### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00513
- CV

Patrick Towne and Veritas Financial Series E3d LLC , Appellant s

v. Devin Black, Andrei Duta, and 823 Hwy 71 W LLC , Appellee s

FROM THE 423RD DISTRICT COURT OF BASTROP COUNTY NO. 42 3-6737 , THE HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N This appeal arose from a failed real estate development partnership between appellant Patrick T owne and appel lees Devi n Black and Andrei Duta

. Towne , B la ck, and Duta formed 823 HWY 71 W LLC (the “Company” ) in furt herance of purchasing undeveloped land

. After the Company closed on its purchase of that rea l estate , the parties ’ relation ship soured , with the parti es disagreeing whether Towne had a membersh ip intere st in the Compan y. Towne and Veritas Financial S e rvices E3 d LLC (E3D) filed suit, contending Towne was an initial member under the Company ’ s operating agreement , but Black and Duta responded th at Towne was never a member because he failed to make a required c apital contribution . The trial court agreed with Black and D uta, concl uding that Towne was not, and had never been, a member of the Company; denying Towne’s motion for partial summa ry judgment ; granting appel lee s’ motion s for partial summary judgment ; and entering a final judgment order that Towne and E3D take nothing on their claims.2 Towne and E3D now appeal, arguing that the trial court erred in reaching those conclusions, that the court’s decisions on the summary judgment motions are pred i cat ed on those erroneous conclusions , and t hat final ju dgmen t could not have been entered because there were still un adjudicated claims. For the following reasons, we affirm the trial court ’s final judgment.

BAC KGROUND On September 27, 201 7, Lost Pine s Vent ures Series LLC (“ Los t Pines ”) 1

execu ted a contra ct fo r the purchase of undeveloped acreag e near Highway 71 West in Bastrop, Texas (the “Property” ). Towne and Duta signed the purchase contract as the managing me mbers of Lost Pines

. T he Company was then form ed on February 12, 2018, and Town e and Duta, on beh alf of Lost Pines, ex ecuted an assignment of the purch ase contract from Lost Pines to the Company on February 19, 2019. On March 1, 2018, Duta, Towne, and Black signed the original operating
agree m ent f or the Company (the “ Agreement ”)

. R ele vant to this ap peal, th e Agreement included the following provision r egarding the initial capital contributio ns of the Members:

Section 3.1 Initial Capital Contributions of the Members
(a) Each Member shall cont ribute cash, other property, or services to the Company in the amoun t set forth as the Initial Capital Contributio n of such Member on Schedule 1 attached hereto and hereby made a part hereof. Such cash or other property shall be the Initial Capital Contri bution of each such Member and each such Member agrees to ma ke its I nitial Capita l Contribution.
(b) U pon making the Initial Capital Contribution each Member shall receive its Membership Interest and its initial Sharing Ratio as set forth in Schedule 1

.

1 Towne and E3D aver in their pleadings that E3D was doing business as Lost Pines

.3 T he enti ret y of Schedule 1 to the Agreement is as follows:
S chedule 1 Investor Sc hedule [] Names, Addresses, Initi al Capital Contributions and Shar ing Ratios of the Members

Future investors will own 100% equity in th e company. Profits will be split with investors receiving 10% ann ual interest preferred and after their capital has been returned they will receive 60% of all remaining profi t s and t he remaining 40% profits will be split according [to ] the Sc hedule 3 , inf ra.

All Members have been informe d of and expect additional members to join and make their own respective capital contributions in the upcoming days and weeks with $400,000 – $600,000 additional cash raised.
Towne and Duta both agree to execute an assignm ent from Lost Pines to the Compan y of the Property in exchange for (1) $4,000 on the day of assignment, March 1, 2018 and (2) a $100,000 deposit scheduled to b e made to Towne/ E 3D at cl osing, or immediately upon receipt of those funds from inve stors, for se rvices to be rendered. The remai ning cash on hand in the Company will be hel [d] in reserve for taxes and expenses as the priorit y with the remaining to be spent to cover Town e /E3D ser vices. If cash on hand is exhausted, E3D’s expense s will b e paid before profit disbursement.
Duta will p ersonally invest at least $15,000 as an investor and will ensure the Property closes with a short

- term, interest free loan to the Company whil e investo r money comes in.

The following is the entire ty of Schedule 3 , as refer enced i n Schedule 1 : Names and Addresses of Members Initial Capital Contributions Sharing Ratios

Inve s tors ~ $600,000 100%
TOTALS 100%4 Schedule 3 Developer Sche dule Schedule 2 [sic] Names, Addresses, Initial Capital Contributions and Sharing Ratios of the Members

Names and Addresses o f Members Initial Capital Contributions Sharing Ratios

And rei Duta [addr ess] Cas h and substantial developer/real estate services 48.5%

Patrick Towne [address] Service substantial engineering services 48.5%
Devin Black [address] Legal services 3%
TOTA L S 100% The Agreement also def ine s “ Man ager, ” “ Member ,” and “ Membership Interes t” as

“Manager” means any Perso n that i s elected to act as a manager of the Company as provided herein. “ Managers ” means all such Persons collectively in their capacity as M anagers o f the Company.

“Member ” m eans t he Persons listed a s members on Schedule 1 of this Agreement or any succe ssor or successors to all or part of any such Member’s Membership Interest, or any Person admitted as an additional member to the Com pany in a c cordance with this Agreement and [ Ti tle 3 of the Texas Busi ness Organizat ions Cod e] , each in the capacity as a me mber of the Company.

“ Members ” means all such Persons collectively in their capacity as members of the Company.

. . . . “Membership Interes t” means a l l of the rights and obligations of a Member in re spect of such Member’s ownership interest in the Company, including but not limited to the right to r eceive distributions and any obligation to make Capital Contributions under this Agreement.5 Se c tion 4.1 a ppointed Duta, Towne, and Black as the initial bo ard of Man ager s ( the “ Board ”), while also express ly st at ing that “Managers need not be Members

. ” Finally, under Section 11. 19 (titled “Exhibits and Schedules”), the Agreement states that “the und e rsigned, b eing the initi al Managers and all of the Members of the Com pany have caused this Agreement to be duly adopted by the Company effective as of the date first above written.” The signatures of Duta, Towne, and Black are then listed on separate lin e s under th e tit les of bo th

“ Managers ” a nd “ Mem bers. ” On March 6, 2018, the Com pany closed on t he Property

. Black and Duta later testified that it was expected at the time that Towne would make a mon etary capital contribution
in the C o mpany to become a Me m ber

. The parties do no t dispute that T owne di d not make the monetary capital contribution

. The day after closing, Black sent a letter to Tow ne, informing him that he had been removed as a Manager and Member of the Company

. 2
On M arch 8, the Agreement was amended , a dding the name s of sp ecific
M embers, their initial ca pital contributions, and their preferred sharing ratios (the “ Amended Ag reement ” )

. The new Schedule 1 did not list Towne as one of the members

. Members listed in the Amended Agreement therea f ter held a meet ing and v oted to remove Towne as a Manager of th e Company on March 12, 2018

. Towne and E3 D filed suit against Black, Duta , a nd the Company the following
year . As of the live pleadings a t the time of the summary jud gment motions, Appellants a sserted

c auses of actio n for f raud, fraudulent inducement, sta tutory fraud , breach of contract, breach of

2 Black also informed Towne that t h e Company ’ s arrangement with E3D for engineering services had been term inated

.6 fiduciary duty, shareholder oppression, theft , conversion, tortious interference with existin g contract, and conspiracy. Towne moved for partial sum m ary judgm e nt on the issu e of hi s membership in the Company, con tending that the Agreement was unambiguous , that he was and is still a member of the Company , that the Amended Agreement is void, and th at the March 12 meeting

was inv alid

. The trial cour t he l d a heari n g on July 14, 2021 , a nd th ereafter entered an order t he next day c oncluding that the Agreement is unambiguous , but then also co ncluding that the summary judgment record establishes as a matter of law that Towne is not , and never was, a member of the C o mpan y ; that the A mende d Agreement is valid and enforce able ; and that the
Mar ch 12 meeting was valid and effective.
Duta and the Company then moved for partial summary judgment , seeking dismissal of Appellants ’ claims , and Black f iled a separate summ a ry judgmen t cro ss - motion also seeking dismissal

. The t rial court ent ered an order o n August 16, 2021, granting both Duta and the Compan y ’s motion a nd Black ’s cross

- motion. The trial court entered final judgment on September 10, 2021 , ordering Appellants take nothi ng o n their claims and stating as fol lows:

“ A ll re lief not granted herein is denied. This is a final judgment and is appealable. ” 3 Appellants then filed the present appeal.

STANDARD OF R EVIEW A summary judgme nt decision b y the trial court i s reviewed de n ovo. Tex as Mun. Power Agency v. Pub lic U til. Comm ’ n of Tex. , 253 S.W.3d 184, 192 (Tex. 2007). Summary

3 Conte mporaneousl y with seeking final judgment, Duta and the Company filed a notice of nonsuit without prejudice of their counterclaim

. Appellants sought to treat the nonsuit as with pre j udice, but the trial court denied that request

.7 judgment is prope r when “ there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of la w . ” Tex. R. C i v. P. 166a ( c); see also Mangham v . YMCA

o f Austin, Tex.

- Hays C mties. , 408 S.W.3d 923, 926 (Tex. App.

— Austin 2013, no pet.)

. “Beca use the trial court ’ s order does not specify the grounds for its summary judgment, we must affirm the summary j u dgment if any of the theories presented to the trial court and preserved for appellate review are meritorious.” Provident Life & Acc. Ins. Co. v. K nott , 128 S.W.3d 2 11, 216 (Tex. 2003).

F INALIT Y OF JUDGMENT Appellants argue that the trial court ’ s judgm e nt must be reve rsed because they still have some un adjudica ted claims

. They argue tha t the summary judgment mo tions did not address their breach of contract, breach of fiduciary duty, torti ous interference with contract , and conspiracy causes of action. Appellat e court s only have jurisdiction over appeals from final judgments and certain statutorily recognized in terlocutory orders. See , e.g. , B.C. v. Rhodes , 116 S.W.3d 878, 881 (Tex. App.

— Austin 2003, no pet. )

. Reviewing t he record on appeal, the trial court entered a final judgment directing Towne and E3D to take nothing on their claims and expressl y stat ing “ A ll relief not granted herein is denied. This is a final judgment and is appealable. ” S e e In re Elizondo , 544 S.W.3d 824, 825

– 26 (Tex. 2018) (o r ig. proceeding) (explaining order is final if includes finality phrase or dis po ses of all claims be fore t rial c ourt) (citing Lehmann v. Har

- Con Corp. , 39 S.W.3d 191, 205

– 06 (Tex. 2001) ) . Moreover, all of the

c auses of action referenced by Appellants were raised by A ppel lees in their summary judgment moti ons below and the trial court granted those motion s in whole

. B ecause the judgment entered8 by the trial court in this case disposes of all the parties and issues, w e overrule this issue and address the me r its of the case

.
S UMMARY JUDGMENT CHALLENGES In their other three issues on appeal, Appellants argue th at ( 1) t he trial court erroneously concluded that Tow ne was not a member of the Company, (2) the trial court

erro neously conclu ded that the Amended A g r eement was valid and effective, and (3) Appellants ’

c a uses of action should have survived summary judgment. We add ress each in turn

.
Towne ’ s Membership in the Company In his first issue, Towne challenges the trial court ’ s con clusion that there is no
g e n uine issue of mate rial fact that he is not a Member of the C o mpany. Although the parties agree that the terms of the Agreement are unambiguous, they disagree about how to interpret the relev ant contra c tual pro visions. Towne argu es the trial court shoul d have determined th at he was

a m ember because the Agreement “unambiguously designated” him a member. Appel lees argue that, under the unambiguous terms of the Original Agr eement, Towne never becam e a member be cause he did not make the required capital con t ribution. Whether a contract is ambiguous is not determined based on whet her the parties disagree a bout its interpretation. See URI, Inc. v. Kleberg C o unty , 543 S.W.3d 75 5, 763 (Tex. 2018). 4 “Bo th the presen ce of ambiguity and interpretation of an unamb i guous contract are questions of law we review de novo using well

- settled co ntract

- construction princ iples.” I d. We interpret contract ual language according to its “plain , ordinary, and generally accepted mea ning” unless otherwise directed by the contrac t itself, Heritage R es ., Inc. v. NationsBank , 939 S.W.2d 118 ,
4 The Agr eement expressl y provides that it is “ go verned exclusively by the laws of the State of Texas. ”9 121 (Tex. 1996), and “our primary objective is to ascertain and give effect to the parties ’ intent
as expresse d” in the contract, URI , 543 S.W.3d at 763

. “To that end, we consider the entire

wr i ting, harmonizing a nd giving effect to all the contract provisions so that none will be rendered meaningless.” Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc ., 473 S.W.3d 296, 305 (Tex. 20 15). “No sin gle p ro vision taken alone is given controlling effec t; rather, eac h must be considered in the context of the [con tract] as a whole.” I d. If the contract ’ s language can be given a certain or definite meaning, the cont ract is not a mbig uous. I d. “But if t he co ntract is subject to two or more reasonab l e interpretations af

ter appl ying the pertinent construction princip les, the contract is ambiguous, creating a fact issue regarding the parties ’ intent.” Id. “Summary jud gment is not the proper v ehi cle for

re solvi ng disputes about an amb iguous contract.” Id. Reviewing its p lain language , the Agreement unambiguously provides that the initial member ship in the Company is based on maki ng a required capital contribution

. Th e Agreement defines “ M em ber ” as inclu ding the “ Persons listed as members on Schedul e 1. ” 5
Section 3.1 of the Agreement similarly provides that the Members were required to “contribute cash, other property, or services . . . in the amount s et forth as the Initial Capital Contribu tion of such Membe r on Schedule 1 ” ; that “each such Member a grees to make its Init ial Capital Contribution ” ; and th at the Member receives their Membership Interest “[u]pon making the Initial Capital Contribution. ” S chedul e 1 then plainly states that “ Futu re investors wil l own 100% equity in the c ompany ” and only l ists the following Mem bers:

5 T he “ Members ” definition includes also certain successor and later

- admitted Members, b ut none of the parties argue that Towne ’ s basis for membership was eith er of those cat egories.10 Accordin gly, under the certain and definite term s of th e Agre ement , a person only became a Member of, and a c quires a Membership In terest in, the Company after they ma ke a capital contribution. S ee Plains Expl oration , 473 S.W.3d at 305. Furthermore , the plain an d ordinary language of Schedule 1 expres sly contempla tes t hat the initial Me mbers would make monetary capital contributions. See Heritage
Resources , 939 S.W.2d at 121 ; see also Investor , Black ’ s Law Dictionary (11th ed. 2019) (“ Broadly, a person who spends money with an expectation of earning a profi t. ” ). 6 Tow ne does not dispute that he never made an y monetary capital contrib ution to the Company , either prior to closing on the Proper ty on M arch 6, 2018 , or at any other time , and therefore Towne never beca me a Member under t he unambiguous terms of the Agree ment de scribed above

. Towne instead argues t h at he is a Member because S chedule 3 lists Towne as a

“ Member ” and Schedule 1 incorp orates Schedule 3

. The entirety of Schedule 1 ’ s reference to Schedule 3 is as follows:

F

uture investors will ow n 100% equity in the company. Profi ts will be split with in v estors receiving 10% annual interest preferred and after their capital has been returned they will receive 60% of all remaining profits and the remaining 40% profits will be split according [to] t he Sc hedule 3, infra

.

6 The Agreement does not define “Investor,” and we therefore consider its plain and ordinary meaning. See Plains Expl. & Prod. Co. v. Torch Energy Advisors In c. , 473 S.W.3d 296 , 305 (Tex. 2015). Names and Addresses of Mem bers Initial Capital Contributions Sharing Ratios

Investors ~$600,000 100%
TOTALS 100%11 (emphas e s ad ded). Contrary to Tow ne ’ s suggestion, this clause cl early distinguishe s between investors , who are expressly granted “100% equity ” in the Company and are listed as the initial Members under Schedule 1, a nd the persons li s ted under Schedule 3, who only hav e a ri ght to specific fun d s after the investors recei ve their distributions

. Moreover, a harmonious r eading of Schedule 1 and Schedule 3 demonstrates that the sharing ratios r eferenced under Schedule 3
p lainly direct how the “remaining 40% profits will be split ” amongst the perso n s listed in Schedule 3. S e e Plains Expl oration , 473 S.W.3d at 305

. Towne also points to Schedule 3 listing his “init ial capital contribution” as “substantial engineer services ” as de monstratin g that he was a Member through a no n - mone tary capital contri b ution of service s. However, we cannot read that language in isolation but must consider it in the context of the Agreement as a whole. See id. Both Section 3.1 and the “Member s ” definition exp ress ly limit the members to those l isted in Schedule 1

. Sch e dule 1 then is titled “Invest or Schedule [] ” and specifies that the ini tial M emb ers are the “investors” who make the specified monetary capital co ntributions. Schedule 3, in cont rast, is labeled the “Developer Schedule ” and is not refer enced anywhere in t h e Agreement except for a sing le instance in Schedule 1; an instance, as previously d i s cussed, expressly distinguished from the investors who are Members. Th e plain meaning of th e Schedules as a whole therefore distinguish es between th e investors (who are the initial Members of the Co mpany) and the d evelopers (who receive a portion of a spec ial, separate payment after the investors ’ ca pital has been returned ). See id

. We must consider the Agre ement a s written because the par ties could have draft ed Schedu l e 1 to expressly list Town e, Duta, and Black as Members but chose not to in favor of the language actually included

. See Great Am. Ins. Co. v. Primo , 512 S.W.3d 890, 893 (Tex. 2017) ( “ A contract ’ s p lain language controls, n ot ‘ what one side or the other a lleges they12 intended to s ay b ut did not. ’ ” (quoting Gilbert Tex. Const r ., L.P. v. Underwriters at Lloyd ’ s London , 327 S.W.3d 118, 126 (Tex. 2010) ) ) ; see also Maxey v. Maxey , 617 S.W.3d 207, 223 (Tex. App.

— Houston [1st Dist. ] 2 020, no pet.) ( “ Courts m a y no t and will not rewrite contr ac ts to insert provisions that the parties could have included, but did not, and that are not essential to the construction of the language of the contract. ” ). T he Agreeme nt instead unambiguously tr eats d evelopers differe ntly t h an i nvestors, and according ly , Towne’s inclusion as o ne of the Schedule 3 developers has no bearing on any Membership Interest he would have been entitled
to as an investor under Schedule 1.
Towne also argues that his right t o receive a portion of “the r emainin g 40% profits” as a d ev e loper under Schedule 3 constitutes a profit interest in the Company and therefore establishes he is a partial owner, citing Vines v. Durrett , No. 12

- 14

- 00258

- CV,
2015 W L 9591525, at *5 (Tex. A pp.

— Tyler Dec. 30, 2015, pet. de n ied ) (mem. op.) . But Towne mi s reads Vines . There, the contr act was ambiguous about whether the purchaser bought a 3% ownership interest or a 3% net profits interest. Id. T hat fact issue wa s submitted to the jury, and the jury ultimately determined tha t the s al e was of an ownership i nterest. Id. Vines thus does not hold that a pro fit interest and ownership interest are the same

. Rather, the opinion does the exact opposite by recognizing th e co ntract wa s ambiguous because the language could be interpr e ted

as e ither a profit interest or an ownership interest

. Id. B ut there is no such amb iguity here. The right any S chedule 3 deve l oper may have is separate and distinct from the Membership Interest held by an investo r pursuant to Section 3.1 and Schedul e 1. 7

7 Town e also points to Section 4 .6 of the Agree ment, whic h confers voting rights and granted him exclusive control over engineering decisions, as being the type of voting rights that are part of a membership interest

. But Section 4.6 governs the powers and voting of the managers who com prise the Board that mana ges and controls the affairs of the Company. Both13 Fina ll y, Towne argues that he is an initial Member because he signed the Agre ement under Section 11.19 as both a Manager and Member of the C o mpany. Towne is correct tha t Towne , Duta, and Black all signed the Agreement twice, once as “ Managers ” and

o nce as “ M e mbers. ” But we must c onsider that section “ in the context of the instrum ent as a whole.” Plains Expl oration , 473 S.W.3d at 305 . Nothing in Section 3.1 or any othe r pro vision in the Agreement makes membership contingent on signing the Agreemen t . R at her , the membership

- relate d provisions require that a person receives their Membership Interest only after making the required capital contribution. Moreover, surroundi ng facts and circ umstances can “provide context that elucidates the meaning of t h e word s em ployed” so long as tha t evidence does not create ambiguity which otherwise does not exist in the contract. S ee URI , 543 S.W.3d at 76 5 ; see also First Bank v. Brumit t , 519 S.W.3d 95, 110 (Tex. 20 17) ( “ In other words, the parol

- evidence rule ‘ doe s not p rohi bit consideration of s urrounding circumstances that inform, rather than vary from or contradict, the contract text. ’ ” (quotin g Houston Expl. Co.

v. Wellington Underw riting Agencies, Ltd ., 352 S.W.3d 462, 469 (Tex. 2011) ). Although the original p urchas e co ntract for the Propert y was executed in September 2017, that contract was not assigned to the Company until F ebruary 2018. The Agreement was then signed on March 1, 2018, with the Company closing on the Prope rty approximately one week later . A s Black
tes tifi ed in his depositi on, “we had all signed an agreement saying that as soon as capital contributions were made, they would be a me mber” and that “since no one had made them yet, we had signed [the Agreement] as members and as managers because w e anticipa ted that the organizat ion would run with us in those capacities but had not yet been effectuated under the
the Agreement itself and the Texas Business Or ganizations Code treat Managers and Members differently. Comp a re Tex. Bus. Orgs. Code §§ 101.101

– .114 (Membership), with id. §§ 101 .301

– . 307 (Mana gers).14 terms of that operating ag reement because no capital contr ibutions had yet been established.” Such references to Towne as a “Member ” on s i gnature bl ocks thus d o not make the Agreement ambiguous about Towne ’s membership, but ra ther demonst rate that the parties at the time believed Towne, Black, and Duta would bec ome Members pursuant to the terms they expressly agreed to under the Agreement. S e e First Bank , 519 S.W.3d at 11 0

. Con trary to that assumption, Towne ultimat ely did not make t he capital contribution required under the Agreement.
Acco rdingly, b ased on t he unambiguous terms of the Agreement, a party would only become an initial Memb e r of the C ompa ny after making the monetary capital contri bution required under Se ct ion 3.1 and Schedule 1. Since the parties do not dispute that Towne never made such a capit al contribution, the trial court did not err in determin ing that he is not a Mem b er of the Company as a matter of l aw . We overrule To wne ’ s first issue.
Validity of the A m en ded Agreement and Member Meeting In his second issue, Towne c ontends tha t the trial court erroneously concluded the Amended Agreement was valid and effective

. T o wne argues that when the Agreement was amended on March 8, 2018, A ppellees improperly re move d Towne ’ s membership interest and voting rights without his consent

. He points to Section 11.7(a) of the Agreement, which requires that

any amendment or modifica t ion (a) altering any Member’s share of allocations o f Profits (or any item thereof) and Los ses (or any item thereof) or distributions (other than a s a result of the issuance of additional Membership Interests or adjustments to Sha ring Ratios as expressly p ermitted herein), (b) altering any Member’s voting rights (other than as expressly prov ided herein), (c) modifying in any manner a Member’s obligat ions to mak e Capital contributions, or (d) otherwise modifying the limited liabilit y of a Member, shall requ i re the15 consent of the Member affect ed thereby

. (emphas e s added); see also Tex. Bus. Org s. C ode § 101.107 (“A member o f a limited liability
company may not wit hdraw or be expelled from the company.”). Towne also argues that new membership interests cannot be issued without the approval of a ll members. See Tex. Bus. Orgs. Code § 101.105 (aut hori zing limited liability com pany to “ issue membership int erests in th e company to any person with the approval of all of the members of the company ” ). However,
Towne was not a Member of the Company, an d therefore the A m ended Agreemen t did not

“ modify ” h is m em bership interest or memb er voting rights because he d id not have any under the original Agreement. Nor was Towne required to consent to the Amended Agreement.
T o wne also argues that the March 12 me eting was invalid because Towne did not receive not ice of the meeting and the minutes were not signed. Sectio n 10.3 of th e Amended Agreement , however, only required notice of meetings to be given “ to each Member of rec o rd

e ntitled to vote at s uch meeting. ” S u ch a notice requir ement was therefore not appl icab le to Towne, who at the time of the meeting was only a Manager, not a Member, of the Company. Further, Towne cites to no statutory or contractual requirement for m e eting minutes to be signed

. Towne m akes a passing reference to S e ction 10.8 of the A m e nded Agreement that actions at a meeting s hall be “ evidence d by written minutes thereof executed by an authorized Member, ” but nothing in th e Agreement specifi cally req u ires a signature. See Mid

- Contin ent Cas. Co.

v. Glob al Enercom Mgmt., Inc. , 323 S.W.3d 151 , 157 (Tex. 2010) ( “ But the word ‘ execute ’ has several definitions and is not constrained by [the party ’ s] argument that ‘ to execute ’ may only

mean ‘ t o sign. ’ ” ). W e overrule Tow ne ’ s second issu e.16 Summ ary Judgment on App ellants ’ Ca uses of Action
In the ir third issue, Appell ants argue that the trial court e rred in gran ting summary judgment and dismissing their causes of action

. They do not indivi dually address ea c h cause of action, but instead generall y argue that the assignment was invalid, that th e economic loss rule does not apply , that the merger clause in the Agreem ent is inapplicable, and that they generally provided sufficient evid ence to create a material f act issue on “ every portion ” of the sum mary judgment motions

. 8
When the trial court doe s not specify the grounds on which its order s are based ,

“ t he appealing party must negate each ground upon which the judgment could have been bas ed. ” Rosetta Res. Oper a ting, LP v. Martin , 645 S.W.3d 212, 226

– 27 (Tex. 2022) ; see a lso Shih

v. Tamisie a , 306 S.W.3d 939, 944

– 45 (Tex. App.

— Dallas 2010, no pet.)

. That is, the party must either separately address each possible ground or assert a general issue that encompasses

a rguments negating all possible grounds. See Rosetta R esources , 645 S.W.3d at 2 2 7 . Wit hout making such a showing, “ the cour t of appeals cannot pr operly reverse summary judgment on those grounds. ” Id. , see also Shih , 306 S.W.3d at 94 5 ( “ I f an appellant d o es not challenge each possible ground o n which summary judgment could have be en granted , we must uphold the summary judgment on the unchallenged g round. ” ). Here, App ellants challenge onl y the validity of the assignment , the economic loss rule, and the va l idity of the merger c lause, which would not

8 Appellants also arg ue that the trial court erred by considering the summary judgment motions because the trial court had previously denied a traditional summary j udgment motion filed by Duta and the C o mpany
. However, “ [a] trial co urt ma y, in th e exercise of discretion, prop erly grant summary judgment af ter having previously denied summary judgment without a motion by or prior notice to the parties, as long as the court retains jurisdiction over the case. ” Rush v. Barrios , 56 S.W.3 d 88, 98 (Tex. App.

— Houst on [14th Dist.] 200 1, pet. denied) ; see also Gree n v. Gemini Expl. Co. , No. 03

- 02

- 00334

- CV, 2003 WL 1986859, at *6 (Tex. App.

— Austin May 1, 2003, pet. denied) (m e m. op.)

.17 negate every ground for summary judg m ent ra ised by appel le es below. See Rosetta R esources , 645 S.W.3d at 2 27

. 9
Even if those specific arguments were sufficient to negate all summary judgment grounds, Appellant s have failed to adequately brief them on appe al. See LMP Austin Eng

. Aire,
L LC thr o ugh Lafayette Eng

. Partner, LLC v. Lafayette Eng

. Apartments, LP , 654 S.W.3d 265, 291 (Tex. App.

— Austin 2022, no pet.) ( explaining party waives argument due to inadequate b riefing when it fails to properly cite r ecord or provide meaningful argument o r substantive analysis); see also Lion Copol ymer Holding s, LLC v. Lion Polymers, LLC , 614 S.W.3d 729, 733 (Tex. 2020) ( direct i ng court of app eals to consider “ the arguments, evi d ence, and citations relied on by those p arties to determine which issues the p art ies intended to and actually br iefed ” when considerin g waiver (emphasis added) ). App ellants fail to cite any legal precedent or controlling law governing the validity of assi g nments, and although they make some refe rences to the recor d on appeal, Appella nts do not even cite the assignment i tself, which c ontai ns Towne ’ s signature , or their unverified pleadings

. See Rachal v. Reitz , 403 S.W.3d 840, 845 (Tex. 2013) ( “ Typically, a party manifests its assent by signing a n agreement. ” ); In re Bunzl USA, Inc. , 155 S.W.3d 2 02, 209 (Tex. App.

— El Paso 2004 ) (orig. proceeding) ( explaining party ’s signature on written contract is “strong evidence ” of unconditional ass ent ); s ee also Tex. R

. Civ. P. 93 (requiring pleading verified by affidavit when challenging the execution or genuinene ss o f certain writt en instruments or failure of consideration). Appel lants then summarily argue that their fraud, theft, conversion, and tortious interferenc e causes of action are not barred by the economic loss rule in

9 Appellant s do not mention their dismissed causes of action for breach of contract, bre ach of fiducia ry duty, statutory fraud , shareholder op pression , or conspiracy in this issue on appeal. S e e Rosetta Res. Operating, LP v. Martin , 645 S.W.3d 212, 22 7 (Tex. 2022)

.18 a n argument total ing tw o sentences , which fails to sub stantively address how those causes of action “ create liabilit y outside ” the Agreement. See LMP Austin , 654 S.W.3d at 291

. App ellants the n argue the merger clause in the Agr eemen t is in applicable without citing the merger c lause itself , without c iting ev idence in the record , and without any substantive analysis of the rele vant factors or controlling law for determining the enforceability of merger clause s
. S e e, e.g. , Transcor Ast ra Gr p. S.A. v. Petrobras Am. Inc. , 650 S.W. 3d 462, 473

– 74 (Tex. 20 22) (d escribing controlling law and relevant factors for determining whether reliance disclaimer is effective). Finall y, Appellants contend that t hey ha ve shown sufficient evidence of a mat erial fact issue on “ every portion ” of the summary judgment motio ns. S ee Tex. R. Civ. P. 1 66a(c). Appellant s do not specify what evide nce creates these os tensibl e fact issues or the arguments or authorities the y rel y upon for demonstrating a live issue o n any specific cause of action

. See
Lion Copol ymer , 614 S.W.3d at 7 33

. M oreover, as we explained above, Towne is not a Member of the Company (i.e., the only issue t o which A ppellants devote subst a ntial portion o f their briefing). “ An appellate court may not reverse a trial court ’ s judgment with out properly assigne d

erro r. ” Rosetta Res ources , 645 S.W.3d at 226

. Accordingly, we overrule Appellants ’ third issue

.
C ONCLUSION Havin g overruled a ll of Appellant s ’ issues , we affir m the judgment of the trial cou rt.

_______________ ____________________ ______ _ Darlene Byrne , Chief Justice19 Before Chief Justic e Byrne, Justices Kelly and Smith Affirmed File d: October 20, 2023