n Adm’rs, Inc. , 235 S.W .3d at 703 (“The prese nt Ag ree ment did not provide that [t he alleg ed ag ent] would g ener ally act on [t he alleg ed principal’s] behalf in all matters connec ted with their relatio n s h i p . . . . We decline to impose a gene ral fiduciary duty on [t he allege d ag ent] when
t h e p ar t i es expressly ag ree d that [t he alleg ed ag ent] could take actions that would be in violat i o n of such a duty .”). Wheeler also arg ues that money that eCounty held in its client acc ount at the time of the South 1st Street transac tions g ave rise to a fiduciar y duty that has been brea ched. Assuming the exis tence of a fiduciar

y duty with respe ct to appellee s’ handling of his money , Wheeler alleg es only

one brea ch—that Sajovich used the first pag e of eCounty ’s Marc h 1, 2006 - Marc h 31, 2006 clientacc ount bank statement, which showed the acc ount balanc e, as proof of funds for the down pay ment

19on the South 1st Street proper ties. Whil e there wa s ev i dence that the eCounty client acc ount included funds of Wheeler’ s when the South 1st S tree t properties w ere purcha sed in J une, ther e is

no evidenc e that the client acc ount balanc e shown in eCounty ’s Marc h bank statement that Sajovich used actua lly included any of Wheeler’ s funds, as opposed to funds of eCounty ’s other clients. Nor does Wheeler contend that appellee s actua lly used any money he deposited with eCounty to fund the proper ty purcha se. Wheeler also h as p re s ented no evidenc e that the appellee s obtained any secr et

or unauthorized benef

its beca use of their handling of the subject matter of the alleg ed ag ency . The Advantag e Ag ree ment disclos ed t h e p otential that the firm would show proper ty to others that Wheeler might be interested in and that it would work as a broker for ot h er s . Also, despite Wheeler’ s alleg ations that the app el l ee s brea ched their duty to not make misstatements about
t h e s u b j ec t m att er of the transac tion and to fully disclose all materia l fac ts that might aff ect him, he never explains what actionable misstatements the appellee s made or what information they failed
to disclose, an d we find no evidenc e of any such misstatements or omissions in the rec ord. Consequently , we find that there is no evidenc e of any fiduciar y rela tionship with the appellee s that was breac hed by their conduct rela ted to the S outh 1st Street t ransa ction. We overr ule W heele r’s first issue.

20CONCLUSION Having overr

uled both of Wheeler’ s issues, we aff irm the district court’s judgme nt.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Patterson, Pury ear and Pember

ton Affir med Filed: June 23, 2010

21