### 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. 03-17-00326- CV

Michael J. G ierut, Appellant

v. Nina Morrison and S choley-M orrison Com m uni ty Options, In c.

d/b /a Brooksid e F arm , Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 98TH JUDICI AL DISTRICT NO. D-1 -GN-1 5-0 0432 9, H ONO RAB LE K ARIN CRUMP , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N
Ap p el l ant Michae l Gierut seeks unpaid commissions from his former employ er Br ookside Fa

rm and its owner Nina Morrison (Appe llees). Gierut appea ls the district court’s order s striking his amende d petition and g ranting summary judgme nt dismiss ing his clai m s aga inst Appellee s. Finding no err or below, w e af firm the orde rs.

BACK GR OUND Until 2015, Gierut worke d at Br ookside Fa rm, a residen t ial and community -ca re fa ci l i t y that serve s adults with chronic mental illness in the Austin are a. Wit h Gierut no l o n ger employ ed at Br ookside Fa rm, the parties dispute whether A ppellees a re c ontrac tually obliga ted t o pay Gierut commissions on eac h client he rec ruited for as long as that client rema ins at Br ookside.I n 2011, Morrison hired Gierut, her friend and roommate, to marke t Br ookside Fa rm and rec ruit new clients. The parties never executed a written employ ment ag ree ment, but ag ree d that Gierut would rec eive a salary of $2,500 per month plus commission for new clients he recruited. 1 During his employ

ment, Gierut rec ruited seven new clients. He rec eived a flat-f ee m o n thly commission for at least one client, 40% commission for some clients, and 60% commission for other clients, in addition to his salary

. Morrison terminated Gierut’s employ ment in 2015, and Appellee s offe red Gierut $10,000 to sign a sever ance ag ree ment and g ener al rele ase of “all claims ag ainst the C o m pany , including those rela ting to his working rela tionship, the cessa tion there of or any o t h er matter.” Gierut reje cted the proposed ag ree ment and rele ase and sued Appellee s alleg ing brea ch of
contra ct, quantum meruit, and unjust enr ichment.

The timing of the following events in district court impacts our analy sis of the order
g ranting the motion to st rike:

J uly 11, 2016: Gierut took Morrison’s de position. Aug ust 30, 2016: The discovery period c losed. Dec ember

19, 2016: Appellees f

iled a motion for summary judgme nt.

Gierut alleg es that, under the parties’ initial oral ag ree ment, his commission was to be 60% 1 of “g ross reve nues” from eac h client he rec ruited. Morrison testified that the parties initially ag ree d Gierut would rec eive “up to 60% of reve nues” for eac h client he rec ruited, but that t h ere was no g uara ntee of 60% commi ssion eac h month. Reg ard l es s o f the parties’ initial understanding s, it is undisputed that Gierut was not paid a 60% commi ssion on eac h of t he seven clients he ult imat ely rec ruited to Br ookside during his three -and- a-ha lf y ea rs as an employ ee. And Gierut admits that there wer e “ag ree d reduc tions [i n commissions] for cer tain clients.” Gierut alleg es that he took issue with this orally , but he point s to no evidence in the rec ord to sug g est that he ever complained that his compensation was imprope r during his employ ment at B rookside. 2J anuar y 9, 2017: Appellee s filed a notice of hear ing on their motion for summary judgme nt, scheduling that hear ing f

or F ebrua ry 21, 2017. J anuar y 31, 2017: Gierut filed an amende d petition adding new cause s of action for responde at superior, simple fra ud, and fra

udulent inducement based on Morrison’s deposition testimony

. Fe bruar y 7, 2017: Appellees move d to strike Gierut’s a mended pe tition. Fe bruar y 21, 2017: District court hear d arg ument on Appellee s’ motion for sum m ar y judgme nt and motion to st rike. Fe bruar y 28, 2017: District court g rante d both motions

.
Gierut filed a motion for new trial which was denied by op er at i o n o f law, and subsequently

perf ecte d this appeal.

LEGAL STANDARDS We revie w a g rant of summary judgme nt de novo. See, e.g. , Twi n Creeks Golf Grp., L.P. v. Sunset Ridge Owners Ass’n , 537 S.W .3d 535, 539 (Tex. App.—Austin 2017, no pet.) (citing Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005)). Under this standard, we “take
as true a ll e vidence favor able to the non-moving party , and we indulge ever y rea sonable infe renc e and resolve any doubts in the non-moving party ’s favor .” Id. When, as here , the trial court does not specify the g rounds on which it g rante d summary judgme nt, we “must aff irm if any of the g rounds
assert ed i n t he motion are meritorious.” Community Health Sys. Prof’l Servs. Corp. v. Hansen , 525 S.W .3d 671, 680 (Tex. 2017) (citation omitted). “[W ]hen the motion asser ts both no-evide nce and traditio n al g rounds, we first revie w the no-evide nce g rounds.” Id. (citing Ford Motor Co. v. Ridgway , 135 S.W .3d 598, 600 (Tex. 2004)). “If t h e n o n m ovant fails to produce more than a

3scint i l l a o f ev idence on the essential elements of a cause of action challeng ed by a no-evide nce

motion, there is no need to analy ze the m ovant’s t raditional grounds for summary judgme nt.” Id.
at 680–81 (citing Tex. R. Civ. P. 166a(i))

. I f we do not find the g rounds as s er t ed i n s upport of no-evide nce summary judgme nt meritorious, we assess any traditional summary judgme nt g rounds. Id. To obtain traditio n al summary judgme nt, the movant must show “that no g enuine issue of materia l fac t exis ts and that [t he movant] is entit l ed t o j u d g ment as a matter of law.” Id. at 680 (citing Tex. R. C iv. P. 166a(c ); Provident L ife & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 216 (Tex. 2003)). I f the movant satisfies this initial tradition al summary judgme nt burden, the burden shifts to the nonmovant to p ro d u ce ev i d en ce raising an issue of fac t. See Tex. R. Civ. P. 166a(c ); Amedisys, Inc. v . Kingwood Home Health Care, LLC , 437 S.W .3d 507, 517 (Tex. 2014)

. A g enuine issue of materia l fac t exis ts if the rec ord evidenc e “would enabl e re as onable and fair- mind ed p eo p le t o differ in their conclusions.” First United Pentecostal Church of Beaumont

v. Parker , 514 S

. W .3d 214, 219 (Tex. 2017) (quoting Merre ll Dow Pharm., Inc. v. Havne r , 953 S.W .2d 706, 711 (Tex. 1997)).

We r eview an order striking an amende d pleading for abuse of discretion. See, e.g. , State Bar of Texas v. Kilpatrick , 874 S.W .2d 656, 658 (Tex. 1994).

DISCUSSIO N I. I n his first is s u e, Gierut arg ues that the district court “er red in g ranting summary judgme nt beca

use there is a g enuine issue of materia l fac t reg arding Gi erut’s entitlement to commission pay

ments from Appellees per his oral at-will employ ment contra ct.” Appellees filed
4a hy

brid summary judgme nt motion that included both traditional an d n o-evide nce g rounds. We addre ss Gierut’s three claims of brea ch of contra ct, quantum meruit, and unjust enric hment in turn, beg inning our analy sis of each under t h e n o -e v idence fra mework. See, e.g. , Hansen , 525 S.W .3d at 680.
Breach of Contract

Appellee s soug ht no-evide nce summary judgme nt on Gierut’s brea ch of contra ct claim on the g round that no contra ct, implied or in fac t, exis ted betwee n the parties. Alterna tively , Appellee s soug ht traditional summary judgme n t o n the g round that the statute of fra uds would rende r any contra ct t hat di d exis t betwee n the parties unenforc eable . Gierut c ounters that the parties had

a specific ag ree ment entitling him to particula r commissions for the life of his recruits’ tenure at Br ookside, and that the statute of fra uds does not apply

to that ag ree ment. The elements of a brea ch-of -contra ct claim are (1) the exis tence of a valid contra ct; (2) the plaintiff perf

o rm ed o r tender ed perf

ormanc e as the contra ct require d; (3) the defe ndant brea ched the contra ct by failing to perf orm or tender perf

ormanc e as the contra ct require d; and (4) the plain t i ff sustained damag es as a result of t he breac h. USAA T ex. Lloyds Co. v. Menchac a , 545 S.W .3d 479, 502, n. 2 1 (Tex. 2018). Appellee s arg ue that there is no evidenc e of the first element: the e x istence of

a valid contr act. I n support of their no-e vidence motion, Appellees cite 2

“The differ ence between contra cts formed throug h express promises and those formed 2 throug h implied pr omises is the means by which the contra cts are formed.” Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W .3d 844, 850 (Tex. 2009). Gene rally speaking , the terms of an express contra ct are recited by the parties, while an impl ied contract arises from the parties’ conduct. Haws & Garrett Gen. Cont ractors, Inc. v. Gorbett Bros. W elding Co. , 480 S.W .2d 607, 609 (Tex. 1972); s ee also, e.g. , Restatement (Second) of Contracts § 4 cmt. a (1981) (st ating that 5Montgomery County Hospital District v. Brown , 965 S.W .2d 501, 502 (Tex

. 1 998), for the

proposition that—absent express ag ree ment to the contra ry —employ ment may be terminated at will by either party with or wit hout cause . This g ener al principle does not resolve the inquiry beca use Gierut does not arg ue in this appea l that he had a contra ct for non-terminable employ ment. Rather, he ar g ues that he ha d a contra ct for non-terminable commissions on the clients he rec ruited for the duration of the clients’ tenure at Br ookside, reg ardle ss of whether Gierut was still employ ed there

. Thus, in assessing the brea ch of contra ct cl aim , the question is whether Gierut had a contra ct entitling him to post-termination commissions, not whether Gier ut’s status as an a t-will employ ee

was altere d by ag ree m en t

. S ee generally In re 24R, Inc. , 324 S.W .3d 564, 566–67 (Tex. 2010) (“A t-will employ

ment does not prec lude empl o y ers and employ ees from forming subsequent
contra cts, ‘so long as neither par t y relies on continued employ ment as consideration for the
contra ct.’” (citation omitted)).

Gierut’s singl e citation to Kalmus v. Ell a Oliver & Financial Nece ssities Network, Inc. , 390 S.W .3d 586 (Tex. App.—Dallas 2012, no pet.), does not resolve this inquiry

. Gierut cites Kalmus for the proposition that an at-will employ ee may enfor ce an ag ree ment to pay commissions afte r his termination. The issue in Kalmus , howeve r, was whether the district court proper ly g rante d a former empl o y er ’s “m o t i on for summ ary judgme nt [which] was based entirely on the s tatute of frauds .” Id. at 591 (empha sis added)

. The court of appea ls there conclude d that the evidenc e befor e it “shows only an oral at-will employ ment ag ree ment with an indefinite duration, and s u ch

“[t] he distinction” betwee n express and implied contrac ts “lies mere ly in the mode of manife sting assent”)

. 6ag ree ments do not fall within the statute of fra uds.” Id. at 593 (citing Montgomery Cty. , 965 S.W .2d
at 503). But it did not consider the no-evide nce summary judgme nt arg ument Appellee s raise here : whether there was any enfor cea ble ag ree ment at all. We n ee d n ot consider whether the alleg ed
ag ree ment violates the statute of fra uds (Appe llees’ traditional summary judgme nt arg ument) unless

we find evidenc e to support the exis tence of such ag ree ment in the first place

. See, e.g. , Hansen , 525 S.W .3d at 680–81 (“I f the nonmovant fails to produce more than a scintilla of evidenc e on the essential el em en t s o f a cause of action challeng ed by a no-evide nce motion, there is no need to analy ze the movant’s traditional g rounds for summar y judgme nt.”). To prove the fi rst element of a brea ch of contra ct claim—the exis tence of a valid
contra ct—a plaintiff must show:
(1) an offe r was made; (2) the other p arty acc epted in strict compliance with the terms of the of

fer ; (3) the parties had a

meeting of the minds on the essential ter ms of the contra ct (mutual assent); (4) eac h party consente d to those terms; and (5) the parties executed and delivere d the contract with the intent that it be mutual and binding.

Menc haca , 545 S.W .3d at 502, n.21(citation omitted). On the brief s and our revie w of the rec ord, Gierut has identified no evidenc e of a contra ct entitling him to commission afte r his empl oy ment ended. “[A] g ener al ref

ere nce to a voluminous rec ord which does not direc t the trial court and parties to the evidenc e on which the movant relies is insufficient” to g ener ate a g enuine issue of fac t. Rogers v. Ricane Enters., Inc. , 772 S.W .2d 76, 81 (Tex. 1989). “[C] ourts ‘ar e not require d to sear ch the rec ord without g uidance .’” Brookshire Katy Drainage Dist. v. Lily Gardens, LLC , 333 S.W .3d 301, 308 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (quoting Aleman v. Ben E. Keith Co. ,

7227 S.W .3d 304, 309 (Tex. App.—Houston [1st Dist.] 2007, no pet.)) ; s ee also Tex. R. App. P.

38.1(i), 38.2(a) (re quiring appellate briefs to include “appr opriate citations to au t h o ri ties and to the re cord” ). Gie r

u t’ s b r ie f id e n tif

ies evidenc e that Gierut rec eived a salary and commissions while

em p l o y ed but only attempts to show a contra ct for post-employ ment commissions with a curso ry ref ere nce to f

our pag es of Morr ison’s deposition testim ony . I n her de position, Morrison testified 3 as follows re g arding

Gierut’s f

lat-fe e mont hly

commission for “CO,” one of the first reside nts he 4

rec ruited:
Q. Do y ou reme mber why y ou ag ree d to a flat fe e for CO? A. No, I

don’t reme mber why

. Q. [W ]as it y our understanding that ever y month CO lived at Br ookside Fa rms [si c] Mike got a

commission of $1,500? A. Well, I was try

ing to g et his pay

wher e it neede d to be and that was the first step.

. . . Q. [Y] ou didn’t ag ree to pay Mike [Gierut] a $ 1 , 5 0 0 commission for CO only for the month of Ma

y 2012? A. Correc t. Q. I t was as long as CO was a resident here at Br ookside Farm y ou’re g etting y our $1,500 ea ch month.

Gierut offers no leg al authority to support his arg ument that Appellee s’ offe r to pay him 3 $10,000 in exchang e for a rele ase of his potential claims ag ainst them is evidenc e of a valid contra ct betwee n the par

ties, and finding none, we reje ct this arg ument. We refe r to specif

ic B rookside re sidents by initials onl y

to protect their pr ivacy

. 4 8A. I don’t reme mber ha ving a conver sation about that.

. . . Q. What do y ou think the ag ree ment was? A. That wa s one of the f irst clients and that wa s a base for building y our pay . Q. Okay . But how long wer e y ou g oing to pa y the $1,500 re lated to CO? A. Until she left on her own dec ision. Q. That’s wha t I

was a sking. A. I mean, Ididn’t have a cog nitive thought process to that. We didn’t have a discussion about that. Q. Was Mike subject to whateve r y ou decide d in te rms of if y ou wanted to pay the commi ssion and how much? I n o ther words, wer e y ou the one that g ot to dictate that number

and leng th of time? A. My g oal wa s t o get h im to [$] 10,000 a month and I did that. And y es, y ou could say I dictated but we also had conver sations

. . . . And there was many times that it di dn’t—it wasn’t 60 per cent a nd he did not complain.

Consist ent with Morrison’s depositi on testimony , Gierut testified that he did not rec all the par ties discussing w hat would happe n to his commiss ions if he stopped working at B rookside F arm.

On this rec ord, the require d “mee ting of the mi n d s ” was never rea ched as to any contra ct for Gierut to be paid commissions in the event that his employ ment was terminated. E.g. , Menc haca , 545 S.W .3d at 502, n.21 (noting that meeting of minds is require d to establish contra ct); Exc ess Underwriters at Lloyd’s, London v. Frank’s Casing Crew & Rental Tools, Inc. , 246 S.W .3d 42, 48–49 (Tex. 2008) (“A s we rea ffirme d i n Ma t agorda County , ‘a meeting of the minds is an

e s s e n ti a l e le me nt of an implied-in-fac t contra ct.’” (citations omitted)). Notably , Gier u t’ s b r ie f q

u o te s
9only the portion of Morrison’s deposition indicating that commission pay ments would continue until resident CO left the fac il i t y . But Morrison’s testimony about how long she intended to pay commission does not establish a contra ct betwe en the pa rties. See M

enchac a , 545 S.W .3d at 502, n.21. And, in any event, she also testified that she “didn’t h ave a cog nitive thought proce ss”
reg arding the eventua lity that Gierut might be terminated, and Gierut testified that he did not rec all

a discussion on that point. Wit hout contemplating or discussing this possibili ty , the parties cannot have f ormed a contra ct to g overn tha t circumstanc e. Id

. I n addition to the cursor

y citation to deposition testimony , Gierut attemp t s t o re l y upon a conclusory aff

idavit appende d to his response to Appellee s’ motion for summary judgme nt. I n that aff idavit, Gierut indicated that he insisted upon an ag ree ment that “B rookside Fa rm could not
cut off my commissions by terminating me or fre ezing my ear nings.” T h i s is not competent summary judgme nt evidenc e beca use it contradicts his ear lier testimony that the parties never d i s cu s s ed wh at would happen if his employ ment at Br ookside ended. See, e.g. , Tex. R. Civ. P

. 166(a) (“ A s u m m ar y judgme nt may be based on uncontrove rted testimonial evidenc e of an interested witness

. . . if the evidenc e is clea r, positive and direc t, othe rwise cre dible and fre e from
contra dictions and inconsistencies, a nd could have been rea dily controve rted.” ). Thus, there is no evidenc e of a contra ct for Appellee s to pay Gierut post-termination co m m i ssion. Be cause the

rec ord supports no-evide nce s u m m ar y j u dg ment on Gierut’s brea ch of contra ct claim, we do not addre ss A p p e ll e e s ’ tr a d it io n a l s u

mm a r y ju d g ment arg ument that any contra ct betwee n the parties was unenfor cea

ble under the statute of fra uds. See Hansen , 525 S.W .3d

. at 680–81 (citing Tex. R. Civ. P. 166a(i)).

10Quantu m Meruit Appellee s urg e that Gierut’s quantum meruit claim fails beca use there is no evidenc e of rea sonable notice that Gierut expected to be paid the money he seeks i n t h is lawsuit, and

rea sonable notice is an essential elem en t o f s u ch claim. Gierut counter s that Appellee s wer e on notice of his expectations. Quantum meruit is an equitable theory of rec overy based on an implied
ag ree ment to pay for benef its rec eived. Heldenfe ls Bros., Inc. v. City of Corpus Christ i , 832 S.W .2d 39, 41 (T ex . 1 9 9 2 ). “‘The purpose of this common law doctrine is to preve nt a party from being ‘u n justly enric hed’ by ‘re tain[i ng ] the benefits of t he .

. . perf ormanc e without pay ing any t h i n g i n return.’ ” Hill v. Shamoun & Norman, LLP , 544 S.W .3d 7 2 4 , 7 3 2 (Tex

. 2018) (quoting Truly v. Austin , 744 S.W

. 2 d 9 3 4 , 938 (Tex. 1988)) (alter ation orig inal). A quantum meruit plaintiff must prove:
(1) va luable ser

vices we re r ender ed or ma terials fur nished; (2) f or the pe rson soug ht to be char g ed; (3) those service s and materials were acce pted by the person soug ht to be charg ed, and we re use d and enjoy ed by him; and (4) the person soug ht to be char g ed was rea sonably notified that th e plaintiff perf orming such services or furnishing such m ater ials wa s ex p ecting to be paid by the per son sought to be c harg ed.

Id. at 732–33 (citing Vortt Expl. Co. v. Chevron U.S.A., Inc. , 787 S.W .2d 942, 944 (Tex. 1990)). The rig ht to recove r under a theor y of quantum meruit is independent of a ny contra ct. Vortt Expl. C o . , 7 8 7 S

. W .2d at 944; see also W oodard v. Southwest States, Inc. , 384 S.W .2d 674, 675 (Tex

. 1964) (“Rec overy on an express contra ct and on quantum meruit are inconsistent.”). I f succe ssful,
11“[t] he mea sure of damag es for rec overy under a quantum-meruit theory is the reasonable value of

the work pe rfor

med and the ma terials fur nished.” Hill , 544 S.W .3d at 733 (citation omitted). Gierut’s brief does not offe r any leg al authorit y t o s u p port reve rsal of the district court’s g rant of summary judgme nt on his quantum meruit claim. I t instead repe ats the same fac tual

ar gu m en t made in support of Gierut’s brea ch of contra ct theory

. We find no reliable summ ar y judgme nt evidenc e that, during his employ ment, Gierut ever notified Appellee s that he expected to be paid any

thing more than what Appellee s have alre ady paid him. I n attempting to show rea sonable notice, Gierut relies upon an email he sent to Morrison on September 12, 2013, listi ng commissions he believed wer e due to him for the month. He acknow ledg es, howeve r, that the amount reque sted in his email is “the exact amount Br ookside Fa rm paid Gierut in September 2013.” And acc ording
to hi s b ri ef

, Gierut is not challeng ing the amounts he was paid during his employ ment. Rather, h e i s s eeking commission on client pay ments made afte r his termination. This email listi n g 5 commissions paid in full during Gierut’s employ ment is plainly insufficient to have g iven Appellee s

rea sonable notice that, in the event he was terminat ed , Gi erut expected that he would continue to

rec eive c ommissi ons.

I ndeed, rea sonable notice “foc uses on what the rec ipient o f the service s knew

or should have known at the time the service s wer e acc epted.” Myre x Indus., Inc. v. Ortolon , 126 S.W .3d 548, 551 (Tex. App.—Houston [14t h Dist.] 2003, pet. denied)

. I n deter mining whether

For example, Gierut s t ates in his brief that “[t] here is no dispute Gierut was paid and 5 acc epted the limit ed reduc tions to the commissions

. . . shown in Br ookside Fa rm’s pay ment rec ords. And he is not attempting to chang e those ag ree d modifications. He was terminated from Br ookside Fa rm and now r equests full pay ment of his ear

ned commissions at the ag ree d perc entag es.” 12Gierut prese nted evidenc e of rea sonable notice that he expected to be paid post-termination

commissions, we ag ree with the approa ch our sister court took in Myre x , which involved a f

ormer salesman (Ortolon) who—at the time he resig ned—dema nded commissions on projec ts he sold for My rex that had not y et “closed.” Id. The c ourt of appeals found it dispositi ve that “Or tolon does
not point to any evidenc e of My rex’s willingness to pay commissions for his projec ts t h at closed afte r he resig ned.” Id. at 552. This was so “[r]ega rdless of Ortolon’s interpre tation of” the parties’
ag ree ment reg arding commissions. Id. at 551–52. Wit hout evidenc e that My rex was willing to pay commissions afte r Ortolon resig ned, Ortolon could not show that his service s “we re acc epted by the
person soug ht to be char g ed

. . . under such circ umstances as rea sonably notified the person . . . that the plaintiff in perf

orming such service s was expecting to be paid.” Id. at 551 (quoting Heldenfe ls Bros. , 832 S.W .2d at 41) (a lterations and e mphasis in Myre x ). The only evidenc e Gierut’s brief offe rs to support rea sonable notice that he expected
to b e p ai d co m m issions even in the event he was terminated is his own conclusory , contra dicted, self-se rving aff

idavit, which is not competent summ ary judgme nt evidenc e for the reasons set out above. See, e.g. , Tex. R. Civ. P. 166(a)

. This is insufficient to raise a fac t issue reg arding whether Appellee s as “the rec ipient of the service s knew or should have known at the time the service s wer e

acc epted” that Gierut expected to b e p ai d co m m issions even afte r he was terminated. Myre x , 1 2 6 S.W .3d at 551. Finding no such evidence, we conclude t hat no-evidence summary judgme n t

on Gierut’s quantum meruit claim was proper ly g rante d. Acc ording ly , we do not rea ch Appellee s’ traditional summary judgme nt a rg ument on that claim. See, e.g. , Hansen , 525 S.W .3d

. at 680–81.

13Unjus t En richm ent Appellee s soug ht no-evide nce summary judgme nt on Gierut’s unjust enric hment claim, arg uing that (1) unjust en ri ch m en t i s n o t an independe nt cause of action, and (2) even if it

wer e, Gierut did not demonstrate any fra ud, duress, or the taking of undue advanta g e. I n response , Gierut contends that “[e]ach resident procur ed by Gierut that rema ins a t B rookside Fa rm is pa y ing

over $5,000 a month,” and that “[t] o allow Appellee s to terminate Gierut’s employ ment and cut off the ag ree d compensa tion is unjust enr i chment—Appe llees keep the benef its without pay ing the costs.” Unjust enric hment is “a measure of damag es, not a cause of action.” City of Harke r Heights

v. Sun Meadows Land, Ltd. , 830 S.W .2d 313, 317 (Tex. App.—Austin 1992, no writ). Be cause we find no support for Gierut’s brea ch of contra ct or quantum meruit claims, we find no basis on which he could rec over for unjust enric hment: without a cause of action, there is no need for any “mea sure of dama g es.” See id. 6

II.

I n his second issue, Gierut arg ues that the district court err ed in g ranting Appellee s’ motion to strike his amende d petition adding alleg ations of simple fra ud, fra udulent inducement, and responde at superior. Appellee s urg e th at Gierut’s amendment was prejudicia l and amounted to unfair surprise on its fac e beca use it resha

ped the nature of the case ; that they prese nted evidenc e of surprise or prejudice insofar as the delay in amending resulted from Gierut’s lack of diligenc e; and

Gierut also alleg es that he has a fra ud claim ag ainst Br ookside Fa rm. He admits, howeve r, 6 that he did not asser

t this claim in his orig inal petition, and instead, only asser ted it in his amende d petition, which the district court struck. Be cause the merits of this claim wer e not befor e the district court, we do not reviewthem here

. See Tex. R. App. P . 33.1. 14that the statute of limit ations barr ed Gierut’s newly pleade d claims. Gierut arg ues that there was no

unfair surprise or prejudice since he filed his am en d ed p et i tion “thre e wee ks befor e the summary judgme nt hear ing and months befor e trial;” that he need not show g ood cause fo r d el ay i ng his amendment until the end of the discovery period; and that limit ations does not ba r his ne w claims. “A trial court’s decision on whether to allow the amendment of pleading s is revie wed under an abuse- of-discr etion standard.” Perez v. Embree Const. Grp., Inc. , 228 S.W .3d 875, 882–83 (Tex. App.—Austin 2007, pet. denied) (citation omitted). That discretion is g uided by Texas Rule of Civil Procedur e 63, which provides that “Parties may amend their

pleading s . . . at such time as
not to opera

te as a surprise to the opposite pa rty .” Te x . R. Civ. P. 63. Consist ent wit h this Rule, 7 “A trial court must permit a pleading amendment unless (1 ) t h e opposi ng party prese nts evidenc e of surprise or prejudice or (2) the amendment asser ts a new ca u se of action or defe nse, and thus is prejudicia l on its fac e, and the opposing party objects to the amendment.” Dunbar v. El Khaoua , No. 03-14-00345- CV, 2015 WL 4999089, at *3 (Tex. App.—Austin Aug

. 21, 2015, n o pet.) (mem. op.) (citing Gree nhalgh v. Servic e Lloyds Ins. Co. , 787 S.W .2d 938, 939 (Tex. 1990); Thomas

v. Graham Mortg. C o r

p . , 4 08 S.W .3d 581, 593 (Tex. App.—Austin 2013, pet. denied) ); see also F.R. v. Texas Dep’ t of

Family & Protective Servs. , No. 03-17-00487- CV, 2017 WL 6503082, at *19 (Tex. App—Austin Dec. 15, 2017, no pe t.) (mem op.) ( same).

L eave of court is require d if a party seeks to amend in the seven day s leading up to a trial 7 or hear ing on a motion for summary judgme nt, but this is not implicat ed b y t h e fa ct s here

. See generally Tex. R. C iv. P. 63 (re quiring leave to amend within 7 day s of t rial); Thomas v. Graham Mortg. Corp. , 408 S.W .3d 581, 593 (Tex. App.—Austin 2013, pet. denied) (“A summary -judg ment proce eding is a trial within the meaning of rul e 6 3 ; t h u s , a party must seek leave of court befor e filing an amende d pleading within seven day s of a summary -judg ment hear ing.” ) (citing IKB Indus. ( Nigeria) , Ltd. v. Pro–Line Corp. , 938 S.W .2d 440, 441 (Tex. 1997)). 15Be cause Gierut’s amendment added new cause s of action and Appellee s o b je c te d , the trial court had discretion to ref use t he amendment. E.g. , Gree nhalgh , 787 S.W .2d at 939. When,

as here , amendments “which introduce new substantive matter have been ref used by the trial court under Rule 63, the burden of showing an abuse of discretion is on the complaining party , rathe r than

on the opposite party

to show surprise.” Hardin v. Hardin , 597 S.W .2d 347, 349 (Tex. 1980) ; see also, e.g. , Perez , 228 S.W .3d at 883 (“I f an amendment is prejudicia l on its fac e, the opposing party does not bear the burden of showing prejudice or surprise, as such a showing ‘may be based on the trial court’s conclusion that t h e amendment on its fac e is calc ulated to surprise or that the amendment would resha

pe the cause of action, prejudicing the opposing party and u n n ec essarily delay ing the trial.’”) (quoting Hardin , 597 S.W .2d at 349). “When re viewing matters committed 8
to a t ri al co u rt’s discretion,” we “may not substitut e [our] own judgme nt for the trial court’s judgme nt,” nor may we “set aside the trial court’s finding unless it is clea r from the rec ord that the trial court could only rea ch one decision.” In re Nitl a S.A. de C.V. , 92 S.W .3d 419, 422 (Tex. 2002).

On t h e rec ord befor e us, the trial court rea sonably could have conclude d “that the amendment on its fac e is calc ulated to surprise,” and reje cted it acc ording ly

. Perez , 228 S.W .3d at 883 (quoting Hardin , 597 S.W .2d at 349). Gierut asser ted that he obtained the evidenc e supporting his new claims at Morrison’s J uly 11, 2 016 deposition. Yet he did not amend his petition in the approximately one-a

nd-a- half m onths then rema ining in the discovery period, which would have

We have also stated that “[a]n amendment adding a n ew cause of action or defe nse 8 opera tes as a surprise and is prejudicia l on its fac e if it (1) resha pes the nature of the case , (2) could not have been anticipated, and (3) p re j u d i ces the plaintiff’s prese ntation of the case .” Thomas , 408 S.W .3d at 593 (c itation omit ted). 16g iven Appellee s an opportunity to conduct any addit ional discovery they believed nece ssary to

defe nd agai n s t those claims in the district court. And when Appellee s moved for summary judgme nt, Gierut still did not amend his petition. I nstead, he waited near ly a month and a half afte r Appellee s soug ht summary judgme nt (and approximately six and a h al f months afte r Morrison’s deposition). I n fac t, he waited until afte r the hear ing on Appellee s’ summary judgme nt motion had been sc heduled to asse rt these a dditional causes of action. Given the timing of these e vents in the
context of the entire rec ord, the distric t court could rea sonably have conclude d that this was g amesmanship “ca lculated to surprise” Appellee s. As the objecting party , Gierut has not car ried his burden to show other

wise. See, e .g. , Hardin , 597 S.W .2d at 349. I n deed, while delay alone might be insufficient to find that an amendment i s “ca lculated to surprise,” we revie w the district court’s exercise of discretion in the context of the entire case . Gierut emphasizes that his amendment was filed “thre e months befor e trial,” urg ing that this allowed Appellee s ample time to prepa re to defe nd ag ainst the new claims he raised. But beca use “[a] summary -judg ment proce eding is a trial wi t h i n t h e m eaning of rule 63,” Thomas , 408 S.W .3d at 593, we consider Gierut’s amendment as if it had been filed three wee ks befor e a trial

on the merits for purposes of whether it was calc ulated to surprise. “When the rec ord shows a lack of diligenc e in bring ing the amendment and when the matter appea rs to h av e b ee n k n o wn by the party seeking to amend and is not based on any newly discovere d fac ts, the court does not abuse its discretion in r efusing to a llow the amendment.” Rough Creek Lodge Operating, L.P. v. Double K Homes, Inc. , 278 S.W .3d 501, 509 (Tex. App.—Eastland 2009, no pet.). Gierut has not shown that 9

Gierut attempts to distinguis h R o u gh Creek Lodge , which dealt with a trial amendment 9 under Te x as Rule of Civil Procedure 66, while this case involves a pretria l amendment. B ut Rule 17the district court abused its discretion in deny ing his amendment here

. Finding a basis upon which

the district court could rea sonably have conclude d that “the amendment on its fac e [was] calc ulated
to surprise,” we find that it acte d wi t h i n its discretion and do not rea ch the issue of whether the amendment “would resha pe the cause of action, prejudicing the oppos ing party and unne cessa rily delay ing the trial.” See P erez , 228 S.W .3d at 883 (quoting Hardin , 597 S.W .2d at 349).

CONCLUSION Finding no err or below, we aff irm the district court’s order s g ranting Appellee s’ motion for summary

judgme nt and motion to st rike Gie rut’s ame nded petition.

________________________________________ Michae l Toth, J ustice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Toth Affir med Filed: De cembe r 21, 2018

63 cover s both trial amendments and pretria l amendments. See Halmos v. Bombardier Aerospace Corp. , 314 S.W .3d 606, 623 (T ex . Ap p .—Dallas 2010, no pet.) (citing Tex. R. Civ. P. 63; Smith Detec tive Age ncy &

Nightw atch Serv ., Inc. v. Stanley Smith Se c., Inc

. , 938 S.W .2d 743, 748 (Tex. App.—Dallas 1996, writ denied) ). “Case law co n ce rn i ng the trial court’s discretion to allow or strike amende d pleading s makes no distinction in the standard to be applied under rules 63 and 66.” Id. (citing Gree nhalgh v. Serv ice Lloyds Ins. Co. , 787 S.W .2d 938, 939 (Tex. 1990)). 18