1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

________________ NO. 09-23-00047- CV



### ________________ DOCKSIDE MARINE, L.L.C., APPELLANT
V. JOSHUA WALKER, BRYAN BROWN, AND HTX WATERSPORTS, L.L.C., APPELLEES

________________________________________________________________________ On Appeal from the 457 th District Court Montgomery County, Texas Trial Cause No. 20-06-07358- CV

________________________________________________________________________ MEMORANDUM OPINION Dockside Marine , L.L.C. (“Dockside”) appeals the trial court ’ s grant of a T raditional and No-E vidence S ummary J udgment for Joshua Walker (“Walker”) , HTX Watersports L.L.C. (“HTX”) , and Bryan Brown (“Brown”) (“collectively Appellees)

. In five issues, Dockside challenges the trial court ’ s grant of summary judgment on the following causes of action : t heft of p roperty under the Texas Theft Liability Act ; conversion; b reach of f iduciary d uty ; t ortious i nterferenc e with an2 e xisting c ontract ; and c ivil c onspiracy

. As explained below, w e affirm in part, and reverse and remand in part.
I. BACKGROUND Dockside Marine is a boat dealership in Lake Conroe that was granted an “exclusive license” to sell MasterCraft b oats in the Greater Houston area

. According to Dockside, it had an exclusive distributorship agreement with MasterCraft Boat Company ( “ MasterCraft ” ) until 2022 to sell MasterCraft boats in the Greater
Houston a rea at its Lake Conroe dealership

. In 2009, Dockside hired Walker as a salesperson, and in 2015, promoted him to General Manager. In early 2020, Walker resigned as Dockside’s General Manager. After resigning from Dockside, Walker was hired as a General Manager at the newly formed dealership HTX, formed by
Brown . Before forming HTX, Brown had been a customer of Dockside

. In March 2020, MasterCraft sent notices of default to Dockside for “ refusal to pay for the Boats and Trailers that Dockside ordered from MasterCraft .” Then, in May 2020, MasterCraft terminated its relationship with Dockside and cont r acted with HTX to be its exclusive MasterCraft dealer. Dockside alleged that HTX began advertising it was selling MasterCraft boats two days after MasterCraft terminated its relationship with Dockside.
In its first amended petition, Dockside alleges that after Walker resigned, two Dockside customers reported that Walker had approac hed the m , while still3 employed as Dockside ’ s General Manager, about opening a new boat dealership. Dockside claims that Walker told the customers he would take the MasterCraft

a ccount with him when he left Dockside. Dockside contends that before Walker

res igned, he had phone calls with Brown , often length y. Dockside also alleges that these calls were notable because they occurred right after Walker had a phone conversation with a MasterCraft representative. Dockside also contends that while still working as Dockside’s General Manager, Walker actively solicited two employees to leave Dockside and work at HTX. Dockside maintains that in late 2019 through early 2020, they were actively negotiating with MasterCraft, regarding rebates MasterCraft owed Dockside w hen Dockside received Mastercraft’s May 2020 notice terminating Dockside ’ s distributorship agreement

. During negotiations that involved the notice , Dockside claim ed that it was required to temporarily close because of the COVID

- 19 pandemic. Dockside alleged that the shutdown tied to the COVID

- 19 pandemic also “significantly impaired” the se negotiations. While closed for business during the pandemic, Dockside contends that it sought to delay the delivery of preordered MasterCraft boats given t he economic conditions that existed at that time . Dockside
asserts that during the pandemic and while Walker was acting as its General Manager that he either failed to communicate or intentionally did not delay the delivery of the boats, to his advantage

.4 Dockside also alleges that Walker, while employed at Dockside, allowed MasterCraft to repossess two non - MasterCraft b oats ( two Nautique boats). 1
Dockside pleaded, “ B y allowing MasterCraft to unlawfully take possession of these two boats, Walker created an allegation that Dockside breached its financing agreement with respect to the boats with a third

- party financer and the potential risk of losing an important source of financing based on incorrect information.” Dockside alleges that while its Ge neral Manager, Walker “ knowingly and intentionally injur [ ed ] his principal with whom he owed [a] strict duty of loyalty , among other fiduciary duties.” Dockside also alleges that “Brown was familiar with Walker ’ s position as General Manager, and therefore knew or should have known that Walker ’ s actions were wholly improper. As Brown is a member of HTX, his knowledge is imputed to HTX.”
II. PROCEDURAL HISTORY
In its Amended Petition, Dockside sued Walker, Brown, and HTX . As to Walker, Dockside alleged the following theories :

- Breach of Fiduciary Duty,

- Tortious Interference with Existing Contract,

- Theft of Property under the Theft Liability Act,

- Conversion , and

- Conspiracy As against Brown and HTX , Dockside alleged the following claims :

1 Nautique Boat Company was another boat manufacturer sold by Dockside

.5 - Knowing Participation in Breach of Fiduciary Duty,

- Tortious Interference with Existing Contract,

- Theft of Property under the Theft Liability Act,

- Conversion , and

- Conspiracy In response, Walker filed a First Amended Answer and Original Counterclaim , den ying all allegations. In the response, Walker alleges that he was a longtime employee of Dockside , and that he never had a non

- competition agreement with Dockside. Walker also claimed that in April 2020, Dockside instructed him to take titles for the two Nautique boat s to a bank and using the titles as collateral , get loans

. Yet, according to Walker’s response, the two Nautique boats already had third

- party liens on them , liens that MasterCraft had authorized

. Walker alleged that when he refused to par ticipate in “bank fraud , ” he told MasterCraft the boats in Dockside’s inventory were “double

- liened , ” so he resigned

. Dockside’s president denied th at the two Nautique boats were “double

- liened.” According to Walker, MasterCraft terminated its relationship with Dockside after discovering Dockside’s fraud

. After Dockside sued, Walker filed a counterclaim against Dockside for breach of contract, quantum meruit, unjust enrichment , and m oney h ad and r eceived

. Brown and HTX each filed Origina l Answer s and Request s for Disclosure s. Additionally, Walker, Brown, and HTX allege d the affirmative defenses of u nclean h ands,

e stoppel, laches, waiver, privilege, justification, effective consent, fail ure to6 mitigate, and Dockside ’ s own acts and omissions caused or contributed to its damages. Walker, Brown , and HTX jointly filed a No

- Evidence and Traditional Motion for Partial Summary Judgment. The exhibits filed to support the combined motion include d : 1) Excerpts from the June 23, 2021 Depositio n of Dockside Marine, LLC Corporate Representative Larry Paul Carlson Jr.; 2) March 19, 2020 Notice of Default Under MasterCraft Dealership Agreement; 3) Texas Secretary of State Website Printout; 4) April 17, 2020 Notice of Force Majeure Event and Respons e to Notice of Default Under MasterCraft Dealership Agreement; 5) May 1, 2020 Notice of Additional Defaults Under Dealership Agreement and Response to Request for Alternative Dispute Resolution; 6) May 20, 2020 Notice of Termination of MasterCraft Dealersh ip Agreement; 7) Affidavit of Matthew McDevitt with attachments; 8) Excerpts from the June 1, 2022 Deposition of Matthew McDevitt and selected Exhibits thereto; 9) Excerpts from the September 28, 2021 Deposition of Joshua Walker; 10) and Excerpts from the September 20, 2021 Deposition of Bryan Brown. Dockside responded to Appellees ’ motion for N o - E vidence and Tr aditional Partial S ummary Ju dgment. Dockside supported its response with the following evidence: 1) McDevitt ’s deposition; HTX ’s 2020 tax filing; A ffidavit of Dockside ’ s President and C hief Financial Officer, L

. P

. Carlson ; 2) Walker ’ s phone and text7 records ; 3) a screenshot of a text message Walker sent regarding “double floored” 2 inventory ; 4) emails between McDevitt and Wells Fargo regarding the two Nautique boats ; 5) and Manufacturer ’ s Statement of Origin (MSOs) 3 and first assignments for the two Nautique boats

. On November 22, 2022 , the trial court granted Walker, Brown, and HTX ’ s combined N o - E vidence and Traditional M otion for Partial S ummary J udgment. 4
Dockside filed a motion for new trial , which the trial court denied

. This appeal followed.
III. STANDARD OF REVIEW We review grants of summary judgment de novo

. Cantey Hanger, LLP v. Byrd , 467 S.W.3d 477, 481 (Tex. 2015). In our review we take as true all evidence favorable to the nonmovant , indulge every reasonable inference in favor of the
nonmovant , and resolve any doubts in the nonmovant ’ s favor. Valence Operating
Co. v. Dorsett , 1 64 S.W.3d 656, 661 (Tex. 2005). The defendants filed a combined traditional and no

- evidence summary judgment motion. See Tex. R. Civ. P. 166a(c),

2 According to Dockside’s Larry Paul Carlson Jr., double flooring is defined as a boat that is invoiced by two different floor plan companies at once or using the same boat twice as collateral. 3 An MSO is a Manufacturers Statement of Origin provided to a buyer of a watercraft. 4 In December 2022, Walker filed a Notice of Nonsuit without Prejudice and Motion for Entry of Final Judgment in which he nonsuited his counterclaims , and the trial court signed an Order dismissing all counterclaims.8 (i). When a party files a hybrid summary judgment motion on both no

- evidence and traditional grounds, we first consider the trial court ’ s no - evidence summary judgment. First United Pentecostal Church of Beaumont v. Parker , 514 S.W.3d 214, 219 (Tex. 2017) (citing Ford Motor Co. v. Ridgway , 135 S.W.3d 598, 600 (Tex. 2004)). If the nonmovant fails to meet its burden under the no

- evidence motion, we need not address issues related to the traditional summary judgment motion. Id. (

citing Merriman v. XTO Energy, Inc

. , 407 S.W.3d 244, 248 (Tex. 2013)). We review no

- evidence motions under the same legal sufficiency standard as a directed verdict. Painter v. Amerimex Drilling I, Ltd ., 561 S.W.3d 125, 130 (Tex. 2018). Under this standard, the nonmovant has the burden to produce more than a scintilla of evidence to support each challenged element of its claims. Id. If the nonmovant does not file a timely response to the no

- evidence motion for summary judgme nt, the trial court must grant the motion provided it meets the requirements of Rule 166a(i). See T ex. R. Civ. P. 166a(i) (stating that the trial court must grant a

no - evidence motion for summary judgment “ unless the respondent produces summary judgment ev idence raising a genuine issue of material fact[] ” ); Helena Chem. Co. v. Cox , 664 S.W.3d 66, 72 (Tex. 2023). A genuine issue of material fact exists if the evidence “ ‘ rises to a level that would enable reasonable and fair

- minded people to differ in their c onclusions. ’ ” Parker , 514 S.W.3d at 220 (quoting Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)). Evidence does not9 create an issue of material fact if it is “ ‘ so weak as to do no more than create a mere surmise or s uspicion ’ ” that th e fact exists. See id . ( c iting Kia Motors Corp. v. Ruiz , 432 S.W.3d 865, 875 (Tex. 2014)). To prevail on a traditional motion for summary judgment, a movant must establish that no genuine issue of material fact exists, and the movant is entitled to judgmen t as a matter of law. Tex. R. Civ. P. 166a(c); Point Energy Partners Permian, LLC v. MRC Permian Co. , 669 S.W.3d 796, 804 (Tex. 2023); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). Summary judgment is appropriate if the movant conclusively negates at least one essential element of the plaintiff ’ s claim. Painter , 561 S.W.3d at 130 ; Keller v. Legend Home Corp. , No. 09

- 17

- 0019 9

- CV, 2019 WL 2292331 , at * 5 (Tex. App.

— Beaumont May 30, 2019 , pet. denied) (mem. op.). When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion.
Star

- Telegram, Inc. v. Doe , 915 S.W.2d 471, 473 (Tex. 1995)

. We must affirm the summary jud gment if any of the movant ’ s theories has merit. See i d . We will now consider whether any of the grounds asserted by Dockside support the summary judgment. See id.10 IV. ANALYSIS: ISSUES ONE AND TWO On appeal, Dockside argues that the trial court erred in granting the Appellees ’
N o - E vidence and T raditional S ummary J udgment because genuine issues of material fact exist as to whether Dockside owned the two Nautique boats taken by MasterCraft in 2020 . In its A mended P etition, Dockside alleged that it is entitl ed to damages under the Texas Theft Liability Act and for c onversion from Walker, Brown and HTX for unlawful appropriation of the two Nautique boats in May 2020

. Since both issues one and two involve the same theft allegation , we will review them together. We begin our review with the no evidence summary judgment.
A. Texas Theft Liability Act The Texas Theft Liability Act provides that “ [a] person who commits theft is liable for the damages resulting from the theft. ” Tex. Civ. Prac. & Rem. Code Ann. § 134.003(a ). The Act defines theft as “ unlawfully appropriating property or unlawfully obtaining services [ , ] ” as described in certain Penal Code sections. Id

. § 134.002(2 )

. A person commits theft “ if he unlawfully appropr iates property with intent to deprive the owner of property. . . . Appropriation of property is unlawful if: (1) it is without the owner ’ s effect ive consent; . . . [or] the property is stolen and the actor appropriates the property knowing it was stolen by [someone else] . . .

. ” Tex. Penal Code Ann. § 31.03(a ), (b). The Theft Liability Act sets out the damages recoverable by the victim of theft. Tex. Civ. Prac. & Rem. Code Ann. § 134.005

.11 B. Conversion

“ Conversion is the wrongful assumption and exercise o f dominion and control over the personal property of another to the exclusion of, or inconsistent with, the

owner ’ s rights. ” Burns v. Rochon , 190 S.W.3d 263, 267

- 68 (Tex. App.

— H ouston [1st Dist.] 2006, no pet.) ( c iting Waisath v. Lack ’ s Stores, Inc ., 474 S.W.2d 444, 447 (Tex. 1971)) ; see also Ramin’ Corp. v. Wills , No. 09

- 14

- 00168

- CV, 2015 WL 6121602, at *11 (Tex. App.

— Beaumont Oct. 15, 2015, no pet.) (mem. op.) . To establish a claim for conversion of personal property, a plaintiff must prove: (1) the plaintiff owned or had possession of the property or was entitled to possession; (2) the defendant unlawfully and without the plaintiff ’ s authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff ’ s rights as an owner; (3) the plaintiff demanded return of the property; and (4) the defendant refused to return the property. Ramin’ Corp. , 2015 WL 6121602, at *11; Burns , 190 S.W.3d at 268. C. Dockside presented more than a scintilla of evidence creat ing a genuine issue of material fact on th e Theft Liability Act and conversion claims . Here , Dockside contends it sufficiently established the necessary e lement s for his conversion and Texas Theft Liability Act claims, which are tied to the two Nautique boats

. In August 2019, Dockside sold MasterCraft two Nautique boats for a combined price of $ 229, 0 00. The parties do not dispute that the Augst 2019 transaction occurred , or that in December 2019, MasterCraft sold the two Nautique12 boats back to Dockside after MasterC r aft had used the boats . In April 2020 and based on information it received from Walker , MasterCraft accused Dockside of not paying for the two Nautique boats by attempting to “ double

- floor[]” the two boats. MasterCraft also relied on the information it received from Walker when it decided
to “repossess” the two Nautique boats. 5 W hen MasterCraft took the two Nautique boats from Dockside , Dockside had the MSOs for the Nautique bo ats. Appellees contend that the fact that Dockside had the MSOs in its possession is not evidence of ownership of the two Nautique boats because Dockside had not paid MasterCraft all that it owed MasterCraft for the boats

. On April 14, 2020, MasterCraft claims it repossessed the two Nautique boats . O n April 16, 2020, Walker resigned as

5 Attached to its summary judgment motion was a screenshot of a text message from Walker in which Walker texted the following : If this shit double floored may not matter if 8 boats bought[.] Kinda interested to see[.] I see the nauti ques on wells floor plan. They emailed me a xl file to do a self floor check within five days[.] LP said don’t respond and make sure to lock the do ors and gate. We are missing 3

- 4 boats on there. The nautiques you own[.] So we have buyers orders showing sold to you in Dec and not paid off there[. ]13 Dockside’s General Manager

. Dockside alleges that in May 2020, Walker signed the
MSOs for the Nautique boats over to HTX. In a deposition attach ed to its summary judgment motion, Walker , agrees that his signature is on the MSOs, but then he denies that he signed them on the May 2020 transfer s
. That creates a material fact issue due to the i n inconsistency in his testimony. On appeal, Dockside argues that its production of the two Nautique boat
MSOs executed on a form prescribed by the Texas Department of Parks and Wi ldlife in compliance with the Water Safety Act, “create [s] a presumption of ownership in the party named on the title cer tificate

. ” Thus, Dockside contends this evidence raises an issue of material fact making summary judgment improper on its claim for conversion and its claim under the Theft Liability Act

. See Tex. Park s & Wild

. Code
Ann. § 31.045(b) (“ The ownership of a ne w vessel or a new outboard motor is evidenced by a manufacturer ’ s or an importer ’ s certificate executed on a form prescribed by the department

. ”) ; see also Comerica Acceptance Corp. v. Dal. Cent. Appraisal Dist ., 52 S.W.3d 495, 498 (Tex. App.

— Dallas 2001, pet. denied) ( noting that u nder Texas Park s and Wildlife Code 31.036, “ certificate s of title create a presumption of ownership in the party named on the title certificate [] ”)

. Appellees argue that evidence of title is not ownership

. Appellees point to the Certificate of Title Act for motor vehicles to show similar provisions that provide that possession of MSO s create s “a presumption of ownership” only , and transfer of14 title must be “effectuated by complying with the provisions outlined in the various
statutes relating to certificates of title.” See Tex. Transp. Code Ann. § 501.071

. Even so, the Water Safety Act covers watercraft MSOs , and “[ t ] here is no indi cation that the legislature intended the automobile C ertificate of Title Act to apply to boat and outboard motor transactions

. ” Pierce , 899 S.W. 2d at 370

. Unlike the Certificate of Title Act , the Water Safety Act does not require a certificate of title to be properly executed for title to pass. Compare Tex. Transp. Code Ann. § 501.07 1 , with Tex. Park s & Wild

. Code Ann. § 31.045(b)

. We are un persuaded that the Water Safety Act requires a properly executed certificate of title to be valid

. See Pierce , 899
S.W. 2d at 369

- 70

. Additionally, Appellee s provided evidence in the form of McDevitt ’ s deposition testimony that historically Dockside sold competitor boats to MasterCraft for a few months for “on the water training , ” then MasterCraft sold the boats back to Dockside. McDevitt testified that MasterCraft would “never officially title [the boats] , ” but Dockside would give them the MSOs, “which is a legal ownership document [

. ] ” McDevitt later s tat ed that a n MSO is not proof of ownership, “in its entirety

. I mean our position was we paid for the boats . W e had not been paid back for the boats . Yet, we still held the MSO ’ s
. S o consequently, we owned the boats.” In their motion for summary, Appellees also acknowledge that other differences like failing to execut e a n MSO does not render the sale void , even though a validly executed MSO may be some evidenc e of a boat’s ownership

. See15 Tex. Parks & Wild

. Code Ann. §§ 31.03 6

- .03 7 , 31.045 , and 31.127

. ( sec tions . .036 and . 0 45 provide that title is evidence of ownership; sec tion .037 requires title transferring ownership be filed within 20 days of sale; and sec tion

. 127 provides a penalty of a class C misdem eanor offense for the violation of any provision of this Chapter)

. Once Walker, Brown, and HTX filed their no

- evidence motion for summary judgment, the burden shifted to Dockside to present more than a scintilla of evidence defeating the no - evidence challe nge to the ownership element. See Tex. R. Civ. P. 166a(i); Painter , 561 S.W.3d at 130

. Here, the summary judgment evidence shows that Dockside had two Nautique MSOs in its possession in April 2020 when MasterCraft took the boats from the Dockside dealership , and MasterCraft was not listed as a lienholder or transferee on those MSO s
. Viewing the summary judgment evidence in the light most favorable to the nonmovant, we conclude a genuine issue of mat erial fact exists regarding the ownership of the two Nautique boats and that the details on and possession of the MSOs , along with the testimony presented from witnesses with knowledge of the standard practice used by the parties regarding the two boats, c onstitutes more than a scintilla of evidence of ownership and defeats the

no - evidence motion for summary judgment

. See Parker , 514 S.W.3d at 219

- 20

. As to the traditional motion for summary judgment, based on the record before us in this case, we also conclude t his same evidence creates a genuine issue of16 material fact that defeats Appellees’ traditional motion for summary judgment on Docksides claims for conversion and claims under the Theft Liability Act

. See Tex. R. Civ. P. 166a(c) (setting forth standard for traditional motion for summary judgment); Mann , 289 S.W.3d at 848. Therefore, the trial court erred in granting

s ummary judgment under both the traditional and no

- evidence standard on th ose claim s
. See Tex. R. Civ. P. 166a(c), (i). We sustain Dockside ’ s first and second issues.
V. ISSUE THREE
In its third issue, Dockside alleges that the trial court erred by granting Appellees’ N o - E vidence and T raditional S ummary J udgment on its breach of fiduciary duty claim because issues of material fact exist as to whether : (1) Walker breached his fiduciary duty as an employee of Dockside ; and (2) Brown and HTX knowingly participated in Walker ’ s breach of fiduciary duty

. On appeal, Dockside argues that Walker ’s actions while employed as Dockside ’s General Manager breached his duty because “ a fiduci ary relationship exists between an employee and an employer, an employee has a duty to act primarily for the benefit of his employer in matters connect ed with his employment

. ” Additionally, his actions transferred to HTX and Brown when Walker became employe d as G eneral M anager of HTX, his knowledge of breaches of fiduciary duties, “transfer[red] to HT X constituted17 knowing participation of HTX and Brown in the breaches of fiduciary duty by Walker.” A. Breach of Fiduciary Duty To prevail on a claim of breach of fiduciary duty, a plaintiff must prove: (1) the existence of a fiduciary duty, (2) breach of the duty, (3) causation, and (4) damages. Parker , 514 S.W.3d at 220. A n “ employee may not (1) appropriate the
company ’ s trade se crets; (2) solicit the employer ’ s customers while still working for the employer; (3) solicit the departure of other employees while still working for the employer; or (4) carry away confidential information, such as customer lists .” Diakiw v. Stites Mgmt. , L.L.C ., No. 14

- 22

- 00439

- CV, 2023 WL 8041403, at *9 (Tex. App.

— Houston [14th Dist.] Nov. 21, 2023, pet. filed). That said, u nder Texas law, an employee does not owe an absolute duty of loyalty to h is employer. See Johnson v. Brewer & Pritchard , P.C., 73 S .W.3d 193, 201 (Tex. 2002). But, w hen a fiduciary relationship exists between an employee and employer, the employee does have a duty to act primarily for the benefit of the employer in matters connected with her
agency. See id

. at 200 ; Wooters v. Unitech Int ’ l, Inc ., 513 S.W.3d 754, 76 2

- 6 3 (Tex. App.

— Houston [1st Dist.] 2017, pet. denied) . Absent a contrary agreement , an at

will employee may plan to compete with h is employer, may take active steps to do so while still employed, may secretly join with other employees in a plan to compete with the employer, and has no general duty to disclose such plans. See Johnson , 7318 S.W.3d at 20 1 ; see also Abetter Trucking Co. v. Arizpe , 113 S.W.3d 503, 510 (Tex. App.

— Houston [1st Dist.] 2003, no pet.). Walker, as an at

- will employee, was within his rights to plan, or to discuss with others, planning to open his own business to compete with his D ockside without notifying Dockside, his current employer. See Johnson , 73 S.W.3d at 201

. That said, the at

- will employee “ may not act for his future interests at the expense of his employer or engage in a course of conduct designed to hurt his employer.” M cCullough v. Scarborough , Medlin & Assocs., Inc. , 435 S.W.3d 871, 904 (Tex. App.

— Dallas 2014, pet. denied) (citation omitted)

. The evidence submitted with the response to the no evidence summary judgment fails to show that Walker appropriate d the company’s trade secrets or

carr ied away confidential information, such as customer lists , from Dockside. But, there was more than a scintilla of evidence that Walker may have solicit ed Dockside ’s customers while still working for Dockside and that he may have solicit ed the departure of other Dockside employees while still working for Dockside

. B. MasterCraft and Walker were entitled to a summary judgment on these claims because Dockside failed to creat e a genuine issue of material fact on Walker’s breach of fiduciary duty claim . In response to the traditional motion for summary judgment, Dockside alleges that Walker had a fiduciary duty as General Manager and that he breached his fiduciary duty by : (1) signing the two Nautique boat MSOs after he resigned ; (2)19 solicit ing customers to invest in a new dealership while employed as Dockside’s General M anager ; (3) destroy ing Dockside ’ s relationship with MasterCraft, including lying about the “double flooring” of inventory to destroy Dock side ’ s professional relationships, work ing to take away the MasterCraft contract from Dockside, and chasing away a Dockside sales representative over a personal dispute ; and (4) solicit ing Dockside employees to leave Dockside and work at HTX. Dockside ’ s Summary Judgment Response attached evidence of Walker ’ s alleged misconduct as General Manager in the form of affidavits by L

. P

. Carlson and Larry Carlson , excerpts from Walker ’ s deposition, a screen shot of the Walker Text Message to MasterCraft employee McDevitt , McDevitt ’ s email to Wells Fargo dat ed April 14, 2020 , and Notice of Business Record Filings

. As noted above, in reviewing a breach of fiduciary duty involving an employer and employee relationship, an “ employee may not (1) appropriate the
company ’ s trade secrets; (2) solicit the employer ’ s customers while still working for the employer; (3) solicit the departure of other employees while still working for the employer; or (4) carry away confidential information, such as customer lists .” Diakiw , 2023 WL 8041403, at *9

. In reviewing the summary judgment evidence, we note the following regarding Dockside’s allegation s against Walker. First, Dockside did not provide any e vidence that Walker appropriated customer list s or trade secrets while General Manager. In his deposition, L.P Carlson admitted that all20 Dockside ’s sales are public record, and Dockside still control le d Walker ’ s phone after he resigned as General Manager. Second, i n support of its allegation that Walker solicited employees, Dockside provided L.P. Carlson ’ s affidavit and phone records between the employees and Walker. This evidence did not include the alleged content of any conversations between Walker and his coworkers

. I t is undisputed that Walker was Dockside’s General Manager when these conversations occurred

. Third, r egarding soliciting customers for new a d ealership, Dockside provide d phone records showing Walker and Brown were in frequent communication

. Nevertheless , the bare phone records do not show what Walker and Brown discussed while Walker was Dockside’s General Manager. In his deposition, Dockside’s Larry Carlson agreed that Dockside’s phone records do not show what the parties to a call discussed on the phone. Appellees provided Brown ’ s deposition testimony , which shows that Brown was in frequent contact with Dockside a bout why Dockside had not turned over the proceeds from the sale of a boat that it sold on consignment to him. Dockside did turn the proceeds over to Brown in March 2020

. In its petition, Dockside admits that Brown’s share of the money from the sale of his boat should have been turned over to him after Dockside completed the sale, but Dockside accused Walker of hiding information about the sale of Brown’s boat and claimed that Walker did so for his benefit.21 Finally, Dockside contend s that Walker breached h is fiduciary duty by soliciting customers while still working as General Manager. Dockside provided excerpts from Walker ’ s deposition, in which Walker admits that he spoke to
customers and boat manufacturers about opening his own boat dealership while employed as Dockside’s General Manager

. Walker ’ s deposition creates a material fact issue as to whether Walker breached his fiduciary duty to Dockside by soliciting customers to open a new , competing dealership while employed as Dockside’s General M anager. See Diakiw , 2023 WL 8041403, at *9 (“ To be sure, once employees resign, they may actively compete with their former employer. The right to prepare to compete notwithstanding, if the nature of a party ’ s preparation to compete is significant, it may give rise to a cause of action for breach of fiduciary duty

. ”) (citation omitted)

. Viewing the summary judgment evidence in the light most favorable to the
nonmovant , we conclude there is a genuine issue of material fact on whether Walker breach ed his fiduciary duty to Dockside

. See Johnson , 73 S.W.3d at 201 ; Parker , 514 S.W.3d at 219

- 20

. The evidence creat ed a genuine issue of material fact on Dockside’s breach of fiduciary duty claim, and W alker failed to meet his burden to show he was entitled to a summary judgment on Dockside’s breach of fiduciary duty claim

. See Tex. R. Civ. P. 166a(i); Parker , 514 S.W.3d at 219.22 Therefore, w e sustain Dockside ’ s third issue as to Walker’s alleged b reach of
f

iduciary d uty

. C. Dockside failed to present more than a scintilla of summary judgment evidence supporting its knowing participation claims against Brown and HTX .

“ The elements of a knowing

- participation claim are: (1) the existence of a fiduciary duty owed by a third party to the plaintiff; (2) the defendant knew of the fiduciary relationship; and (3) the defendant was aware of his participation in the third party ’ s breach of its dut y. ” Straehla v. Al Glob. Servs., LLC ., 619 S.W.3d 795, 804 (Tex. App

— San Antonio 2020, pet

. denied) (citation omitted)

. “Knowing participation in breach of fiduciary duty is a derivative claim, requiring an underlying breach of fiduciary duty , in which the defendant knowingly participates. ” Id

. (citation omitted). Brown and HTX ’ s knowing participation is tied to Walker ’ s breach of fiduciary duty as Dockside’s employee. As to Brown and HTX, Dockside alleged that they : participated in Walker’s breach of his fiduciary duties to Dockside because: (a) a fiduciary relationship existed between Walker and Dockside; (b) Brown and HTX, by virtue of Brown ’ s knowledge, knew of the fiduciary relationship between Dockside and Walker; and (c) Bro wn and HTX, by virtue of Brown ’ s knowledge, were aware they were participating in the breach of that fiduciary relationship.
In support of their Motion for S ummary Judgment on this issue, HTX and
Brown poi nt to Brown ’ s deposition in wh ich Brown testified Dockside owed him money and that his conversations with Walker and other Dockside representatives23 related to money owed for the sale of his boat. Dockside admit s in its pleadings that it owed Brown this money

. App ellees also included d eposition testimony from Carlson, Walker , and McDevitt in their s ummary j udgment evidence. In Carlson ’ s deposition , he concede d that the phone records do not show the content of Walker ’ s and Brown ’ s conversation s
. Walker testified he did not talk with Brown about

s tarting his own dealership before he resigned at Dockside. McDevitt testifie d the decision to find another exclusive retailer for MasterCraft was “ likely ” not made until after MasterCraft terminated its relationship with Dockside, that Brown had previously approached MasterCraft regarding opening a dealership with MasterCraft “somewhere in the State[,]” and that Walker was not involved in any conversations between MasterCraft and Brown. McDevitt testified that Walker did not become involved with any conversations until after he left his employment at Dockside.
In its response to Appellees’ Motion for Summary Judgment, Dockside contends “Brown was an active participant in Walker’s breaches of fiduciary duty[,]” and cites to Carlson’s affidavi t and phone and text records between Walker and Brown. In his affidavit, Carlson states that Walker and Brown engaged in extensive phone or text conversations in Spring of 2020, sometimes right after Walker spoke to a MasterCraft representative. In his aff idavit, Carlson states that in Brown’s deposition, Brown testified he wanted to become an exclusive retailer of MasterCraft . However, in its summary judgment response, Dockside did not attach24 Brown’s deposition to support Carlson’s claim. Dockside also att ached a financing application for HTX’s formation, but the record does not include a signature line for Walker on the forms . T he application was also submitted after Walker resigned from Dockside

. Dockside had the burden to present more than a scintilla of evidence raising a genuine fact issue on the challenged elements of its claims against Brown and HTX to defeat Appellees’ No

- Evidence Motion for Summary Judgment

. See Tex. R. App. P. 166a(i). The appellate record does not show that Dockside did so

. Since Dockside failed to present more than a scintilla of evidence that would rais e a genuine issue of material fact on the challenged elements of the knowing participation claim against Brown and HTX , the trial court did not err in granting summary judgme nt on that claim. See id. Since our analysis of the No

- Evidence Motion for Summary Judgment issue resolves Dockside’s knowing participation claim against Brown and HTX , we need not address Appellees ’ arguments under their traditional summary judgment motion.
See Ford Motor Co. , 135 S.W.3d at 600 ; Merriman , 407 S.W.3d at 248 ( “[I] f the

non - movant fails to produce legally sufficient evidence to meet his burden as to the

no - evidence motion, there is no n eed to analyze whether the movant satisfied its burden under the traditional motion

. ”)

. We overrule this issue as to Brown and HTX.25 VI. ANALYSIS: ISSUE FOUR
In its fourth issue on appeal, Dockside contends that the trial court erred by granting summary judgment because genuine issues of material fact existed as to whether Walker, Brown and HTX willfully or intentionally interfered with Dockside ’ s MasterCraft contract. On appeal, Dockside also argues the trial cou rt erred in granting Appellees’ summary judgment because issues of material fact exist for its claim of tortious interference against Walker. Dockside contends that the evidence shows that Walker helped MasterCraft steal the two Nautique boats before
h e re signed and transfer the title to the two boats to HTX “under the auspices of his title as ‘General Manager.’” According to Dockside, Walker intentionally destroyed Dockside’s relationship with MasterCraft as a result of Walker’s text messages and emails to MasterCraft, “hiding” pertinent information about MasterCraft from Dockside’s owners, and alleging that Dockside was “double flooring” the two Nautique boats. Dockside contends that because of Walker’s actions and his allegations of “double flooring” of t he two Nautique boats, MasterCraft terminated its retail relationship with Dockside and entered an exclusive relationship with HTX, causing damages in lost sales. Dockside also alleges that Walker solicited Dockside customers to start a new dealership, hel d discussions, and solicited Dockside employees to leave Dockside and go to work with a new competing boat dealership. As for Brown and HTX, Dockside alleges that Walker , while employed by26 Dockside, communicated with Brown often by either telephone or text messages about starting a new competing dealership, and that Walker joined a financial application with Brown and HTX , while still “act[ing] and sign[ing] documents” as Dockside’s General Manager after he resigned.
A. Tortious Interference with Existing Contract

“ A party to a contract has a cause of action for tortious interference against any third person who wrongly induces another contracting party to breach the
contract. ” Swank v. Sverdlin , 121 S.W.3d 785, 799 (Tex. App.

— Houston [1st Dist.] 2003, pet. denied); see Holloway v. Skinner , 898 S.W.2d 793, 794

- 95 (Tex. 1995). The elements of tortious interference with an existing contract are (1) there exists an existing contract subject to inter ference, (2) a willful and intentional act of interference with the contract, (3) that proximately caused the plaintiff ’ s injury, and (4) caused actual damages or loss. Prudential Ins. Co. of Am. v. Fin. Rev. Servs.,
Inc ., 29 S.W.3d 74, 77 (Tex. 2000). A d efendant may obtain summary judgment dismissing a claim of tortious interference with an existing contract by disproving one or more elements of the claim as a matter of law. Powell Indus., Inc. v. Allen , 985 S.W.2d 455, 456 (Tex. 1998). At issue is wheth er this constitutes some evidence of A ppellees ’ “ willful and intentional act of interference. ” Texas courts have held that to satisfy this element of the cause of action for tortious interference, a party must be more than a willing27 participant; it must kn owingly induce one of the contracting parties to breach its obligations. See Browning

- Ferris, Inc. v. Reyna , 865 S.W.2d 925, 927 (Tex. 1993); John Paul Mitchell Sys. v. Randalls Food Mkts ., 17 S.W.3d 721, 730 (Tex. App.

— Austin 2000, pet. denied). To establ ish an actionable “ willful and intentional act, ” the evidence must show the defendant ’ s influence and “ knowing inducement ” of the contract obligor ’ s wrongful action. Browning

- Ferris , 865 S.W.2d at 927

. B . As a Dockside employee, Walker cannot be liable for tortious interference with the Dockside and MasterCraft contract. This Court has previously explained that generally speaking an employee of a contracting party cannot tortiously interfere with his employer’s contract. Brown
v. CB& I, Inc ., No. 09

- 12

- 00521

- CV, 2014 WL 172413 , at * 8 (Tex. App.

— Beaumont Jan. 16, 2014, no pet.) (mem. op.) (citations omitted). In Brown , we stated as follows , The nature of a tortious interference claim is such that “ a person must be a stranger to a cont ract to tortiously interfere with it[.] ” Generally, a party to a contract cannot tortiously interfere with its own contract

. By extension, “a contracting party’s agent or employee acting in the party’s interests cannot interfere with the party’s contract.” Id .; see also Cleveland Reg ’ l Med. Ctr., L.P. v. Celtic Props., L.C ., 323 S.W.3d 322, 346 (Tex. App.

— Beaumont 2010, pet. denied) (citations omitted)

. Here, i t is undisputed that Walker w as Dockside ’s employee when Dockside alleges that Walker interfered with Dockside ’s and Mastercraft ’s agreement

. Walker , as an employee and general manager of Dockside , wa s not a stranger to the28 cont r act and he cannot be liable for tortious inference in Dockside ’ s contract with MasterCraft. See Brown , 2014 WL 172413 , at * 8 ; C leveland Reg ’ l Med. Ctr., L.P. , 323 S.W.3d at 346 ; see also Hussong v. Schwan ’ s Sales Enters. , 896 S.W.2d 320, 327 (Tex. App.

— Houston [1st Dist.] 1995, no writ ) (“ [ A ] n agent cannot be personally liable for tortious interference with its principal ’ s contract s
. ”). C. Dockside has failed to present more than a scintilla of evidence showing a genuine issue of material fact exists as to its tortious interference claim against Brown and HTX . As to Brown and HTX ’ s alleged interference, Dockside has also failed to demonstrate that ther e is a genuine issue of material fact regarding a “willful and intentional act of interference” with Dockside ’ s contract

. See Prudential , 29 S.W.3d
at 77 (outlining requisite elements o f tortious interference claim, including “willful and intentional act of interference”)

. “ Texas courts have held that to satisfy this element of the cause of action for tortious interference, a party must be more than a willing participant; it must knowing ly induce one of the contracting parties to breach its obligations. ” John Paul Mitchell Sys. , 17 S.W.3d at 730 (citing Browning

- Ferris, 865 S.W.2d at 927 ) . To establish an actionable “ willful and intentional act, ” the evidence must show the defendant ’ s influence and “ knowing inducement ” of the contract obligor ’ s wrongful action. Browning

- Ferris , 865 S.W.2d at 927

. As we ha v e already explained, Dockside ’ s phone and text message records between Brown and Walker do no t show what Walker and Brown discussed. In fact, Brown testified29 in his deposition that the only conversations he had were with Dockside’s Walker, Jeff Kaiser, and Cheryl, which concerned his attempts to have the proceeds from the sale of his boat paid ove r to his bank

— no conversations about the MasterCraft contract with Dockside at issue here. HTX’s f inancing documents , which Dockside attached to its response, do not show that Walker is listed as an applicant . Further, the application w as filed after Walker resigned from Dockside

. We conclude that t he trial court did not err in finding there were no material issues of fact as to Dockside ’ s tortious interference claim against Walker, Brown and HTX

. See Tex. R. Civ. P. 166 a (c), (i ). We ove rrule Dockside ’ s fourth issue.
W e need not address Appellees ’ arguments under their traditional summary judgment motion. See Ford Motor Co ., 135 S.W.3d at 600 ; Merriman , 407 S.W.3d
at 248

. VII. ISSUE FIVE
In its final issue, Dockside argues the trial court erred by granting summary judgment as to Walker , Brown and HTX because a material fact issue exists as t o Dockside ’ s claim of civil conspiracy. Mirroring the same allegations against Dockside, Brown and HTX as alleged in issue four, Dockside contend s that “Appellees ’ traditional motion for summary judgment with respect to conspiracy has the look and feel of a trial on the factual merits rather than a motion for summary judgment [,] and [r]ather than focusing on a claimed absence of a gen uine issue of30 material fact, Appelle e s argue the facts as they proffered them without paying any heed to the facts Dockside tendered to the Court.” A. Civil Conspiracy A plaintiff must prove the following requisite elements to establish a civil conspiracy claim : (1) a combination of two or more people; (2) to accomplish an unlawful purpose or a lawful purpose by unlawful means; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) the plaintiff suffered injury as a proximate result of the wrongful act. Ins. Co. of N. Am. v. Morris , 981 S.W.2d 667, 675 (Tex. 1998); Walker v. Hartman , 516 S.W.3d 71, 81 (Tex. App.

— Beaumont 2017, pet. denied)

. Ci vil conspiracy is
not an independent tort, but exists so that up on proving a conspiracy , a plaintiff may obtain a remedy against any co

- conspirators involved in the underlying tort

. Hartman v. Walker , No. 09

- 21

- 00084

- CV, 2023 WL 5282443, at *13 n.50 (Tex. App.

— Beaumont Aug. 17, 2023, no pet.) (mem. op.) (citing Agar Corp., In c
. v. Electro Circuits Int’l, LLC , 580 S.W.3d 136, 141 (Tex. 2019)). Dockside’s First Amended Petition alleges the same actions by Walker, Brown and HTX for tortious interference to claim they are liable in an action f or civil conspiracy. We need not list them again. Our review shows that Dockside has failed to meet its burden to raise a genuine issue of material fact as to the un derlying tortious interference claim

. See Painter , 561 S.W.3d at 130 ; s ee also Tex. R. Civ. P.31 166 a(i). Having failed to establish a tortious interference claim, there can be no civil conspiracy to commit tortious interference

. See Walker at 81

. B. Dockside failed to present more than a scintilla of evidence to show the requisite element of a meeting of the minds. In its First Supplemental Petition, Dockside alleged that the three defendants “committed an unlawful overt act to further the object or course of action, which was to take away the business of Dockside Marine from Walker’s employer .”
A ssuming that there was an underlying tort to support a claim of civil conspiracy, a meeting of the minds is a requisite element of a civil conspiracy. See Walker , 516 S.W.3d at 81

. Dockside failed to show a material fact issue as to whether Appellees had a meeting of the minds to interfere with Dockside ’ s contract with MasterCraft.
As noted above, Doc kside ’ s phone and text records do not evidence there was

a conspiracy between Appellants to interfere with the contract that Dockside had with Mastercraft

— that is, evidence that a meeting of the minds existed between Appellants on a course of action consis ting of one or more overt acts since the evidence that Dockside presented do es not show what Walker and Brown actually discussed . The financial records that Dockside provided to support its response also do not show that Walker was listed as an applicant when HTX applied to become a MasterCraft dealer, and the records that Dockside produced also show that Walker left Dockside before HTX applied with MasterCraft and sought to become one of its authorized dealer s
. For these reasons, we hold that the evidence Dockside presented32 with its response fails to demonstrate that a genuine issue of material fact exist s on its civil conspiracy claim

. See Painter , 561 S.W.3d at 130 ; see also Tex. R. Civ. P. 166a(i). Because we conclude the trial co urt properly granted the Appellees no

evidence motion, w e need not address the arguments the appellant raises claiming the trial court erred in granting Appellants’ traditional motion for summary judgment on Dockside’s claim for civil conspiracy. See For d Motor Co ., 135 S.W.3d at 600 ; Merriman , 407 S.W.3d at 248

. VIII. CONCLUSION Reviewing the summary judgment evidence presented by both sides, we conclude that A ppellees are not entitled to prevail as to each of Dockside’s claims

. See Tex. Workers ’ Comp. Comm ’ n v. Patient Advocates , 136 S.W.3d 643, 648 (Tex. 2004)

. With respect to Dockside’s claims for theft and conversion, w e conclude the trial court err ed in granting Walker, Brown’s and HTX’s motions for summary judgment. For that reason, we susta in Docksides first two issues. W e sustain Dockside’s third issue in part, to the extent that Dockside argues the trial court erred in granting Dockside’s breach of fiduciary duty claims against Walker

. That said,

w e overrule Dockside’s third issue to the e xtent that Dockside argues that the evidence shows that Walker knowingly participated in his breach of a fiduciary duty to Dockside. Dockside’s fourth and fifth issues

— which argue the trial court erred in33 granting summary judgment on Dockside’s tortious in terference and civil conspiracy claims against Walker, Brown and HTX

— are overruled because Dockside presented no evidence to support these claims. The trial court’s judgment is affirm ed in part , reverse d in part , and remand ed to the trial court for further proceedings consistent with the Court’s opinion. AFFIRMED IN PART, REVERSED AND REMANDED IN PART

.

JAY WRIGHT Justice Submitted on April 2 5 , 2024 Opinion Delivered June 27, 2024 Before Horton , Johnson and Wright , JJ.