AFFIRMED and Opinion Filed March 3, 2021 

# S

In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-19-00817-CV ANUBIS PICTURES, LLC AND CMA FILMS, LLC, Appellants V. LAUREN SELIG, SHAKE & BAKE PRODUCTIONS, STEPHEN LANNING, AND PH ILIP HOBBS, Appellees On Appeal from the 162nd Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-17579 MEMORANDUM OPINION Before Justices Peder sen, III, and Reichek 1 Opinion by Justice Reichek Anubis Pictures, LLC and CMA Films, LLC (collectively “Anubis”) appeal two summary judgments dismissing Anubis’s claims against Lauren Selig and Shake & Bake Productions (collectivel y “Selig”). Additionally, Anubi s appeals the trial court’s order granting the spec ial appearances of Stephen Lanni ng and Philip Hobbs. In two issues, Anubis generally contends there were fact issues precluding summary

1 The Honorable Bill Whitehill, J ustice, participated in the or al argument and submission of this case, but not the issuance of the opinion, which occurred after the e xpiration of his term on December 31, 2020. See T EX

. R. A PP

. P. 41.1(b) (“After argument, if for any reason a member of the panel cannot participate in deciding a case , the case may be decided by the two remaining justices.”).–2– judgment in favor of Selig and the trial court had specific jur isdiction over both Lanning and Hobbs based on their actions as agents for Philco F ilms, Ltd. (“Philco”), a company based in London, Engla nd. Selig filed a cross-appeal asserting the trial court erred in denying her moti on for sanctions against Anubis and its counsel. For the reasons that follow, we affirm the trial court’s judgments and orders. Background The actions giving rise to this lawsuit involve the financing of a film based on a screenplay entitled “Downslope ” written by the late Stanley K ubrick. In 2009, the Kubrick estate granted authori zation to develop and produce the screenplay to Philco, Lanning, and Hobbs. Hobbs , who was Kubrick’s son-in-la w and a director of Philco, lives in London. Lanni ng, who resides in Spain, wor ked with Hobbs during the relevant time period. In October 2013, Philco entered into an agreement with five in dividuals, collectively referred to as the SCVTA Group, to secure a portio n of the financing for the production of Downslope. The members of SCTVA agreed to ob tain financing for roughly half the anticipat ed cost of production in exchange for various finder’s fees, production credits, and participation points. Shortly thereafter, SCTVA reached out to Anubis, a Texas-based company, to see if it wanted to invest in the film stating it would be “ a great in-roads project” for the company to “become players in Hollywood.” Anubis respo nded with a letter stating that it would engage i n “due diligence and further inve stigation” with respect–3– to arranging financing for Downsl ope. The letter contemplated that SCTVA would be the borrower of the funds and a term sheet would be forthcom ing. It further stated that “[t]his letter and the Term Sheet impose no liability or o bligation on Anubis in any way.” The record contains no indication that a loan to SCT VA was ever pursued. In November 2013, Jacob Cohen, one of Anubis’s principals, was introduced to Selig, a partner in Shake & Bake Productions, in connection with a different project. Following a phone convers ation between Cohen and Seli g, Cohen sent Selig an email enclosing a non-disclosure agreement (“NDA”). The ema il stated that, once the agreement was executed, Cohen wanted to share a film o pportunity with Selig that included Chris Pine a nd Anna Kendrick. The recital portion of the NDA stated, Anubis is in the business of financing, developing, creating, distributing, and publishing visual content for television, fil m, video games, internet, on-line, mobile, and other forms of distributi on. [Selig] is a potential financial/c reative partner and the parti es desire to discuss the potential for Anubis to collaborate with [Selig] in connection with the aforementione d project(s) (the “Discussions ”) and to provide for the confidentia lity of the Discussions and the i nformation relayed during such Discussions. The NDA further stated that the parties to the agreement would not use any confidential information received from the other party “except for the sole purpose of participating in the Discussions.” To be covered under the terms of t he NDA, confidential informat ion disclosed in written form was required to be marked confidential on its f ace. Any oral–4– statement intended to be confid ential had to be clearly designa ted as such by the disclosing party. In addition, confidential information was de fined by the NDA to exclude, among other things, (1) information that had become pu blicly known through no wrongful act of the receiving party, (2) information rightfully received by the receiving party from a third party without restrictions on disclosure and without breach of the agreement, (3) information approved for r elease by written authorization of the disclosing party, and (4) information furn ished by the disclosing party to a third party without a similar restriction on disclos ure. The NDA specifically stated that neither Anubis nor Selig was o bligated to enter into a transactional contract. In a provision entitled “ No Obligation to Complete Transaction,” the parties agreed, Neither party is bound to proceed with any transaction between the parties unless and until both pa rties sign a formal, written ag reement setting forth the terms of such transaction. At any time prior to the completion of such a formal, written agreement, either party ma y terminate the Discussions and refuse to enter into any subseque nt transaction, for any reason or for no reason, without liability for such termination, even if the other p erformed work or incurred expen ses related to a potential transactio n in anticipation that the par ties would enter into a formal, written agre ement regarding such transacti on. In a section entitled “Governing Law,” the NDA provided the agr eement would be governed by the laws of the State of Texas and any action arisi ng out of or relating to the agreement must be broug ht in Dallas County. The agreeme nt concluded with the statement that “[n]o waiver or modification of any of the p rovisions of this Agreement shall be valid unle ss in writing and signed by both p arties.”–5– After Selig signed the NDA, Cohe n emailed her a copy of a scrip t for a film called “Mantivities” which he stated would star Pine and Kendri ck. Cohen asked Selig to let him know when she ha d time to discuss financing fo r the Mantivities project, but, after some discussion, Selig decided not to parti cipate. During this time period, Anubis had begun communicating direct ly with Philco about the Downslope proj ect. On December 2, Lanning ema iled the members of SCTVA to let them know that Ph ilco had decided all further n egotiations would involve only Philco a nd Anubis. Lanning ema iled Anubis the sam e day with points to address in preparation for signing a letter of intent betwee n Anubis and Philco. Among the points to be addressed in the negotiations was whethe r Downslope would be filmed in Texas. Lanning stated Philco needed creative inpu t and “confirmation by the director that Dallas will work as scripted, scheduled, a nd budgeted.” In January 2014, while the lette r of intent between Anubis and Philco was being negotiated, a team from A nubis met with Selig to discuss several potential projects, including Downslope. On January 10, an Anubis repres entative, Johnathan Brownlee, emailed Selig a link to a copy of the Downslope scrip t. Neither the email nor the script was marked as confidential. Selig responded to Brownlee a few minutes later asking, “You own it outright?” Brownlee responde d, “We have an executed exclusive to finance fo r Philco.” Brownlee went on to state that the director of the film, Jay Russell, had s poken with Joaquin Phoenix and M att Damon and he requested that Selig not forward the script. In an email sent a few hours later,–6– Brownlee told Selig the budget for the movie was approximately $20 million and, although it was originally budgeted to be shot in Romania, it w as now going to be shot in Texas. Neither email was marked confidential. Two and a half weeks later, on th e morning of January 27, Brow nlee emailed Selig again, asking if she was in terested in discussing the “Ku brick deal.” Over the next several hours, Selig and Brownlee exchanged emails regardi ng issues such as sales estimates and producers. N one of the emails was marked a s being confidential or containing confidential inform ation. Selig then asked Brown lee whether Anubis had shown the Downslope project to anyone else and she stated s he had “deep relationships with Film Nation, E xclusive, and Voltage.” Brown lee responded they had not yet shown the project to anyone because Anubis wanted t o solidify its financing partners first. Brownlee went on to state, “If you a re interested, let us know. We can put together an LOI subject to budget, sales esti mates . . . etc. and then take it to the market together.” While Brownlee was in discussion s with Selig, Cohen was contin uing negotiations with Philco. Cohen em ailed Lanning a letter of in tent for Anubis and Philco “to enter into a more form al Production Financing Agreem ent.” In the letter, Anubis stated it was committed to funding up to half of the tot al budget for the production of Downslope in exch ange for various production cred its, approval rights, and fees. Anubis also specified that Downslope would b e shot in Texas and based in Dallas. The letter conc luded, “If the proposed terms are acceptable to you,–7– please sign below and we will incorporate these terms into the Agreement in which both parties shall commence to n egotiate and draft in good fait h, provided, however, that until the Agreement is execu ted, the proposed terms of thi s letter shall be in full force and effect.” Later that d ay, Lanning emailed the members of SCVTA stating Philco had “agreed and signed our LOI with Anubis. Many thanks for making the introduction possible.” Half an hour after Cohen sent Lanning the Philco letter of int ent, Brownlee emailed Selig a substantially sim ilar letter stating, “If this works for you, please execute and return and we can move forward.” Brownlee testifie d the letter was based on discussions with Selig and memorialized the terms to w hich Selig had agreed. The terms set out in th e Selig letter of intent were l argely identical to those set forth in the Philco letter of intent, but with Selig in the place of Anubis and taking on the responsibility to fund 50% of the total cost of Downslop e. The letter did not, however, give Selig some portions of the compensation Anubis wa s to receive from Philco pursuant to the Ph ilco letter of intent. The next day, January 28, although Selig had not executed the letter of intent, Brownlee emailed Selig and told her that she could send the Dow nslope script to her industry contacts. Brownlee made no mention of keeping the scr ipt confidential. Brownlee also told Selig he had not yet given any of her inform ation to Philco, but that Philco was “open to our team financing the entire project” and he would set up a call with the “whole team” when she was ready. Selig asked i f she could contact–8– the agent for Joaquin Phoenix, and Brownlee responded that she should “stay away from agents until we are able to come to an agreement . . . in principle . . . then we can hit it hard and get the deal packaged!” (Ellipses in origin al.) Brownlee also sent Selig a list of twenty well-known actors, including Ryan Goslin g, Brad Pitt, Robert Downey, Jr., and Ryan Reynolds, who he believed might be intere sted in the project stating “Confidentially . . . and in no particular order . . . [] I think we can get any one of these guys based on the script and the Kubrick ‘last scr ipt’ buzz.” (Ellipses in original.) Selig then forwarded the Downslope script to her co ntacts at Film Nation and Voltage. The email began w ith “[s]ending this one to you c onfidentially” and went on to say that she and Anubis were “on the hunt for a sale s company and to complete the funding for [the film].” Later that evening, Brownlee em ailed Philco stating Anubis had “a great call with one of our financial and producing partners regarding ‘Dow nslope’” and the partner had “expressed strong in terest in financing the entire project.” Brownlee also stated that Anubis had a “signed NDA with this group.” Al though Brownlee had already told Selig she could speak with her contacts, he re quested permission from Philco to “reach out to some of our strategic distribution and sales partners” including “Exclusive, Film Nation, and potentially Voltage.” B rownlee went on to state, “We noticed that we do not have a mutual NDA between our groups and, as a matter of course, have attached [one] for your execution. We a re then happy to share our partner’s information and set up that call. If you would a lso not share the project–9– with any other potential financ ing partners until further notic e, it would be appreciated.” The Philco NDA was nearly identical to the one s igned by Selig. On January 30, Selig emailed Br ownlee asking if she could cont act another individual with whom she frequently partnered on funding things . Selig stated, “Also I want to be clear about how this works if I help you get the money or fund it myself. I don’t want to get into a situation where I pull off a little miracle and get left in the dust. Has happene d before. It’s not fun.” Shortly thereafter, Cohen sent Selig a copy of Anubis’s letter of intent with Philco. Selig responded, “This is your letter to them. Did th ey counter sign? Just want to make sure you really have this buttoned up and that if I help you raise the capital on this that I am attached as a producer with fees pari [passu] to you.” 2 Selig testified that the Philco letter of intent did not indicate to her that Anubis had an “executed exclusive” with Philc o as had been represented, but o nly a preliminary arrangement to fund half of the film’s production budget. She also did not view the letter as an enforceable financi ng agreement. Selig stated she then sought to make contact directly with Philco through her industry contacts with the Downslope director, Jay Russell. On January 31, Russell introdu ced Selig to Lanning and Hobbs v ia email. Selig told them she was excited about the project and would lov e to help them get it

2 “Pari passu” is a Latin phrase m eaning at the same rate or on equal footing.–10– funded. This email was followe d by a phone conversation and a request by Selig to meet with the men when she was in Europe in February. Selig then emailed Brownlee sta ting that she had talked with L anning and Hobbs and she was “going to get this funded.” Brownlee respond ed, “Let’s get you officially attached and then we can set some stakes in the grou nd and get this done!” Selig said she could meet with Anubis on February 14 when she r eturned from Europe and she wanted to discu ss how funding the project would be structured. Cohen then emailed Lanning asking him to sign the NDA he had s ent earlier and proposed having “an introducto ry call” with Selig “with the intent that we begin the drafting of a short form agre ement shortly thereafter.” Br ownlee also sent an email to Philco and Selig stati ng, “We are glad to have our par tner, Lauren Selig and her Shake and Bake productions excited to be a part of this pro ject. Let us all get on a call on [February 3] and speak and set out some parameters an d milestones ahead of us in order to act a s one unified team.” Before the February 3 conference call, Brownlee emailed Selig’ s attorney, Matthew Hooper, stating Anubis was “happy to include Lauren as an equal partner in our current overall Anubis deal with Philco. Once we have a n executed agreement, we will go back to Philco and get approvals on reque sted credits. I suggest a time/term for Lauren to line up the financing or a cl ause which states that the terms of her attachment and remuneration are subject to the performance and closing of the $21MM in financing for ‘Downslope.’”–11– Following the call, Selig ema iled Lanning and Hobbs stating sh e would circle back with them after talking to Brownlee and asked again if the y were available to meet while she was in Europe. Lanning responded that Hobbs wou ld be in London when she was there and that he might be able to join them. Lan ning further commented, “Those calls are funny. Until Anubis prove [sic] th eir half they control nothing really.” Selig relied, “Yes very funny. They pretend to be something they
are not.” Later that evening, Selig email ed Lanning and Hobbs asking abo ut proof that the Downslope script was “authe ntically Kubrick.” Lanning resp onded that they had “a budgeted $2.2 mill fee payable directly to the Kubrick trust guaranteeing its pedigree. With an accompanying 60 page chain of title.” Lanni ng followed this with an email to Brownlee sta ting, “We will happily provide [ch ain of title] . . . when we in turn receive more proof of funds\Financing.” Brownlee fo rwarded the email to Selig and told her she could see the chain of title “[w]hen we show [proof of funds] or commit to the financ ing. I would suggest that we get our internal deal signed and then we can make the [chain of title] a request subs equent to executing the [short form agreement].” When Selig stated that she did no t want to proceed further without seeing a chain of title, Brownlee responded tha t he understood “if [she] cannot continue at this point.” The next morning, after Brownlee learned of Selig’s planned me eting in London with Philco and others, including Stanley Kubrick’s wido w, Christiane–12– Kubrick, Brownlee emailed Selig asking “are you okay with [t]he [chain of title] as you are now set to meet with the Kubrick family[?]” Selig forw arded the email to Lanning and Hobbs asking how they would like her to handle it. She stated, [Brownlee] is being rather pus hy about my signing a document with them. I am not going to get into a battle on this and wou ld be happy to help you fund this and get it cast. If they have an e xclusive with you then my only way to get involved would be to go throug h them. If not we need to figure out another way. And I am not interested in doing a meeting with christia n[e] kubrick and anubis at the same time as I have not signed anything yet. When Brownlee did not receive a response from Selig about the m eeting in London, he emailed Hooper, telling him, “We have arranged for L auren to meet with the Kubrick estate in London . . . Can you give us timing on th e Anubis/Selig document so we can manage exp ectations on all sides?” On the morning of February 5, Selig forwarded the Downslope scr ipt to another industry contact along w ith information about the proje ct obtained from Russell that was forwarded to her by Lanning. The email stated , “I have the opportunity to produce with a company called Philco out of the UK that is the family rights holder. Ccd above. . . . As I mentioned, Glen at Film n ation, nick at voltage and exclusive are the only sales companies that have it so far as they were preapproved by philco.” Selig then stated she would be meeting wi th Christianne Kubrick in one week and asked fo r help with casting and funding

. Later that day, Lanning sent an email to Brownlee stating that Philco had other financiers “willing to go to the next stage with proof of funds via their bankers” and–13– asked if Anubis was able to re spond accordingly. Lanning furth er stated that, “So I am able to deal sensibly with t hese potential other funders whi ch is dependent on Anubis creating a new offer for 100% of the finance, I would li ke you to confirm in writing that Lauren Selig is signed to partner you in this new arrangement as you indicated on our recent telephone conversation.” Lanning forwa rded the email to Selig and told her he would send her Anubis’s response. Selig responded that Brownlee had been trying to call her all morning, but she was “ not going to sign his deal right now. He deserves a finder’s fee, but I don’t want t o be tied to him through this process and I don’t like his way of making up stories. Th at doesn’t work for me.” Lanning agreed and noted that Philco would save additiona l fees if it did not contract with Anubis directly. Brownlee responded to Lanning’s e mail stating, “As I mentioned on the phone yesterday, we are completing internal documentation between Lau ren and Anubis and we will get written confirmati on to you once this is execut ed. In anticipation of that, we will be sending an adjusted LOI which allows for Anubi s to finance 100% of “The Downslope” and additional credits to include Lauren and her company.” Lanning replied that he did not “need another LOI in anticipati on of the Lauren/Anubis Deal. As obviously your deal with her is not fin alized yet. More important to us is the question of you providing proof of funds now to accommodate other contacts.” Brownlee replied that Anubis’s funding was no t contingent upon Selig’s involvement and they were prepared to speak to Philco’s other potential–14– investors once Philco had “signed agreements with them under th e same terms as our executed agreement.” At the same time, Brownlee emailed Selig asking, “Are you still wanting to proceed with “The Downslope?” If you could give us an update, it would be appreciated. If so, we should put Matt [Hooper] in touch with our counsel, Larry Waks, to complete our agreement.” Nineteen days later, on February 24, when Philco had not receiv ed proof of funds from Anubis, Lanning sent an email entitled “Termination of Arrangement to Fund ‘The Downslope.’” In th e email Lanning stated, It is with regret that Philco today is terminating its relation ship with Anubis to part fund “The Downslope.” Your lack of contact has really unsettled us as well as putting doubt in Philco’s ability to pe rform with some of its other potential financial sources. We have been wa iting since February 5 th for you to come back to us with some answers or even to make any contact at all. I personally called on the 6 th and 7 th leaving messages on your message service. You also never made any further contact with our Director who made time to meet up with you when you were planning your recent LA visit. We will naturally not discuss with anyone our reasons for ending this arrangement and wish you great success with all your other projects. Despite this email, four months later, on June 29, Brownlee em ailed Selig regarding their “mutual project, Downslope” and stated Anubis h ad become aware that she was pursuing the opportunity directly with Philco. Br ownlee stated he “found this very disturbing as all parties are aware of our exc lusive in this film project.” Brownlee referenced the non-disclosure agreement Sel ig signed in November 2013 and the fact that Anubis had later sent her the D ownslope script in–15– January 2014. Brownlee then sta ted that, “As requested, we sen t Matthew [Hooper] our executed agreement with Philco as well as a draft Term Shee t (January 27, 2014) for your/Shake and Bake’s involve ment in our project, “Downslop e.’” According to the email, Anubis made repeated attempts over the following weeks “to get the Anubis/Shake and Bake Term sheet completed and executed.” Brow nlee advised Selig that “if it is your, or anyone whom you introduced this p roject too [sic], intention to proceed at any level with this project, we request that you immediately comp[l]ete and execute our agreem ent as originally intended.” Hooper responded that Anubis had misrepresented its relationsh ip with Selig to Philco and Anubis’s inability to participate in the project was due to its own “complacency and poor communica tion.” The email concluded by d emanding that Anubis cease and desist from stating that “Anubis in any way re presents Ms. Selig in any transaction” or from interfering in Selig’s current or p rospective agreements and business relationships. Anubis filed this action in December 2017 asserting claims aga inst Selig, Lanning, and Hobbs for, among other things, breach of the Selig NDA, breaches of the letters of intent, quantum meruit, promissory estoppel, fra ud, and breach of fiduciary duty. Lanning and Hobbs filed a special appearance c ontending the trial court lacked either general or specific jurisdiction over them. Selig filed two motions for summary judgment.–16– Following separate hearings and in separate orders, the trial c ourt granted summary judgment in favor of Selig, first on Anubis’s contract claims, and later on its claims for quantum meruit, promissory estoppel, fraud, and breach of fiduciary duty. On the same day the court granted Selig’s second summary judgment, it signed an order granting Lanning and Hobbs’s special appearance and di smissed the suit against them. Thirty days after Anubis’s claims were dismissed, Selig filed a motion for sanctions against Anubis and its counsel contending the claims against her were baseless as shown by Anubis’s own documents and the suit was br ought solely for the purpose of harassment. Anubi s responded that Selig failed to identify any proper basis for an award of sanctions and the motion was “nothing mor e than an effort to convert summary judgment practice into a fee-shifting mechanism .” The trial court denied Selig’s motion and she a nd Anubis filed these cross-appe als. Analysis Summary Judgment
I. Breach of Contract Claims In its appeal, Anubis first challenges the trial court’s summar y judgment dismissing its claims against Selig for breach of contract. Se lig moved for summary judgment on the contract claims asserting several grounds inclu ding that the evidence conclusively establishe d (1) her nondisclosure agreeme nt with Anubis did not restrict the information Anubis provided her regarding the Downslope project–17– and (2) the unsigned letter of i ntent was not binding on her. We review an order granting a motion for summary judgment de novo. Lujan v. Navistar , 555 S.W.3d 79, 84 (Tex. 2018). To be entitle d to summary judgment, the mo vant must show no genuine issues of material fact exist and they are entitled to judgment as a matter of law. Id . We first address Anubis claims against Selig based on the no n-disclosure agreement. A. The Nondisclosure Agreement Anubis contends the trial court erred in granting summary judg ment on its claims under the NDA because the agreement applied to the Downs lope project and there were fact issues regarding whether Selig misused confiden tial information Anubis had given her. 3 According to Anubis, the allege dly confidential information it provided Selig included the Do wnslope script and information about casting, budget, sales estimates, and st affing. The NDA between Anubis and Selig required that, for written material to be considered confidential, it mu st be marked confidential on its face. Excluded from the agreement was any information that was (1) publically known at the tim e it was disclosed, (2) approved for release by the disclosing party, or (3) rightfully received from a third party without restriction on disclosure. Absent a compelling reason, courts must respect an d enforce the terms

3 As an alternate ground for summary judgment, Selig asserted tha t the NDA applied only to the Mantivities project. For purpo ses of this opinion, we assume t he NDA applied to the Downslope project as urged by Anubis.–18– of the contract the parties have freely and voluntarily made. Bombardier Aerospace Corp. v. SPEP Aircraft Holdings, LLC , 572 S.W.3d 213, 230 (Tex. 2019). It is undisputed that the Downslope script was not marked confi dential and, when Brownlee first shared it with Selig, he simply sent her a link to the script without any indication that it wa s confidential. In a later em ail discussing the film’s director and possible cast members, Brownlee simply stated, “Pl ease do not forward the script.” This email was fo llowed a short time later by an email in which Brownlee discussed the film’s budget and the fact that the film ing location was being moved from Romania to Texas. Like the script, these emails wer e not marked as confidential and thus would not meet the agreement’s definition of confidential information. Only one email contained the word “confidentially ” and the substance of that email was not informati on, but rather speculation by Br ownlee about twenty popular actors he thought might b e interested in the Downslope project. It is also undisputed that the Kubrick estate is the rights hol der to both the Downslope script and the project. Lanning testified Philco bec ame authorized to represent the Kubrick estate in connection with the Downslope p roject in 2009 and, since that time, Philco had shared the script with “many person s and entities . . . who were interested in developing the script into a movie.” Lannin g further testified that, on behalf of Philco, he “shared with Lauren Selig the script fo r Downslope and various other materials relevant to the Downslope project.” Al though Anubis argues–19– Philco restricted Selig’s ability to disclose the script, there by making it confidential under the terms of the NDA, A nubis cites no evidence to support this assertion. 4 Anubis contends that, even if the materials it disclosed to Sel ig were not initially covered by the agreement, there is a fact issue regar ding whether the parties considered the information conf idential because Selig treated i t as such when she asked for Anubis’s permission to send the Downslope script and information about the project to some of her contacts. This argument begs the qu estion of how Selig could have breached the NDA if she treated the information give n to her as confidential in the manner pres cribed by the agreement. The summary judgment evidence c ontains three disclosures by Sel ig of information about the Downslope project. The first two disclos ures occurred on January 28, 2014, and were author ized by Anubis in writing, thu s removing the information from the definition of confidential information und er the terms of the agreement. The third disclosu re occurred on February 5 and was specifically

4 Although Anubis provides a record citation to support this ar gument, the page Anubis cites is a court reporter’s certification. Immediately preceding this page is d eposition testimony by Selig in which she stated that it would be her “preference that the Downslope scri pt isn’t shared to the greater public.” Anubis does not explain how this statement can be read to suggest that Philco restricted Selig’s use of the script. Alternatively, on the pages following the court reporter’s cert ification are emails between Selig and Lanning. In these emails Selig requested Philco’s permission t o reach out to other contacts to “package” with her on the project. The emails do not contain any referen ce to restrictions on Selig’s use or disclosure of information, nor can any such restricti on be inferred. Lann ing’s response to Selig’s request was simply “Yes,” with no mention of any restrictions on the information S elig could provide her contacts. The email Selig then sent to one of her contacts, and on which both Lanni ng and Hobbs were copied, included the Downslope script and information about the budget, production, and casting with no mention of confidentiality.–20– authorized by Philco. This disclosure included the script, to which Philco had the exclusive rights from the Kubrick estate, and information from the film’s producer given to Selig by Lanning, not Anubis. 5 Anubis contends that, under the terms of the NDA, Selig was per mitted to use the information it gave her about Downslope only for the purpos e of participating in discussions with Anubis. Accordingly, it argues that her worki ng directly with Philco constituted a violation of the agreement and any informa tion she received from Philco was not “rightfully received.” In making this argu ment, Anubis attempts to bootstrap its claim t hat Selig violated the NDA to its claim that she breached the unsigned letter of intent. The NDA states that ne ither party is obligated to proceed with any transaction until both parties sign a forma l, written agreement setting forth the terms of the transaction. The NDA further st ates that, at any time prior to the completion of such a formal, written agreement, Se lig was free to terminate her discussions with A nubis. Nothing in the NDA prev ented Selig from choosing not to proceed with Anubi s and to work with directly w ith Philco.

5 Lanning testified he gave Selig a copy of the script in Februa ry 2014. Anubis argues the evidence suggests this did not occur until after Selig sent the script t o her contact on February 5. Because of this, Anubis contends Selig must have sent the copy it received from Anubis which was covered by the agreement and required Anubis’s authorization. Even assuming t he script could be considered confidential information, it is undisputed that Anubis received its copy of the script from Philco and that Philco authorized Selig to disclose the script to her contact on Febru ary 5. Brownlee in fact testified that he requested Philco’s permission to share the script when he autho rized Selig to make the January 28 disclosures. Whether the copy of the script Selig sent her con tact on February 5 was given to her by Anubis or Philco is a distinction that makes no difference.–21– Nor does the NDA prevent Selig from using information she obtai ned from Anubis once she obtained the same information from Philco. In fact, the agreement excludes such information from c overage. While Selig may not h ave been aware of the opportunity to work with Philco prior to Anubis discussing the project with her, the opportunity itself was not confidential information and Anu bis makes no argument to show that it was. 6 Although the agreement prevents Selig from disclosing to Philco any confidential information she obtained from Anubis of which Philco was unaware, there is no evidence in the record that thi s occurred. The evidence shows instead that Selig’s discussions with Philco inv olved information provided by, and originating from, sources unrelated to Anubis and given to Selig by Philco. Accordingly, we concl ude the trial court properly g ranted summary judgment on Anubis’s claim for breach of the NDA.
B. The Letter of Intent Selig moved for summary judgment on Anubis’s claim for breach o f the letter of intent contending the evidenc e conclusively showed no enforc eable transactional contract was ever formed. Anubis concedes that Selig never sig ned the letter of intent, but argues there is a fact issue regarding whether an e nforceable oral

6 Selig provided summary judgment evidence showing that the prod uction of the Downslope script and Philco’s involvement with the project was publically known for years before Anubis became involved. Although Anubis objected to this evidence, the trial court over ruled these objections and, other than noting the objection, Anubis presents no argument or authority on appe al challenging the trial court’s ruling.–22– agreement was created. We conc lude the summary judgment eviden ce shows no enforceable contract was formed as a matter of law. To prove the formation of a valid and enforceable contract, Anu bis is required to establish that (1) an offer was made; (2) the other party ac cepted in strict compliance with the terms of the offer; (3) the parties had a m eeting of the minds on the essential terms of the contr act; (4) each party consented t o those terms; and (5) the parties executed and delivered the contract with the intent that it be mutual and binding. USAA Texas Lloyds Co. v. Menchaca , 545 S.W.3d 479, 502 n.21 (Tex. 2018). In addition, a party see king to recover under a contrac t bears the burden of proving that all conditions preced ent have been satisfied. Chalker Energy Partners III, LLC v. Le Norman Operating LLC , 595 S.W.3d 668, 673 (Tex. 2020). Parties may agree that a formal, written agreement signed by the partie s is a condition precedent to contract formation. Id

. The elements of oral contracts are the same as for written cont racts and must be present for a contract to be binding. Thornton v. Dobbs , 355 S.W.3d 312, 316 (Tex. App.—Dallas 2011, no pet.). In determining whether an or al contract exists, we examine the communications bet ween the parties and the circu mstances surrounding those communications. Id . Although whether parties have formed a contract to which they intend to be bound is often a question o f fact, it may be resolved by the court as a matter of law. See Chalker , 595 S.W.3d at 673.–23– In this case, the only contract signed by both parties was the NDA. In that contract, Anubis and Selig agreed that neither party was “bound to proceed with any transaction between them unle ss and until both parties signed a formal, written agreement setting forth the terms of such transaction.” The Te xas Supreme Court recently addressed the effect of a substantially similar “no ob ligation” provision in Chalker Energy Partners III, LLC v. Le Norman Operating LLC

. Id

. In Chalker , the parties signed a “Confidentiality Agreement” that include d a “no obligation” provision stating “unless and until a definitiv e agreement has been executed and delivered, no contract or agreement providing for a transaction between the Parties shall be deemed to exist.” Id . The supreme court began its analysis of the effect of this provision by stressing that “Tex as’s strong public policy favoring freedom of contract is fi rmly embedded in our jurispru dence.” Id . The court went on to conclude that language such as that found in t he “no obligation” clause “makes clear the parties’ intent that the contemplated f ormal document is a condition precedent to contract formation.” Id at 674. Because no contract was “executed and delivered” by the parties as required by the conf identiality agreement, the court concluded no binding transactional contract was creat ed as a matter of law.
Id

. The language in the NDA before us is substantively identical to the language presented in Chalker . The “No Obligation to Complete Transaction” provision of the NDA drafted by Anubis require d the parties to sign a formal , written agreement–24– setting out the terms of the tra nsaction before the parties bec ame contractually bound. Because Selig never signe d a written agreement with Anu bis, the agreed upon condition precedent to the formation of a transactional co ntract was never fulfilled and no binding contract was created. Id

. Like the plaintiff in Chalker , Anubis argues Selig waived the requirement of an executed written contract by her conduct. Waiver is an inte ntional relinquishment of a known right or intentional conduct inconsistent with claim ing that right. Id . at 676. Although waiver is ordinarily a fact question, when the s urrounding facts and circumstances are undisputed, waiver may be decided as a matter of law. Id . at 676– 77. To establish waiver by c onduct, Anubis was required to sho w that Selig acted in a manner that was “unequivocally inconsistent” with relying on her right to not be bound until she signed a fo rmal, written agreement. See id . at 677. The evidence Anubis relies upon to show waiver is largely affid avit testimony by Brownlee. In his affidavit, Brownlee stated that, on Januar y 27, 2014, he spoke with Selig on the phone and “Anubis understood that agreement h ad been reached.” Brownlee further testified that “ Selig requested that the terms be memorialized in writing” and “at Ms. Selig’s direction, Anubis sent Ms. Selig a letter of intent . . . memorializing those terms and re quested her signature so that ‘ we can move forward.’” Rather than demonstrating waiver, this testimony confirms that Selig was relying on the need for a signed, written agreement before she would be contractually–25– bound to proceed with any transaction with Anubis. Brownlee’s testimony concerning his understanding of the conversation with Selig is insufficient on its own to create a fact issue. An interested witnesses’ affidavit testimony reciting that he believes certain facts to be true is not readily controverti ble and has no probative value. Doe I v. Ripley Entm’t, Inc. , No. 05-18-00470-CV, 2020 WL 57339, at *3 (Tex. App.—Dallas Jan. 6, 2020, no pet.) (mem. op.). Brownlee’ s self-serving statement that he believed an oral agreement had been reached, without any underlying factual support, will not raise a fact issue to defe at summary judgment.
Id

. The absence of underlying facts to support Brownlee’s testimony is made apparent by the abundant eviden ce showing that neither Selig no r Anubis conducted themselves in a manner suggesti ng an enforceable transactional agreement between them had been reached. Anubis points to the emails Selig sent to her industry contacts stating that she and Anubis were “on the hunt” for fun ding for the Downslope project as evidence that Selig believed the parties h ad finalized an agreement to work together. But the NDA drafted by Anubis cont emplated the parties would “perform[] work or incur[] expenses related to a potential transaction in anticipation that the parties would enter into a formal, wri tten agreement regarding such transaction.” It was agreed that such work would be perfor med without either party being liable to the other if they chose not to go forward with the transaction before a formal agreement was si gned. Performing work related to the potential–26– transaction does not, therefore, demonstrate Selig believed a b inding transactional agreement between the parties ex isted or that she intended to w aive the requirement of a formal, written contract signed by both parties. All othe r communications between Selig and Anubis are cons istent with Selig’s assertion that no enforceable agreement had been created. Immediately before Selig sent th e emails to her contacts statin g that she and Anubis were “on the hunt” for funding, Brownlee told her that s he could not contact the agent for one of the proposed actors because they had not y et “come to an agreement [] in principle.” Later that same day, Brownlee told Philco that Anubis had a signed NDA with Selig, but made no mention of any transac tional agreement. Two days later, after Selig received a copy of the letter of in tent between Philco and Anubis, Selig expressed concern to Brownlee that “ if ” she helped Anubis raise capital for Downslope, she wanted to make sure she was “a ttached as a producer with fees pari [passu]to [Anubis].” Contrary to Selig ’s stated requirement, the letter of intent drafted by Anubis did not grant her the sa me compensation that Anubis was to receive. Accordingly, the letter of intent upon which Anubis relies did not reflect the deal Se lig stated she wanted. Over the next several days, Anubi s repeatedly requested that Se lig sign the letter of intent so that she woul d be “officially attached.” B rownlee stated Anubis could not get approvals on producer credits for Selig until she and Anubis had “an executed agreement.” Additionally, Brownlee sent an email to S elig’s attorney–27– suggesting that a clause be added to the agreement stating the terms of her attachment and remuneration woul d be subject to her performance in obtaining financing. It is clear from this , that the terms of a transact ional agreement between Anubis and Selig were s till being negotiated. Finally, on two different occas ions, Brownlee indicated Selig w as free to discontinue her involvement with Downslope. When Selig told Br ownlee she did not want to continue exploring funding without a chain of title guaranteeing authenticity of the script, Brownlee responded that he understo od if she chose not to continue with the project at that point. Brownlee later asked Selig if she was “still wanting to proceed with ‘The Downslope?’” All communications b etween Selig and Anubis clearly demonstrate Selig did nothing unequivocally inconsistent with her right to insist upon a formal, written agreement signed by both parties. We conclude the trial court prope rly granted summary judgment on A nubis’s claim for breach of the letter of intent. See Chalker , 595 S.W.3d at 677. II. Quantum Meruit As an alternative to its contract claims, Anubis additionally sought to recover from Selig under a quantum meruit theory. Anubis asserts that Selig’s email to Lanning in which she suggested Anubis was entitled to a “finder ’s fee” for bringing the parties together was “legall y sufficient evidence that Anub is provided her with valuable services or materials.” We disagree.–28– Quantum meruit is an equitable remedy based upon the promise i mplied by law to pay for beneficial serv ices rendered and knowingly accep ted. Hill v. Shamoun & Norman, LLP , 544 S.W.3d 724, 732 (Tex. 2018) . To recover under quantummeruit, the claimant must prove t hat: (1) valuable services wer e rendered or materials furnished; (2) to the person sought to be charged; (3 ) those services and materials were accepted by the person sought to be charged, and were used and enjoyed by her; and (4) the person sought to be charged was rea sonably notified that the claimant performing such ser vices or furnishing such materi als was expecting to be paid by the person sought to be charged. Id . at 732–33. A party generally cannot recover under a quantum meruit cl aim when there is a valid cont ract covering the services or materials furnished. Id . at 733. 7 Anubis contends that it expected compensation for introducing Selig to Philco. To succeed on its claim, however, Anubis was required to show that it

7 In her first motion for summary judgment, Selig contended tha t any services or materials furnished to her by Anubis were covered by the NDA, which specifically pr ohibited recovery for work performed or expenses incurred related to a potential transaction if the par ties did not enter into a formal, written transactional agreement. After a hearing on Selig’s motion, th e trial court granted summary judgment against Anubis on its contract claims, but reserved judgment on the remaining claims, including the quantum meruit claim, until after further discovery was conduct ed. Sometime later, Selig filed a second motion for summary judgment on Anubis’s remaining claims. In t his motion, Selig did not reassert her argument that the NDA contractually barred Anubis’s claim for q uantum meruit. Nor did she incorporate her prior motion for summary judgment by reference. In its ord er granting summary judgment in favor of Selig on Anubis’s claims for quantum meruit, breach of fiduciar y duty, fraud, and promissory estoppel, the trial court stated it considered only Selig’s second motion for summary judgment. Accordingly, our review is limited to the grounds p resented in that motion.–29– expected compensation from Selig for introducing her to Philco. Id

. 8 The evidence presented by Anubis showed that it cultivated a relationship wi th Selig in the hope that she would agree to provide financing to Philco. If the de al was consummated, both Anubis and Selig would receive compensation from Philco. Anubis presented no evidence that there was ever any contemplation that Selig wo uld compensate Anubis for anything. See Peko Oil USA v. Evans , 800 S.W.2d 572, 576 (Tex. App.— Dallas 1990, writ denied) (quantum meruit claim fails absent ev idence of expectation of payment from defendant). Even the gratuitous “finder’s fee” statement made by Selig, and relied upon by Anubis, cannot support Anubis’s claim. First, Selig was bro ught in by Anubis for the benefit of itself and Philco. As the “found” party, Se lig would not be the one obligated to pay the fee. More importantly, Anubis’s alleged c ontract with Philco stated that Anubis was to provi de funding for the Downslope pro ject, not find other parties who would provide funding. 9 Anubis provided no eviden ce that either Selig or Philco expected or agreed at the time the introduction was m ade that Anubis would be paid a finder’s fee for its introduction of Selig to P hilco. See id . (court will

8 Anubis contends that Selig’s second motion for summary judgmen t challenged only the first two elements of its quantum meruit claim. We do not read Selig’s m otion so narrowly. In her motion, Selig clearly argued that Anubis could not show it expected payment f rom her for any services it rendered. 9 Anubis contends that its due -diligence letter with SCTVA cont emplated Anubis could arrange financing for Downslope with “one or more lenders.” This lette r, by its terms, (1) was between only Anubis and SCTVA, (2) specified SCTVA as the recipient of funds raised by Anubis, and (3) “imposed no liability or obligation on Anubis in any way.” Selig was not a recipient of this letter and there is no evidence she was ever aware of it. Anubis does not explain how this letter concerning a potential loan that never occurred between two unrelated entities could create an implied obligati on owed by Selig.–30– not fabricate promise implied by law for cash payment parties n either expected nor agreed upon). Finally, it is elementary in the law governing quantum meruit t hat no recovery can be had for preliminary services that are performed with a v iew to obtaining business through a hoped-for contract. Id . at 577. “Where preliminary services are conferred for business reasons, without the anticipation that r eimbursement will directly result, but rather, with the expectation of obtaining a hoped- for contract and incidental to continuing negotiations relating thereto, qua si-contractual relief is unwarranted.” Id . Quantum meruit relief may not be obtained where the claimant did not contemplate compensation at the time the services were rendered or the defendant could not have reasonab ly believed the plaintiff expe cted compensation.
Id . at 577–78. Anubis relies on the Texas Supreme Court’s opinion in Vortt Exploration Co. v. Chevron U.S.A., Inc. , 787 S.W.2d 942 (Tex. 1990), to argue that quantum meruit relief can be based on the expectation of a future contract. I n that case, the supreme court concluded that Chevron had sufficient notice that Vortt e xpected to be compensated for confidential information it provided Chevron wh en both parties understood the information was be ing disclosed based on the exp ectation of it being used as part of a joint operating agreement. Id . at 945. Anubis contends it is similarly entitled to quantum mer uit relief because it furnishe d confidential information to Selig with the expectation that she and Anubis w ould enter into a–31– transactional agreement. As this Court has stated, however, Vortt was decided on the narrow issue of su fficient notice only. Peko , 800 S.W.2d at 579. Vortt does not alter longstanding law that no quantum meruit recovery may be o btained based on services performed with a view t oward obtaining a hoped-for con tract. Unlike the facts presented in Vortt , Anubis has presented no evidence that Selig was reasonably notified th at Anubis expected her to compe nsate it for the information it provided or that th e information was disclosed t o her based on the understanding that an agreement be tween them was certain to occ ur. Most of the alleged confidential information was disclosed to Selig on Janu ary 10, well before any discussions about working together on the Downslope project began. It was not until more than two weeks later that Anubis reached out to Seli g to ask if she was interested in discussing the po ssibility of working with Anubis on Downslope. It was at this point that Anubis disclosed the remaining informati on and stated “If you are interested, let us know.” At the time the information was disclosed, therefore, there was clearly no understanding between the parties that an agreement to work together was expected. Indeed, the NDA drafted by Anubis notif ied Selig of the opposite – that neither party should expect a transactional agr eement to necessarily occur based on the parties’ discussions. We conclude the trial court properly granted summary judgment on Anubis’s claim for quantum meruit.–32– III. Breach of Fiduciary Duty In contending the trial court erred in granting summary judgmen t on its claim for breach of fiduciary duty, Anubis first argues that Selig fa iled to move for summary judgment on its claim that Selig owed it a fiduciary du ty based on the parties having formed a partnership. The trial court’s order g ranting summary judgment on Anubis’s claim for breach of fiduciary duty was bas ed on Selig’s second motion for summary judgment. In that motion, Selig stre ssed that, even though Anubis referred to her as a partner, “she never agreed t o be anyone’s partner” and “[s]he never partnered with Anubis.” She further stated th at the letter of intent drafted by Anubis “was not even close to being a partnership ag reement” and, even if it was, the agreement was nev er executed. In the portion of the motion specifically addressing Anubis’s fiduciary dut y claims, Selig summarized the history of the parties’ business dealings, including the fact that she never e xecuted the letter of intent, and argued “there is no foundation from which the court could recognize a fiduciary duty on these facts.” We conclude Selig’s motion suf ficiently challenged Anubis’s assertion that Selig had formed a partnership with Anu bis giving rise to a fiduciary duty. Anubis next argues it presented sufficient evidence to create a fact issue as to whether the parties created a p artnership. Specifically, Anubi s contends it presented evidence of the factors indicating the creation of a partnershi p under section 152.052(a) of the Texas Business Organizations Code. See T EX

. B US

. O RGS

. C ODE–33– A NN . § 152.052(a). These factors are irrelevant, however, where the parties ha ve agreed that no binding or enforceable obligations will be creat ed unless certain conditions are met. See Energy Transfer Partners, L. P. v. Enter. Prods. Partners,
L.P. , 593 S.W.3d 732, 741 (Tex. 2020). Such an agreement to not be bound absent the specified conditions is ordinarily conclusive on the issue of partnership formation. Id

. In this case, Selig and Anubis agreed they were not obligated t o work together on any transaction unless both pa rties signed a formal, written transactional contract. It is undisputed that this did not occur. Although performance of a condition precedent to forming a partnership can be waived, in determinin g whether such waiver has occurred, we consider only evidence directly tied to the condition precedent, and not the factors relevant to partnership creation set out in section 152.052(a). Id . As discussed above, the eviden ce conclusively shows Selig di d not waive her right to require a si gned contract before being oblig ated to work with Anubis. Accordingly, Selig negated the creation of a partnersh ip as a matter of law.
See id . Anubis asserts no other basi s upon which Selig would owe a f iduciary duty to Anubis. Accordingly, we conclude the trial court properly g ranted summary judgment in favor of Selig on this claim. IV. Fraud and Promissory Estoppel In its final challenge to the summary judgment, Anubis argues the trial court erred in dismissing its claims for fraud and promissory estoppe l because it presented–34– evidence that Anubis forewent s earching for other potential fun ding partners based on alleged misrepresentations m ade by Selig. The statements An ubis contends it relied upon were: (1) Selig’s re quest for permission to send t he Downslope script to her industry contacts; (2) Selig ’s emails to her contacts stati ng that she and Anubis were “on the hunt” for funding; (3) Selig’s email expressing co ncern that she not “get left in the dust” if she helped Anubis find funding or fun ded the movie herself; (4) Selig’s email stating that, if she helped Anubis raise capi tal, she expected compensation equal to that bei ng received by Anubis; and (5) Se lig’s emails stating that, after meeting independen tly with Russell, Lanning, and Ho bbs, she was going to “get this funded” and she wa s willing to meet with Anubis to “talk about how this gets structured.” Anubis argues that Selig’s “expressed enthus iasm for partnering on the project” induced it to “not solicit other funding source s to which it had
access.” A central element to both fraud and promissory estoppel is det rimental reliance. Gilmartin v. KVTV-Channel 13 , 985 S.W.2d 553, 558 (Tex. App.—San Antonio 1998, no pet.). To suppor t recovery, such reliance mus t be both reasonable and justified. Id . Reliance is justified only when a promise is sufficiently sp ecific and definite that it is reasonable to rely on it as a commitmen t to future action. Davis
v. Tx. Farm Bureau Ins. , 470 S.W.3d 97, 108 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Neither statements of hope nor expressions of expect ations can support reasonable reliance. Esty v. Beal Bank, S.S.B. , 298 S.W.3d 280, 305 (Tex. App.—–35– Dallas 2009, no pet.). We will not create a contract based on estoppel where none existed before. Gillum v. Republic Health Corp. , 778 S.W.2d 558, 570 (Tex. App.— Dallas 1989, no pet.). None of the statements Anubis poi nts to constitutes a specific and definite promise by Selig to partner with Anubis. Even taken together, they demonstrate nothing more than engagement in the discussions referred to in the NDA that could potentially lead to a signed transactional contract. “Expresse d enthusiasm” cannot take the place of a specific and definite promise upon which An ubis could have justifiably relied. See Montgomery Cty. Hosp. Dist. v. Brown , 965 S.W.2d 501, 503 (Tex. 1998) (only definite promise s, not vague assurances, can support justifiable reliance); see also Hui Ye v. Xiang Zhang , No. 4:18-cv-4729, 2020 WL 2521292, at *6–7 (S.D. Tex. May 15, 2020). This is particularly true give n the NDA’s provision that either party could opt out of going forward with the trans action at any point prior to signing a transactional agreement even if the other party to ok actions in anticipation that a written trans actional agreement would occur

. Cf. Davis , 470 S.W.3d at 109 (plaintiff could not justifiably rely on unaccept ed settlement offer that could be withdrawn at any time as basis for not filing action b efore limitations period expired). Anubis’s choice to not solicit other funding partner s was made at its own peril. Id

. In addition, it must be noted t hat Anubis was brought in as an investor in the Downslope project in October 2013 , but did not begin talking to Selig until January–36– 2014. It was not until January 27 that Brownlee began actual d iscussions with Selig about Downslope and suggested tha t the parties enter into a tra nsactional contract. On February 3, Brownlee stated that he understood if Selig did not want to continue with the project and, on Februa ry 5, Brownlee asked Selig if sh e was still interested in working with them. After sending that inquiry, Brownlee inf ormed Philco that Anubis’s agreement to fund Downslope was “not contingent on [Se lig’s] involvement.” The record contains no communications between An ubis and Selig after February 5. Three weeks later, Philco terminated its rel ationship with Anubis for failure to provide proof that it could supply the promised funds. Therefore, of the almost five months Anubis was involved in the Downslope pro ject, it was in discussions with Selig for only slightly more than one week. T he content of those discussions clearly presumes that Selig might not go forward wi th the project. We conclude Selig established there was no reasonable or justifiab le reliance by Anubis as a matter of law and the trial court properly granted summary judgment on Anubis’s claims for fraud and promissory estoppel. Special Appearance In its second issue, Anubis contends the trial court erred in granting the special appearance filed by Lanning and Hobbs and dismissing its claims against them for lack of jurisdiction. Anubis’s first amended petition alleged the trial court had personal jurisdiction over Lanni ng and Hobbs because they (1) m ade misrepresentations regarding Ph ilco’s rights and interests in D ownslope, (2) worked–37– with Anubis in connection with the Downslope project, in part, because of Anubis’s presence in Texas, (3) agreed to shoot the film at a Texas loca tion through a Texasbased studio in Dallas County and prepared budgets detailing a Texas-focused production, and (4) made intenti onal misrepresentations to Anub is in Texas with the intent that Anubis rely on them . Anubis further alleged that, even if the actions at issue were conducted by Lanning and Hobbs as agents for Philco, all of Philco’s contacts could be attributed to Lanning and Hobbs because Philc o was their alter ego and the men used Philco to perpetrate a fraud in Texas. Anubis sought a declaratory judgment on its alter ego allegati on and asserted claims agains t Lanning and Hobbs for unjust enrichment, breach of the letter of intent, fraud, a nd fraudulent transfer. Lanning and Hobbs filed a special appearance, supported by affi davits, contending they had insufficient contacts with Texas to support either general or specific jurisdiction of the trial court over them and Anubis h ad no evidence to support its jurisdictional alle gations. On appeal, Anubis does not contend the trial court had general jurisdiction ov er Lanning or Hobbs. It conte nds only that the trial court had specific jurisdiction based on Philco’s business deal ings with Anubis, including the NDA and letter of intent, which were attributable to Lanning and Hobbs based on an alter ego th eory of liability. Anubis furthe r asserts Lanning and Hobbs are independently liable for their own fraudulent and tor tious acts. Whether a trial court has pers onal jurisdiction over a nonresid ent defendant is a question of law we review de novo. Old Republic Nat’l Title Ins. Co. v. Bell , 549–38– S.W.3d 550, 558 (Tex. 2018). To re solve this question, however , the trial court frequently must resolve preliminary questions of fact . BMC Software Belgium, N.V.
v. Marchand , 83 S.W.3d 789, 794 (Tex. 2002). If, as here, the trial court does not issue findings of fact and conclusions of law with its special appearance ruling, all findings of fact necessary to support the ruling that are suppo rted by the evidence are implied. Id . at 795. When the appellate rec ord includes the reporter’s an d clerk’s records, these implied findings are not conclusive and may be c hallenged for legal and factual sufficiency on appeal. Id. Where jurisdictional fa cts are undisputed, we need not consider any implied findings of fact and consider onl y the legal question whether the undisputed facts establish jurisdiction. Old Republic , 549 S.W.3d at
558. Anubis does not dispute that the alleged agreements and busines s dealings made the basis of its claims against Lanning and Hobbs were bet ween Anubis and Philco. Anubis asserts that Philco’s contacts with Texas were sufficient to give rise to specific jurisdiction and are attributable to Lanning and Ho bbs on an alter ego theory of liability. Even assuming Philco’s contacts were suff icient to subject it to jurisdiction in this state, we conclude Anubis failed to meet i ts burden to show an alter ego relationship. “Jurisdiction over an individual cannot, as a general rule, be based upon jurisdiction over a corporation.” Wilmington Trust, Nat’l Ass’n v. Hsin-Chi-Su , 573 S.W.3d 845, 855 (Tex. App.—Housto n [14th Dist.] 2018, no pet.). The party–39– seeking to pierce the corporat e veil for jurisdictional purpose s has the burden to present evidence demonstrating the alter ego relationship. BMC Software 83 S.W.3d at 798. An individual’s status as an officer, director, or sha reholder of an entity, standing alone, is not enough to support an alter ego finding. Wilmington Trust , 573 S.W.3d at 855. The plaintiff must prove the individual exercis es atypical control over the internal business operations and affairs of the corpor ation that is inconsistent with his role as owner, director, or shareholder. Id . Factors relevant to the determination of an alter eg o relationship for jurisdiction al purposes include the degree to which corporate and individual property have been kep t separate, the amount of financial interest, ow nership, and control the indivi dual maintains over the corporation, and whether the corporation has been used for personal purposes.
Id . Ultimately, for a court to find personal jurisdiction under an alter ego theory, the evidence in the record must show that the individual and the en tity cease to be separate so that the corporate fi ction should be disregarded to prevent fraud or injustice. BMC Software, 83 S.W.3d at 799. A conclusory allegation that a nonresident defendant used a corporation “as a sham to perpetra te fraud” is insufficient to pierce the veil for jurisdictional purposes whe re the plaintiff does not plead or otherwise offer eviden ce of any facts to establish how a defendant allegedly used the corporation to perpetrate fraud. Booth v. Kontomitras , 485 S.W.3d 461, 483 (Tex. App.—Beaumont 2016, no pet.).–40– The primary evidence submitted by Anubis on the alter ego issue was deposition testimony by Lanning a bout a company formed by one o f his sons to produce films called ForLan Unde rground. ForLan Underground wa s originally named Philco Film Productions, Lt d. (“PFP”) and, from March 24, 2015 to February 14, 2018, PFP had no employees and no bank account. Lanning st ated PFP was “literally a company name” that “remained dormant until it was required to do something for my son.” When asked why the company was given a name similar to Philco’s, Lanning responded that “the hope was that we would be successful in the same way as one hoped that Philc o Films, Limited would be succe ssful.” Lanning continued by stating “the opposit e” occurred and “[i]t was a do rmant company that, in the end, didn’t function.” On appeal, Anubis attempts to us e this testimony as evidence th at Philco was a “meaningless paper entity.” None of this testimony, however, concerned Philco. It concerned only PFP. Anubis points to a reference to “Philco Film Productions, Ltd.” in the 2013 contract between Philco and SCTVA as evidence of “a failure to maintain corporate separateness” between PFP and Philco. When asked about this reference, Lanning testified it was a typo and the contract sho ws he signed on behalf of Philco. Additionally, the record suggests that PFP was not created until 2015. Even if PFP existed in 2013, this evidence would go to show onl y a potential alter ego relationship between Philco and PFP, not Philco and Lanning or Hobbs.–41– Finally, Anubis relies on Lanni ng’s testimony that he and Hobb s used Philco as “the vehicle” to seek financing for another Kubrick Film, an d that he was authorized to represent Philco as a producer despite no longer being an officer of the company. Anubis argues that this testimony, “with no mention o f corporate formalities,” demonstrates an al ter ego relationship. Lanning’ s “failure to mention” corporate formalities does not constitute proof that such forma lities did not exist, particularly when the deposition evidence Anubis submitted as p roof contained no questions posed to Lanning regarding corporate formalities. No r does this testimony show that Lanning or Hobbs used Ph ilco for personal purposes. Indeed, Anubis presented no evidence whatsoever regarding Philco’s operations. We conclude Anubis failed to meet its burde n to show an alter ego relations hip such that Philco’s alleged contacts with Texas cou ld be attributed to Lanning and Hobbs. This does not end our analysis, however. As Anubis correctly notes, even if all of a corporate officer’s or employee’s contacts were perfor med in a corporate capacity, the agent is not shiel ded from the exercise of specif ic jurisdiction if he engaged in tortious or fraudulent conduct for which he may be h eld personally liable. Tabacinic v. Frazier , 372 S.W.3d 658, 668 (Tex. App. —Dallas 2012, no pet.). In this case, Anubis asserted three claims sounding in tort agains t Lanning and Hobbs: unjust enrichment, fraud, and fra udulent transfer. But, as to each of these causes of action, Anubis provides little, if any, explanation as to how t hese claims arise from Lanning’s or Hobbs’s alleged contacts with Texas. For each cla im, Anubis merely–42– states “This cause of action is related to [Anubis’s] allegatio ns concerning The Downslope and Lanning and Hobbs’s intentional acts directed toward the f orum.” Specific jurisdiction requires us to analyze jurisdictional con tacts on a claim-byclaim basis. Moncrief Oil Int’l, Inc. v. OAO Gazprom , 414 S.W.3d 142, 150 (Tex. 2013). Anubis makes no argument, and cites no authority, to sh ow how the trial court had jurisdiction over its i ndividual tort claims. When a party fails to adequately brief a complaint, the issue is waived on appeal. Washington v. Bank of New York , 362 S.W.3d 853, 854–55 (Tex. App. —Dallas 2012, no pet.). Furthermore, specific jurisdiction is not established merely be cause a nonresident “directed a tort” at the forum state. Michiana v. Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 790–92 (Tex.2005) . Nor is injury to a forum resident a sufficient connection to invoke jurisdiction. TV Azteca v. Ruiz , 490 S.W.3d 29, 42 (Tex. 2016). Our a nalysis looks to the defendant ’s contacts with the forum state itself, not the defendant’s contacts with persons w ho reside there. Id

. The defendant’s conduct must connect him to the forum in a mean ingful way. Id

. For a Texas court to exercise specific jurisdiction over a defe ndant, the defendant's purposeful contacts with the sta te must be substantially connec ted to the operative facts of the litigation or form the basis of the cause of actio n. Old Republic , 549 S.W.3d at 559–60. Anubis’s unjust enrichment claim, like its quantum meruit claim against Selig, appears to be based upon the intr oduction of Selig to Philco. The evidence shows–43– that it was Anubis’s choice to i nitiate discussions with Selig, a California resident, and it was Selig who first appro ached Lanning and Hobbs. That Lanning and Hobbs chose to respond to an unsolicited invitation to do business wi th a California resident is not conduct with a meaningful connection to the State of Tex as. In its brief, Anubis points to a single alleged misrepresentat ion as the basis for the trial court’s jurisdic tion over its fraud claim. Accor ding to Anubis, Lanning and Hobbs misrepresented that Philco had the rights to produce Downslope. Anubis’s own evidence submitted in response to the special appe arance included documents showing the Kubrick estate authorized Philco, Lanning , and Hobbs to “seek arrangements” for the pr oduction of Downslope. No party appears to dispute that Philco had the capacity to enter into contracts for the pr oduction of Downslope and Anubis’s primary claims ag ainst Lanning and Hobbs assume th at it did. Accordingly, Anubis has failed to demonstrate how this alleged “misrepresentation” is substantially connected to the operative facts of the litiga tion or forms the basis of a cause of action. In its fraudulent transfer claim, Anubis alleged that, upon inf ormation and belief, Philco orchestrated the t ransfer of its rights in the D ownslope project to PFP and this transfer was made wit h the intent to defraud Anubis. Anubis makes no argument to show how the alleged transfer of an asset from one European company to another, assuming it occurred, creates sufficient contact wi th the State of Texas to make Lanning and Hobbs subject to jurisdiction. See Ruiz , 490 S.W.3d at 43–44– (courts cannot base specific jurisdiction on fact that defendan t knows brunt of injury will be felt by particular resid ent in forum state). Because P hilco’s contacts cannot be attributed to Lanning and Hobbs, and Anubis failed to show s ufficient jurisdictional contacts giving ris e to its tort claims against the men, we conclude the trial court did not err in gran ting Lanning and Hobbs’s special appearance. Motion for Sanctions In her cross-appeal, Selig contends the trial court abused its discretion in refusing to grant her motion fo r sanctions against Anubis and i ts counsel. Selig argues that rule 13 of the Texas Rules of Civil Procedure manda tes an award of sanctions because Anubis and its counsel knew the claims assert ed against her were groundless when they were filed and this suit was brought in ba d faith and solely for the purpose of harassment. Rule 13 authorizes the imposition of sanctions against an attor ney, a party, or both, who filed a pleading that is: (1) groundless and brought in bad faith; or (2) groundless and brought to harass. See T EX

. R. C IV

. P. 13. Courts presume that pleadings, motions, and other papers are filed in good faith, a nd the party moving for sanctions has the burden of overcoming this presumption. GTE Commc’n Sys. Corp. v. Tanner , 856 S.W.2d 725, 731 (Tex. 1993). A pleading is “groundless” if it has no basis in law or fact and is not warranted by a good fait h argument for the extension, modification, or reversal of existing law. T EX

. R. C IV

. P. 13; Thielmann
v. Kethan , 371 S.W.3d 286, 294 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).–45– “Bad faith” requires the conscious doing of a wrong for a disho nest, discriminatory, or malicious purpose. Stites v. Gillum , 872 S.W.2d 786, 794–96 (Tex. App.—Fort Worth 1994, writ denied). A party acts in bad faith if he has been put on notice that his understanding of the facts ma y be incorrect and he does not make reasonable inquiry before pursuing the claim further. Robson v. Gilbreath , 267 S.W.3d 401, 407 (Tex. App.—Austin 2008, pet. denied). Bad faith does not exist when a party merely exercises bad judgment or is negligent. Thielmann , 371 S.W.3d at 294. To “harass” means to annoy, alarm, and verbally abus e another pers on. Id

. In deciding whether a pleading was filed in bad faith or for th e purpose of harassment, the trial court is r equired to consider the acts or omissions of the represented party or counsel, not merely the legal merit of a p leading or motion.
Parker v. Walton , 233 S.W.3d 535, 540 (Tex. App.—H ouston [14th Dist.] 2007, no pet.). The court examines the signer’s credibility, taking int o consideration all the facts and circumstances available at the time of the filing, an d it may consider the entire history of the case before it. Home Owners Funding Corp. of Am. v. Scheppler , 815 S.W.2d 884, 889 (Tex. App.—C orpus Christi–Edinburg 1991, no writ); Great W. Drilling, Ltd. v. Alexander , 305 S.W.3d 688, 698 (Tex. App.— Eastland 2009, no pet). Ultimately , the trial court is in the best position to determine whether sanctionable conduct has occurred and a decision not to impose sanctions generally will not be reversed f or an abuse of discretion. See Manning v. Enbridge Pipelines (East Tx.) L.P. , 345 S.W.3d 718, 728 (Tex. App.—Beaumont 2011, pet.–46– denied); Allstate Ins. Co. v. Garcia , No. 13-02-092-CV, 2003 WL 21674766, at *2 (Tex. App.—Corpus Christi–Edinbur g 2003, no pet.) (mem. op.). Although Selig was successful in having Anubis’s claims against her dismissed, she made no showing that Anubis made statements in i ts pleadings that it knew to be false. The parties simply had different interpre tations of the legal effect of the facts. Anubis has made extensive arguments to support i ts positions and, while we have concluded those arguments are without merit, we do not view them as frivolous. Selig points to an email excha nge between Anubis and CMA Entert ainment in July 2014 to show that the pu rpose of the lawsuit was solely to harass her. In the email exchange, Brownlee and Tr oy Allen with CMA discussed how to communicate with Selig and Philco about the Downslope Project f ollowing Philco’s termination of its relationship with Anubis. Brownlee stated h e thought it would be good for CMA to “weigh in officially” on the situation to show that Anubis and CMA are “communicating and acting as one party.” Brownlee also stated he wanted a paper trail. In response to a question from Allen regarding whether CMA should respond to an email chain on which they had been blind copied, Brownlee responded, “I actually think you should write an entirely new email. This way they will have multiple points of contact to deal with and not just one party. Let’s make this as difficult as possible for them.”–47– Selig focuses on the last sentence in this exchange to argue th at the sole purpose of this lawsuit was to make things “as difficult as pos sible” for her. The trial court was within its discr etion, however, to conclude tha t Brownlee’s statement did not reflect a belief that Anubis had no valid claims agains t Selig, but rather his belief that it did, combined with a desire to force Selig and P hilco to explain their actions to multiple parties. Sanc tions should only be assessed “in those egregious situations where the worst of the bar uses our honored system f or ill motive without regard to reason and the guiding principles of the law.” Thielemann , 371 S.W.3d at 295 (quoting Dyson Descendant Corp. v. Sonat Expl. Co. , 861 S.W.2d 942, 951 (Tex. App.—Houston [1st Dist.] 1993, no writ). Based on the re cord before us, we cannot conclude the trial court a bused its discretion in refusi ng to award sanctions. We affirm the trial court’s judgments and orders.

190817F.P05 /Amanda L. Reichek/ AMANDA L. REICHEK JUSTICE–48– 

# S

Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ANUBIS PICTURES, LLC AND CMA FILMS, LLC, Appellants
No. 05-19-00817-CV V. LAUREN SELIG, S HAKE & BAKE PRODUCTIONS, STEPHEN LANNING, AND PHILIP HOBBS, Appellees On Appeal from the 162nd Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-17-17579. Opinion delivered by Justice Reichek. Justice Pedersen, III participating.

In accordance with this Court’s opinion of this date, we AFFIRM (1) the judgments of the trial court dismissing the claims made by ANUB IS PICTURES, LLC and CMA FILMS, LLC against LAUREN SELIG and SHAKE & BAKE PRODUCTIONS, (2) the order of the trial court granting the spec ial appearances of STEPHEN LANNING and PHILIP HOBBS, and (3) the order of the tria l court denying the motion for sanctions brought by LAUREN SELIG and SH AKE & BAKE PRODUCTIONS against ANUBIS PICTURES, LLC and its counsel. It is ORDERED that each party bear its o wn costs of this appeal.
Judgment entered March 3, 2021