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CAUSE NO. 2017-43835
SAM ALAM IN THE DISTRICT COURT
Plaintiff,
v
ANDREW GOMES, M.D.,
MAHENDRA AGRAHARKAR, MD, HARRIS COUNTY, TEXAS
AJAY CHOUDHRI, MD, NATIONAL
INTERVENTIONAL RADIOLOGY
PARTNERS, PLLC, NIRP
MANAGEMENT, LLC, NIRP
PASADENA, PLLC, NIRP
SUGARLAND, PLLC JUDICIAL DISTRICT
Defendants.
DEFENDANTS AGHRAHARKAR and CHOUDHRI
MOTION FOR SUMMARY JUDGMENT
Defendants Mahendra Agraharkar, M.D., (“Agraharkar”) and Ajay Choudhri, M.D.
(“Choudhri”) (collectively “Movants”) file this Motion for Traditional and No Evidence Summary
Judgment seeking the summary dismissal of the claims for Common Law Fraud, Breach of
Fiduciary Duty, Fraudulent Inducement, Fraudulent Misrepresentation, Fraud by Nondisclosure,
Negligent Misrepresentation, Negligence, DTPA Violations, Tortious Interference with
Contractual Relations, Tortious Interference with Prospective Relations, and Conspiracy brought
Sam Alam and Drisoline.com, Inc. (collectively, “Plaintiff”) as alleged in Plaintiff’s First
Amended Petition (“Petition”), and in support thereof respectfully show as follows:
UMMARY OF THE OTION
1. Movants were not parties to any agreements with Plaintiff, nor to any purported
agreements between Plaintiff and Defendant Andrew Gomes, M.D. They were strangers to each
other and the situation, innocent invitees who are now caught up in legal dramas borne out of
purported transactions that preceded their introductions. Their incontrovertible status as outsiders
precludes Plaintiff from successfully maintaining against them the claims made the subjects of this
GRAHARKAR HOUDHRI MSJ AGE 1
Motion – claims that must be summarily dismissed as demonstrated by the evidence Movants
present herein, and the absence of evidence that Plaintiff will be able to present in Response.
ACKGROUND
2. Plaintiff has brought claims against Movants for Common Law Fraud, Breach of
Fiduciary Duty, Fraudulent Inducement, Fraudulent Misrepresentation, Fraud by Nondisclosure,
Negligent Misrepresentation, Negligence, DTPA Violations, Tortious Interference with
Contractual Rights, Tortious Interference with Prospective Relations, and Conspiracy (collectively
“Baseless Claims”), but does not offer even a skeletal outline of facts that would support those
claims. See Petition. In the “Factual Background” section of his Petition, Plaintiff spends the first
19 paragraphs discussing only his interactions with Defendant Andrew Gomes, M.D., and
asserting that he and Defendant Gomes entered into a business agreement as of March 10, 2015
(the “Purported Plaintiff/Gomes Agreement”).See Petition paras. 15 33. Movants finally appear
in Paragraph 34 of the Petition and do so not as bad actors but as alleged recipients of
information. See Petition para. 3. Finally in paragraphs 35 and 36 Plaintiff makes the seemingly
dundant allegation that Movants “utilized the information provided by Drisonline to open
multiple healthcare facilities around Houston,” and have “established successful healthcare
facilities due to the unlawful use of Drisonline’s trade secrets, proprietary information, and
confidential information See Petition at paras. 35 36. Finally Plaintiff complains that Movants
have not honored an alleged agreement that they are not parties to. See Petition at para. 37.
3. The absence of facts supporting Plaintiff’s Baseless Claims reveals the impropriety of
bringing these causes of action against Movants. That impropriety is magnified when the following
uncontroverted testimony is considered, testimony that reveals the absence of interactions between
Plaintiff and Movants and consequently the absence of the foundational facts required for
Plaintiff’s Baseless Claims:
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Concerning Agraharkar:
Plaintiff sought Agraharkar’s involvement as a landlord and introduced Agraharkar to
Defendant Andrew Gomes, M.D. See Ex. A, Deposition of S. Alam 106-07:24-6See Ex.
B, Deposition of M. Agraharkar, 28:14-16 See Ex. C, Deposition of A. Choudhr , 28:1
Agraharkar had no pre existing relationship with Choudhri or Defendant Gomes prior to
being introduced to them by Plaintiff. See Ex. B, Deposition of M. Agraharkar, 34:9-11.
Agraharkar understood Plaintiff to be someone who was just introducing him to people
(specifically, Choudhri and Defendant Gomes) and not someone coming up with a business
plan. See Ex. B, Deposition of M. Agraharkar, 28:14-16.
Agraharkar had no direct or substantive communications with Choudhri after the initial
introductory meeting. See Ex. B, Deposition of M. Agraharkar, 44:10-18 Ex. C,
Deposition of A. Choudhri, 28:7-21.
The first time Agraharkar learned of Plaintiff’s claim of ownership in the OBL was when
he was sued; Plaintiff never made that representation during any meeting. See Ex. B,
Deposition of M. Agraharkar, 45:9-25.
The first time Agraharkar saw the March 10, 2015, email that Plaintiff contends gives him
a 25% equity interest in a business was at his deposition in 2020. See Ex. B, Deposition
of M. Agraharkar, 165:1-21.
Concerning Choudhri:
Prior to meeting Plaintiff in either 2014 or 2015 with Defendant Gomes, Choudhri had not
known Plaintiff. See Ex. C, Deposition of A. Choudhri, 20-21:25-10.
Choudhri never had any discussions directly with Plaintiff concerning interventional
radiology programs with OBLs, and barely interacted with Plaintiff after his first physical
meeting with himSee Ex. C, Deposition of A. Choudhri, 25:1-2269:6-8.
Choudhri d Defendant Gomes had been discussing the concept of OBLs for years prior
to 2015; OBLs are not a new idea and there are a number of them existing in Houston.
Much of the information related to them is common knowledge. See Ex. C, Deposition of
A. Choudhri, 16 -23; 17:7-10;47:13-22.
The first time Choudhri saw any proposed business plan from Plaintiff was at his
deposition in 2020. See Ex. C, Deposition of A. Choudhri, 55:5-10.
The business model proposed by Plaintiff is “completely different” than what Defendant
NIRP is doing and “not even close” to the NIRP business model NIRP actually did the
opposite of what was suggested in the business model. See Ex. C, Deposition of A.
Choudhri, 55:14-22; 61-62:15-1.
Choudhri was not involved in any discussions of forming legal entities with Plaintiff and
would not have been a member of any such company. See Ex. C, Deposition of A.
Choudhri, 73:1-12.
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All of this testimony reveals that Movants had no relationship with Plaintiff and had no substantive
interactions with Plaintiff that would give rise to any claims for Common Law Fraud, Breach of
Fiduciary Duty, Fraudulent Inducement, Fraudulent Misrepresentation, Fraud by Nondisclosure,
Negligent Misrepresentation, Negligence, DTPA Violations, and Conspiracy.
TANDARD OF EVIEW
4. In a traditional motion for summary judgment, the movant must present evidence to the
court establishing his right to the relief sought. ROC 166a. A defendant seeking
summary judgment must either (1) disprove at least one element of each of the plaintiff’s causes
of action, or (2) conclusively establish each essential element of any affirmative defense, thereby
rebutting the plaintiff’s cause of action. Cathey v. Boothe, 900 S.W.2d 339, 341 (Tex. 1995).
Uncontroverted evidence favoring the movant is to be taken as true. Casey v. Amarillo Hosp.
Dist., 947 S.W.2d 301, 303 304 (Tex. App. Amarillo 1997, pet. denied). If the movant
establishes that there is no genuine issue of material fact as to any defense raised, he is entitled to
summary judgment. See Park Place Hospital v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995).
5. With respect to a no evidence motion for summary judgment, the non movant must
raise a genuine issue of material fact about the element challenged by the no-evidence motion.
ROC. 166a(i). The trial court must resolve all reasonable doubts about the facts in
favor of the nonmovant. Lehrer v. Zwernemann, 14 S.W.3d 775, 777 (Tex. App. Houston [1
Dist.] 2000, pet. denied). A non movant produces more than a scintilla of evidence when it rises
to a level that would enable reasonable and fair minded people to differ in their conclusions.
Ridgway v. Ford Motor Co., 135 S.W.3d 598, 601 (Tex. 2004).
IV. RADITIONAL OTION FOR UMMARY UDGMENT
OMMON AW RAUD AND RAUDULENT ISREPRESENTATION
Common law fraud is comprised of (1) simple fraud, sometimes referred to as fraudulent misrepresentation, and
(2) fraudulent inducement. Because Plaintiff’s claims for common law fraud and fraudulent misrepresentation are
not truly two separate causes of action, Movants address the doubly plead cause of action as one.
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Plaintiff alleges that “Defendants” made representations to Plaintiff regarding business
agreements that were “integral” to his agreement to enter into a business relationship “with
Defendants.” See Petition, paras. 65-66.He also alleges that “Defendants made fraudulent
misrepresentations…” See Petition, para. 90. Plaintiff does not offer any specificity as to these
alleged representations. See Petition, paras. 65-6690-91.
These contentions exist in opposition to Plaintiff’s other statements and uncontroverted testimony:
When asked to “identify all misrepresentations Defendants made” to him, Plaintiff
only provided representations by Defendant Gomes; none by Movants. See Ex. D,
Responses to Interrogatories (No. 11).
Agraharkar never discussed being a member of NIRP [the OBL at issue] with
Plaintiff. See Ex. B, Deposition of M. Agraharkar, 75-76:21-2.
Choudhri never discussed anything about NIRP or interventional radiology with
Plaintiff. See Ex. C, Deposition of A. Choudhri, 25:1-17.
Neither Agraharkar nor Choudhri were parties to the March 10, 2015, email that
Plaintiff contends creates the Purported Plaintiff/Gomes Agreement See Ex. E,
March 10, 2015 Email.
7. A cause of action for common law fraud requires, as the very first element, that the
defendant make a representation to the plaintiff that is both material and false. In re FirstMerit
Bank, 52 S.W.3d 749, 758 (Tex. 2001); Ernst & Young v. Pac. Mut. Life Ins. Co 51 S.W.3d 573,
577 (Tex. 2001). Uncontroverted evidence, including Plaintiff’s own statements, all show that
Movants made no representations to Plaintiff. It is axiomatic then that they did not make “material
and false statements” or false statements that caused Plaintiff to enter into a business relationship
with them. The latter is confirmed by the absence of a business relationship between Plaintiff and
Movants – another item about which he complains. Reasonable minds could never differ as to the
impact of this evidence; Plaintiff cannot ever establish that Movants made an affirmative
representation to him, upon which he relied, in order to go into business with him. Because the
evidence precludes establishing element one, summary dismissal of the claims of common law
fraud and fraudulent misrepresentation must be granted.
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8. If Plaintiff’s own admission was somehow deemed insufficient to mandate the dismissal
of his fraud claim, then email discussions that mandate dismissal can be considered. Plaintiff
contends that his March 10, 2015 email with Defendant Gomes created the Purported
Plaintiff/Gomes AgreementSeePetition , para. 23; Ex. E, March 10, 2015 Email. Movants were
not parties to that email and could not have made representations in connection with it. See Ex. E,
March 10, 2015 Email. In fact, Agraharkar was brought in by Plaintiff for the possibility of serving
as a landlord for the potential OBL – not as a partner. See Ex. A, Deposition of S. Alam 106
07:24-6; See Ex. B, Deposition of M. Agraharkar, 28:14-16; See Ex. C, Deposition of A. Choudhri,
28:1-13. Agraharkar did not meet Defendant Gomes until March 23, 2015 thirteen days after
the Purported Plaintiff/Gomes Agreement. See Ex. F, March 24, 2015 Email. Moreover, the
March 24, 2015, email from Defendant Gomes to Agraharkar shows that Agraharkar was not
intended to be a part of any business between Defendant Gomes and Plaintiff, but rather a landlord
and potential source of referral business. See Ex. F, March 24, 2015 Email. Similarly, Choudhri
did not meet Plaintiff or Agraharkar until April 2015 – approximately a month after Plaintiff
contends, he and Defendant Gomes entered into the Purported Plaintiff/Gomes Agreement. See
Ex. G, April 10, 2015 Email. Neither Agraharkar nor Choudhri, who arrived after the Purported
Plaintiff/Gomes Agreement, could have induced Plaintiff to enter into business. There is no
feasible way for Plaintiff to satisfy element one against Movants and his claim for common law
fraud/fraudulent misrepresentationagainst them must be dismissed.
REACH OF IDUCIARY UTY
Plaintiff contends that Movants breached a fiduciary duty to him via false
representations. See Petition, para. 73 74. This claim fails because (1) no fiduciary relationship
exists between Plaintiff and Movants, and (2) Movants did not make any false representations to
Plaintif
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No Fiduciary Relationship
10. Plaintiff had no pre existing relationship with either of Movants. Although he was
acquainted with Agraharkar prior to 2015, there had been no business dealings between the two of
them. See Ex. B, Deposition of M. Agraharkar, 11:5-25. Plaintiff had approached Agraharkar
about business ventures after learning about Agraharkar’s involvement in the dialysis business
but the two never did any business and Agraharkar did not even take Plaintiff’s proposals very
seriouslySee Ex. B, Deposition of M. Agraharkar. 11:5-25; 24:2-25.Choudhri had not known
Plaintiff prior to coming to Houston to meet with him [in April 2015]. See Ex. C, Deposition of
A. Choudhri, 21:8-10. The law is clear and unequivocal: there is no fiduciary duty between
strangers or loose acquaintances.
11. prove an action for breach of fiduciary duty, laintiff must establish that Movants
were Plaintiff’s fiduciariesKinzbach Tool Co. v. Corbett Wallace Corp., 160 S.W.2d 509, 513
14 (Tex. 1942). A fiduciary relationship is an extraordinary one and is not lightly created.Kline
v. O'Quinn, 874 S.W.2d 776, 786 (Tex. App. Houston [14 Dist.] 1994, writ denied),cert.
denied15 U.S. 1142 (1995); Pabich v. Kellar, 71 S.W.3d 500, 505 (Tex. App. Fort Worth
2002, pet denied). Moreover, for there to be a fiduciary relationship in a business transaction, the
fiduciary relationship must exist before and apart from the agreement that is the basis for the suit.
Willis v. Donnelly, 199 S.W.3d 262, 277 (Tex. 2006).
12. The uncontroverted evidence establishes that no fiduciary relationship (and really, no
relationship of any meaning) existed between Plaintiff and Movants prior to March 10, 2015, the
date of the Purported Plaintiff/Gomes Agreement See Ex. B, Deposition of M. Agraharkar, 11:5
See Ex. C, Deposition of A. Choudhri, 21:8-10. Plaintiff’s Responses to Interrogatories
confirm that no fiduciary relationship existed; when asked to describe the basis for his claim of
fiduciary duty, Plaintiff only asserted that Defendant Gomes – and not Movants was his partner.
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See Ex. D, Responses to Interrogatories (No. 6). He did not describe any relationship of any sort
with Movants, thereby tacitly admitting that none existed. See Ex. D, Responses to Interrogatories
(No. 6). evidence, about which reasonable minds could not disagree, mandates the dismissal
of Plaintiff’s claim for breach of fiduciary duty.
No False Representations
13. Ignoring the fact that the evidence disproves the existence of a fiduciary relationship,
Plaintiff’s own admissions demonstrate that there was no breach via “false representations” as he
alleges. See Petition, para. 73-74. When asked to “identify all misrepresentations Defendants
made” to him, Plaintiff only provided representations by Defendant Gomes; none by Movants.
See Ex. D, Responses to Interrogatories (No. 11). Without any false representations, there cannot
have been a breach of duty through false representations, and Plaintiff’s claim for breach of
fiduciary duty must be summarily dismissed.
RAUDULENT NDUCEMENT
14. Plaintiff alleges that Defendants fraudulently induced him to enter into a contract to
do business with them and provide confidential information to them. See Petition, para. 82.
Plaintiff’s claim cannot survive summary judgment because Plaintiff never entered into a contract
to do business with Movants.
15. To establish a claim for fraudulent inducement, Plaintiff must prove he actually
entered into a binding agreement based on a false representation. Haase v. Glazner 62 S.W.3d
98 (Tex. 2001)(emphasis supplied) “’Texas law has long imposed a duty to abstain from
inducing another to enter into a contract through the use of fraudulent misrepresentations.’
Certainly, there can be no breach of that duty when one is not induced into a contract.” at
(quoting Formosa Plastics v. Presidio Engineers, 960 S.W.2d 41 (Tex. 1998)).
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There is no binding agreement between Movants and Plaintiff; indeed, Plaintiff only
alleges the existence of a contract between himselfand Defendant Gomes. SeePetition, para.
Movants’ names do not appear on the March 10, 2015 email that Plaintiff claims establishes the
Purported Plaintiff/Gomes AgreementSee Ex. E, March 10, 2015 Email. Movants’ names do
not appear as potential partners in any documents that were provided to attorney Jon Spires before
discord between Plaintiff and Defendant Gomes caused the attorney to terminate his representation
of them. See Ex. June 23, 2015 EmailThe absence of Movants’ names from any of these
documents is consistent with their intentions; Agraharkar testified unequivocally that he never had
any plans of becoming a member of NIRP with Plaintiff, and Choudhri testified that he was not
even aware of conversations regarding corporations and would not have been part of an entity.See
Ex. B, Deposition of M. Agraharakar, 75 76:21 ; Ex. C, Deposition of A. Choudhri, 73:1
There is no evidence even suggesting the existence of a binding agreement between Plaintiff and
Movants.
There is also no evidence suggesting the existence of a fraudulent misrepresentation
by Movants. When asked to describe the factual basis for his claim that Defendants fraudulently
induced Plaintiff to contrac , Plaintiff provided 63 lines of textSee Ex. D, Response to
Interrogatories (No. 7).In all those lines, Plaintiff does not offer one word much less one
sentence describing any representation (much less a false one) made by Movants (much less a
false one that he relied on to enter a contract). See Ex. D, Response to Interrogatories (No. 7)
aintiff instead affirms the reality already established by the evidence incorporated into this
Motion: Movants’ tangential involvement in the situation occurred after March 10, 2015 and
thus after the date Plaintiff claims the Purported Plaintiff/Gomes Agreement was created, and thus
could not have induced Plaintiff to contractSee Ex. D, Response to Interrogatories (No. 7).
GRAHARKAR HOUDHRI MSJ AGE
Whether or not there was a contract between Plaintiff and Defendant Gomes is
irrelevant to the present issue. The undisputed facts show that there was no contract between
Plaintiff and Movants and no representations by Movants. The Texas Supreme Court has decreed
in such circumstances there can be no cause of action for fraudulent inducement; Plaintiff’s claim
must be summarily dismissed.
RAUD BY ONDISCLOSURE
Plaintiff claims that Defendants concealed or failed to disclose facts to Plaintiff about
Defendants’ intentions to ultimately not do business with Plaintiff. SeePlaintiff’s First Amended
Petition at Para. 98. He further alleges that the “facts were material in Plaintiffs’ decision enter
into business dealings with Defendants and provide confidential information to Defendants.” See
Plaintiff’s First Amended Petition Para. 100 (italics added). To prove his claim that Movants
committed fraud by nondisclosure, Plaintiff will have to establish – among other things that
Movants (1) had a duty to disclose information that they concealed, and (2) that Plaintiff actually
relied on the non-disclosureBradford v. Vento, 48 S.W.3d 749, 754 55 (Tex. 2001); Insurance
Co. of N. Am. v. Morri , 981 S.W.2d 667, 674 (Tex. 1998); American Tobacco Co. v. Grinnell
951 S.W.2d 420, 436 (Tex, 1997). Clear evidence prevents Plaintiff from ever being able to
establish these first two elements
Duty to Disclose
20. To prove action for fraud by nondisclosure, the plaintiff must establish the defendant
had a duty to disclose because (1) there was a fiduciary or other special relationship requiring
disclosure, (2) the defendant discovered new information that made an earlier representation
misleading or untrue, (3) the defendant created a false impression by making a partial disclosure,
or (4) the defendant voluntarily disclosed some information and therefore had a duty to disclose
the whole truth. Hoggett v. Brown, 971 S.W.2d 472, 487 (Tex. App. --- Houston [14 Dist.] 1997,
GRAHARKAR HOUDHRI MSJ AGE 10
pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 299 (Tex. App. Texarkana 2000, pet.
denied). None of these circumstances exist here.
Plaintiff and Movants were not in a fiduciary relationship; they were mere
acquaintances or strangers prior to the Purported Plaintiff/Gomes Agreement that Plaintiff claims
came into existence on March 10, 2015. See Ex. B, Deposition of M. Agraharkar, 11:5-25; 24:2
25; Ex. C, Deposition of A. Choudhri, 21:8-10.
22. Movants made no representations to Plaintiff about going into business with him at
all, and thus could never need to correct his understanding by disclosing their “intentions not to do
business with Plaintiff.” See Petition, para. 98; Ex. B, Deposition of M. Agraharkar, 75-76:21-
(Agraharkar never discussed being a member of NIRP with Plaintiff); Ex. C, Deposition of A.
Choudhri, 25:1 17 (Choudhri never discussed anything about NIRP or interventional radiology
with Plaintiff). Plaintiff’s own evidence confirms the absence of any representation by Movants
to do business with Plaintiff and thus eliminates any possible duty Movants had to redress that.
See Ex. D, Response to Interrogatories (No. 7)(attributing all representations exclusively to
Defendant Gomes).
23. Without proof of this element, Plaintiff’s claim for fraud by nondisclosure fails.
Detrimental Reliance
Plaintiff is also required to and cannot prove that he relied on any omission by
MovantsSchlumberger Tech. v. Sw anson, 959 S.W.2d 171, 181 (Tex. 1997). To have relied on
an omission, Plaintiff would have had to have entered into a contract with Movants. There is no
evidence of a contract between Plaintiff and Movants and frankly, no allegation of a contract
between Plaintiff and Movants. See Petition, para. 41. Movants were not parties to or even
referenced in the March 10, 2015 email that Plaintiff claims establishes the Purported
Plaintiff/Gomes AgreementSee Ex. E, March 10, 2015 Email. Movants were never going to be
GRAHARKAR HOUDHRI MSJ AGE 11
owners of any company formed by Plaintiff and Defendant Gomes. See Ex. D, Responses to
Interrogatories (No. 3)(“On March 10, 2015, Dr. omes and Plaintiff entered into an agreement
in which Plaintiff would own 25% of equity/shareholdings and he would own 75% of equity in a
Company to be formed by attorney Jon Spires. Ex. H, June 23, 2015 Email. Agraharkar testified
unequivocally that he never had any plans of becoming a member of NIRP with Plaintiff and
Choudhri testified that he was not even aware of conversations regarding corporations and would
not have been part of an entity. See Ex. B, Deposition of M. Agraharakar, 75-76:21-2; Ex. C,
Deposition of A. Choudhri, 73:1-12.
Irrespective of whatever theoretical business arrangement might have been
contemplated or created between Plaintiff and Defendant Gomes, there was no contract between
Plaintiff and Movants. Without a contract, Plaintiff cannot show reliance, and cannot meet a
second required element of his claim. Without it, the claim must be dismissed.
EGLIGENT ISREPRESENTATION
Plaintiff’s claim for negligent misrepresentation alleges that Defendants “supplied
false information for the guidance of Plaintiffs in their business.” See Petition, para. 108. Plaintiff
fails to define or describe the “false information” at issue. See Petition, para. 108.
To establish a claim fo r negligent misrepresentation, Plaintiff must prove: (1) Movants
made a representation in the course of their business or in a transaction in which Movants had a
pecuniary interest; (2) Movants supplied false information to guide Plaintiff in his business; (3)
Movants did not exercise reasonable care or competence in obtaining or communicating the
information; and (4) Plaintiff suffered pecuniary loss by justifiably relying on the representation.
See Federal Land Bank Ass'n of Tyler v. Sloane 825 S.W.2d 439, 442 (Tex. 1991). The false
information” supplied must have been a misstatement of existing fact. See Airborne Freight Corp.
v. C.R. Lee Enter.,847 S.W.2d 289, 294 (Tex. App. — El Paso 1992, writ denied).
GRAHARKAR HOUDHRI MSJ AGE 12
28. Movants did not supply any information to Plaintiff about his business:
Choudhri never had any discussions directly with Plaintiff concerning interventional
radiology programs with OBLs, and barely interacted with Plaintiff after his first
physical meeting with him. See Ex. C, Deposition of A. Choudhri, 25:1-22; 69:6-8.
Agraharkar testified that interventional radiology and the NIRP were “completely out
of [his] expertise,” and Plaintiff “never discussed” the business idea with Agraharkar.
See Ex. B, Deposition of M. Agraharkar, 42:14-25; 45-46:21-1.
When asked to “identify all misrepresentations Defendants made” to him, Plaintiff only
provided representations by Defendant Gomes; none by Movants. See Ex. D,
Responses to Interrogatories (No. 11).
Given that Movants did not make any representations to Plaintiff, they could not have been
negligent in their delivery. The most important and obvious of the elements of this cause of action
cannot be satisfied and the claim must be dismissed.
EGLIGENCE
To establish a claim for negligence, Plaintiff must prove:
Defendant owed a legal duty to Plaintiff;
Defendant breached that duty; and
The breach proximately caused the plaintiff’s injury.
Western Invs. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); D. Hou., Inc. v. Love, 92 S.W.3d 450,
454 (Tex. 2002).
. Without a legal duty, a defendant cannot be held liable in tort. Graff v. Beard, 858
S.W.2d 918, 919 (Tex. 1993). The existence of a duty is a question of law. SmithKline Beecham
Corp. v. Doe, 903 S.W.2d 347, 351 (Tex. 1995) Mission Petroleum Carriers v. Solomon, 106
S.W.3d 705, 710 (Tex. 2003).
Succin ctly: Movants owed no duty to Plaintiff Plaintiff admits as much in his
Responses to Interrogatories. When asked to “[i]dentify all legal obligations Defendants had to
Plaintiff,” Plaintiff provides a 29-line response that is utterly bereft of any discussion of obligations
owed by Movants. See Ex. D, Responses to Interrogatories (No. 12
GRAHARKAR HOUDHRI MSJ AGE 13
He begins by asserting that he “performed” under “the contract” and has been damaged
by “breach of contract,” and then attempts to support his claim that the Purported Plaintiff/Gomes
Agreement was created on March 10, 2015.See Ex. D, Responses to Interrogatories (No. 1 But
the law is clear: when the loss or damage sounds in the subject matter of the contract, then the
action is for breach of contract and not negligence. Southwestern Bell Telephone Co. v. DeLanney
809 S.W.2d 493, 494 (Tex. 1991). Stated otherwise, “[w]hen the injury is only the economic loss
to the subject of a contract itself the action sounds in contract alone.Jim Walter Homes, Inc. v.
Reed, 711 S.W.2d 617, 618 (Tex. 1986). Dismissal of Plaintiff’s negligence claim for this reason
alone is appropriate.
. After devoting 28 out of his 29 lines to the issue of the Purported Plaintiff/Gomes
Agreement, Plaintiff concludes his Response to the Interrogatory by asserting simply and without
any other information, “Gomes owed a fiduciary obligation to Plaintiff since they were partners.”
See Ex. D, Responses to Interrogatories (No. 12)(emphasis added) Movants are not included in
this purported fiduciary duty – just as they are not included in the purported contract formation.
Plaintiff’s Response demonstrates the impossibility of maintaining his negligence
claim against Movants who owed him no legal duty. He will never be able to establish element
one of his claim (a claim that sounds in contract if it sounds at all) and has functionally admitted
that in his Responses to Interrogatories. His negligence claim against Movants must be summarily
dismissed.
DTPA IOLATIONS
. Without providing any specifics, Plaintiff generically argues that “Defendants
committed a wrongful act under Texas Business & Commerce Code § 17.50(a).” See Petition,
para, 118. little more information comes via Plaintiff’s Response to an interrogatory asking him
GRAHARKAR HOUDHRI MSJ AGE 14
to [d]escribe the factual basis for [his] claim that Defendants violated” the DTPA; Plaintiff
answers:
“Dr. Gomes told Plaintiff that he operated a Company out of New York, as
an enticement of its bigness and enormity. Plaintiff, as a consumer got
trapped and Dr. Gomes caused me damage.”
See Ex. D, Responses to Interrogatories No. 8 There is no mention of Movants in this Response
See Ex. D, Responses to Interrogatories Movants con picuous absence belies the fact
that they did not sell anything to Plaintiff, precluding his status as a “consumer” a status required
to bring a DPTA claim
To prosecute a DTPA claim, a plaintiff must establish that it sought or acquired, by
purchase or lease, goods or services. ODE § 17.45(4); Amstadt v. U.S. Brass
Corp., 919 S.W.2d 649 (Tex. 1996) Resolution Trust Corp. v. Westridge Court Joint Venture
815 S.W.2d 327, 332 (Tex. App. Houston [1 Dist.] 1991, writ denied); Nast v. State Farm Fire
& Cas. Co., 82 S.W.3d 114, 122 (Tex. App. --- San Antonio 2002, no pet.). “Purchase” means the
transmission of property or services from one person to another by a voluntary act or agreement,
founded on valuable consideration. See Houston Livestock Show & Rodeo, Inc. v. Hamrick, 125
S.W.3d 555, 572 (Tex. App. Austin 2003, no pet.); Hall v. Bean, 582 S.W.2d 263, 265 (Tex.
App. Beaumont 1979, no writ).Whether a party qualifies as a consumer under the DTPA is
a question of law. Hand v. Dean Witter Reynolds, Inc, 889 S.W.2d 483, 6 (Tex. App. ---
Houston [14 Dist.] 1994, writ denied) 3Z Corp. v. Stewart Title Guar. Co., 851 S.W.2d 933 (Tex.
App. Beaumont 1993, writ denied); Johnson v. Walker, 824 S.W.2d 184, 187 (Tex. App.
Fort Worth 1991, writ denied)
Movants did not sell anything to Plaintiff, and logically, Plaintiff did not purchase
anything from Movants Indeed, Movants were not involved in any of the March 10, 2015 emails
that Plaintiff alleges created a contract See Ex. E, March 10, 2015 Email. Movants deny any
GRAHARKAR HOUDHRI MSJ AGE
seller/consumer relationship with Plaintiff in full, but even if one could point to some small
involvement that occurred after March 10, 2015, there could be no action: collateral services that
are merely incidental to the performance of a transaction are excluded under the DTPA. Hand
889 S.W.2d at 497 exas Cookie Co. v. Hendricks Peralta, 747 S.W.2d 873, 877 (Tex. App. —
Corpus Christi 1988, writ denied). Moreover, anything that would have been exchanged would
have been intangible – Movants, as physicians being recruited to a potential business situation,
had no chattel to sell to Plaintiff. Intangibles do not confer consumer status under the DTPA.
Hand, 889 S.W.2d at 497.
. Under any theory, and especially in light of Plaintiff’s Response to Interrogatory
Number Eight which wholly omits Movants the determination that Plaintiff is not a consumer is
unavoidable, as is the conclusion that he is consequently prohibited from prosecuting claim for
violations of the DTPA against Movants. His claims must be summarily dismissed.
ONSPIRACY
In furt herance of his conspiracy claim, Plaintiff claims that (1) Defendants represented
that they would hold confidential information in confidence and (2) would provide a 25%
ownership interest in the business. See Petition para. 130. To establish the joint and several
liability he seeks via this claim, Plaintiff will have to prove that:
Each of Movants was a member of a combination of two or more persons;
The object of the combination was to accomplish
An unlawful purpose, or
A lawful purpose by unlawful means;
The members had a meeting of the minds on the object or course of action;
One of the members committed an unlawful, overt act to further the object or
course of action; and
The plaintiff suffered injury as a proximate result of the wrongful act.
Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Ernst & Young, L.L.P. v. Pacific Mut. Life
Ins. Co., 51 S.W.3d 573, 583 (Tex. 2001).
GRAHARKAR HOUDHRI MSJ AGE 16
Combination of two or more persons
. Movants have no relationship outside of their individual status as passive investors in
a business that was created after (1) Defendant Gomes alone – signed a confidentiality agreement
in favor of Plaintiff and (2) Defendant Gomes – alone – engaged in an email discussion with
Plaintiff about a 25% equity interest in an undefined entity. See Ex. I, Confidentiality Agreement;
Ex. E, March 10, 2015 Email; Ex. B, Deposition of M. Agraharkar, 8:16-22; Ex. C, Deposition of
A. Choudhri, 28:1-21.
eir only connection is their status as investors in NIRP who do not run the business
– and that does not give rise to a claim for conspiracy.See Ex. B, Deposition of M. Agraharkar,
76:11-16; Ex. C, Deposition of A. Choudhri, 18:3-13. entity cannot conspire with itself and
corporate agents cannot conspire with each other when they participate in corporate action. Fojtik
v. First Nat’l Bank, 752 S.W.2d 669, 673 (Tex. App. Corpus Christi 1998), writ denied, 775
S.W.2d 632 (Tex. 1989) Similarly, an agent cannot conspire with its principal ; the acts of an
agent and its principal are the acts of a single entity and cannot constitute conspiracy. Bradford
48 S.W.3d at 761; Lyons v. Lindsey Morden Claims Mgmt., 985 S.W.2d 86, 91 (Tex. A El
Paso 1998, no pet.). Movants occupy no greater status than agents and thus cannot be conspirators.
Unlawful Purpose
42. Movants have engaged in no unlawful purposes – as persons who arrived far after the
signing of the confidentiality agreement and the exchange of the March 10, 2015 emails there can
be no viable argument otherwise. See Ex. I, Confidentiality Agreement; Ex. E, March 10, 2015
Email. For the sake of judicial economy, Movants decline to address this element further.
Meeting of the Minds
. To prove conspiracy, the plaintiff must establish the persons involved had a meeting
of the minds about the object of their conspiracy. Transport Ins. Co. v. Faircloth, 898 S.W.2d
GRAHARKAR HOUDHRI MSJ AGE 17
69, 278 (Tex. 1995). To have a meeting of the minds, the conspirators must have knowledge of
the object and purpose of the conspiracy. Schulmberger Well Surv. Corp. v. Nortex Oil & Gas
Corp S.W.2d 854, 857 (Tex. 1968); Likover v. Sunflower Terrace 696 S.W.2d 468, 472
(Tex. App. Houston [1 Dist.] 1985, no writ). A defendant without knowledge of the object
and purpose of a conspiracy cannot be a conspirator it cannot agree, either expressly or tacitly, to
the commission of a wrong of which it was not aware. Schlumberger, 435 S.W.2d at 857. If one
of two defendants alleged to be conspirators does not know of the object or purpose of the
conspiracy, there can be no conspiracy. Pairett v. Gutierrez 969 S.W.2d 512, 516 (Tex. App.
Austin 1998, pet. denied).
A meeting of the minds means that there was an agreement or understanding between
the conspirators to inflict a wrong on another. San Antonio Credit Un. v. O’Connor 115 S.W.3d
82, 90 (Tex. App. --- San Antonio 2003, pet. denied).The conspirators must have a specific intent
to commit the act, which requires the party to be aware of the harm or wrongful conduct at the
beginning of the agreement and intend to cause that harm. Firestone Steel Prods. v. Barajas
927 S.W.2d 608, 617 (Tex. 1996).
Simply stated: Movants did not form and could not have formed a meeting of the
minds with respect to either (1) the February 2015 confidentiality agreement, or (2) the March 10,
email concerning Plaintiff’s 25% equity interest in an undefined entity because they did not
know each other
Agraharkar and Choudhri ad no pre existing relationship prior to being introduced
to them by Plaintiff an introduction that occurred after the February 2015
confidentiality agreement and the March 10, 2015 EmailSee Ex. B, Deposition of
M. Agraharkar, 34:9 ; Ex. C, Depositi on of A. Choudhri, 21: ; Ex. G, April
10, 2015 Email.
Agraharkar and Choudri had no direct or substantive communications outside of
that April 2015 introductory meeting See Ex. B, Deposition of M. Agraharkar,
44:10 18; SeeEx. C, Deposition of A. Choudhri, 28:7
GRAHARKAR HOUDHRI MSJ AGE
Movants’ joint status as non communicating strangers prevents Plaintiff from ever
being able to satisfy this requisite element of his allegation. Without proof that is more than
surmise or suspicion to controvert this clear testimony, Plaintiff’s claim fails.
Unlawful, overt act
To prove conspiracy, Plaintiff must establish that one of the persons involved
committed at least one unlawful, overt act in furtherance of the conspiracy. Massey v. Armco Steel
Co., 652 S.W.3d 932, 934 (Tex. 1983). Plaintiff’s Response to Interrogatory Number Nine is as
bereft of any mention of an unlawful, overt act as his Petition isSee Ex. D, Responses to
Interrogatories (No. 9). This is proof positive that no such act occurred and of his inability
satisfy this element of his claim.
Injury
Given that mu ltiple elements of the claim for conspiracy are disproved by
uncontroverted evidence, Movants elect not to address this element.
The undisputable timeline objectively establishes that Movants could not participate
in a conspiracy with respect to a February 2015 confidentiality agreement or a March 10, 2015
email “agreement.” This inability absolutely precludes Plaintiff’s ability to ever establish a claim
for conspiracy and mandates the summary dismissal of the claim.
-EVIDENCE OTION FOR UMMARY UDGMENT
OMMON AW RAUD AND RAUDULENT ISREPRESENTATION
establish his claim for common law fraud/fraudulent misrepresentation, Plaintiff
will have to prove:
Movants made a representation to Plaintiff;
The representation was material;
The representation was false;
When Movants made the representation, Movants
GRAHARKAR HOUDHRI MSJ AGE 19
Knew the representation was false, or
Made the representation recklessly, as a positive assertion, and without
knowledge of its truth;
Movants made the representation with the intent that Plaintiff act on it;
Plaintiff relied on the representation; and
The representation caused Plaintiff injury.
In re FirstMerit Bank, 52 S.W.3d at 758; Ernst & Young, 51 S.W.3d at 577. Plaintiff cannot
adduce evidence about which reasonable minds would disagree that Movants made a false
representation to Plaintiff or that he acted on it to his detriment. Without such evidence, his claim
must be summarily dismissed.
REACH OF IDUCIARY UTY
Central to Plaintiff’s claim of breach of fiduciary duty is his burden to prove that a
fiduciary relationship existed between Movants and Plaintiff prior to the OBL fight at issue here.
See Kinzbach Tool Co., 160 S.W.2d 513-14. Plaintiff cannot adduce a scintilla of evidence
establishing an actual relationshipbetween himself and each of Movants prior to March 1
and certainly cannot proffer evidence of a fiduciary relationship. Without such evidence, his
claim for breach of fiduciary fails as a matter of law and must be dismissed.
RAUDULENT NDUCEMENT
o avoid dismissal of his claim for common law fraud/fraudulent misrepresentation,
Plaintiff must offer actual evidence that:
Movants made a representation to Plaintiff;
The representation was material;
The representation was false;
When Movants made the representation, Movants
Knew the representation was false, or
Made the representation recklessly, as a positive assertion, and without
knowledge of its truth;
Movants made the representation with the intent that Plaintiff act on it;
Plaintiff actually entered into a binding agreement based upon the representation;
and
The representation caused Plaintiff injury.
GRAHARKAR HOUDHRI MSJ AGE 20
re FirstMerit Bank , 52 S.W.3d at 758; Ernst & Young, 51 S.W.3d at 577; Haase, 62 S.W.3d at
979-98. Given that Movants did not make any representations to Plaintiff about an OBL or about
NIRP, it is impossible for Plaintiff to offer evidence of a misrepresentation – intentionally false or
otherwise. Further, because Plaintiff did not enter into any agreements based on any
representations from Movants, he will not be able to show any of the requisites for his claim.
Without that evidence, dismissal is required under the Rules of Civil Procedure.
RAUD BY ONDISCLOSURE
It is Plaintiff’s burden to establish his claim that Movants concealed or failed to
disclose facts about their intentions to ultimately not do business with Plaintiff. See Plaintiff’s
First Amended PetitionPara. 98. Plaintiff will be required to establish that:
Movants concealed from or failed to disclose certain facts to Plaintiff;
Movants had a duty to disclose the facts to Plaintiff;
The facts were material;
Movants knew
Plaintiff was ignorant of the facts, and
Plaintiff did not have an equal opportunity to discover the facts;
Movants were deliberately silent when they had a duty to speak;
By failing to disclose the facts, Movants intended to induce Plaintiff to take
some action or refrain from acting;
Plaintiff relied on Movants’ nondisclosure; and
Plaintiff was injured as a result of acting without the knowledge of the
undisclosed facts.
Bradford, 48 S.W.3d at 754-55; Morris, 981 S.W.2d at 674; American Tobacco Co.
951 S.W.2d 420 at 436.
Plaintiff cannot adduce evidence of each of these elements that rises above the level
of mere surmise or suspicion primarily because Movants never had any interactions with Plaintiff
that would give rise to a duty or obligation to disclose any intention not to enter into business with
GRAHARKAR HOUDHRI MSJ AGE 21
Plaintiff. Without actual evidence supporting each of these elements, Plaintiff cannot go forward
and his claim for fraud by nondisclosure must be dismissed.
EGLIGENT ISREPRESENTATION
To establish a claim for negligent misrepresentation, Plaintiff must prove:
Movants made a representation in the course of their business or in a transaction
in which Movants had a pecuniary interest;
Movants supplied false information to guide Plaintiff in his business;
Movants did not exercise reasonable care or competence in obtaining or
communicating the information; and
Plaintiff suffered pecuniary loss by justifiably relying on the representation.
See Federal Land Bank Ass'n of Tyler, 825 S.W.2d at 442. The “false information” supplied must
have been a misstatement of existing fact. See Airborne Freight Corp., 847 S.W.2d at 294. Given
that Movants did not make any representations to Plaintiff at all, it will be impossible for Plaintiff
to show that evidence of each of these elements exists. Without such evidence, the claim fails as
a matter of law and Movants’ no-evidence motion for summary judgment must be granted.
EGLIGENCE
. In order to proceed with his negligence claim, Plaintiff must proffer evidence
demonstrating that:
Defendant owed a legal duty to Plaintiff;
Defendant breached that duty; and
The breach proximately caused the plaintiff’s injury.
Western Invs., 162 S.W.3d at 550; D. Hou., Inc., 92 S.W.3d at 454. Plaintiff cannot offer evidence
of each of these three elements, and most significantly cannot ever establish that Movants owed a
legal duty to Plaintiff arising outside of any business relationship they had. Without a legal duty,
Movants cannot be held liable in tort. Graff, 858 S.W.2d at 919. Just as there are no facts that
establish an independent legal duty between Movants and Plaintiff, there are no facts that support
the existence of a breach or injury. Without that evidence, the claim fails and must be dismissed.
GRAHARKAR HOUDHRI MSJ AGE 22
DTPA IOLATIO
Preview
CAUSE NO. 2017-43835 SAM ALAM IN THE DISTRICT COURT Plaintiff, v ANDREW GOMES, M.D., MAHENDRA AGRAHARKAR, MD, HARRIS COUNTY, TEXAS AJAY CHOUDHRI, MD, NATIONAL INTERVENTIONAL RADIOLOGY PARTNERS, PLLC, NIRP MANAGEMENT, LLC, NIRP PASADENA, PLLC, NIRP SUGARLAND, PLLC JUDICIAL DISTRICT Defendants. DEFENDANTS AGHRAHARKAR and CHOUDHRI MOTION FOR SUMMARY JUDGMENT Defendants Mahendra Agraharkar, M.D., (“Agraharkar”) and Ajay Choudhri, M.D. (“Choudhri”) (collectively “Movants”) file this Motion for Traditional and No Evidence Summary Judgment seeking the summary dismissal of the claims for Common Law Fraud, Breach of Fiduciary Duty, Fraudulent Inducement, Fraudulent Misrepresentation, Fraud by Nondisclosure, Negligent Misrepresentation, Negligence, DTPA Violations, Tortious Interference with Contractual Relations, Tortious Interference with Prospective Relations, and Conspiracy brought Sam Alam and Drisoline.com, Inc. (collectively, “Plaintiff”) as alleged in Plaintiff’s First Amended Petition (“Petition”), and in support thereof respectfully show as follows: UMMARY OF THE OTION 1. Movants were not parties to any agreements with Plaintiff, nor to any purported agreements between Plaintiff and Defendant Andrew Gomes, M.D. They were strangers to each other and the situation, innocent invitees who are now caught up in legal dramas borne out of purported transactions that preceded their introductions. Their incontrovertible status as outsiders precludes Plaintiff from successfully maintaining against them the claims made the subjects of this GRAHARKAR HOUDHRI MSJ AGE 1 Motion – claims that must be summarily dismissed as demonstrated by the evidence Movants present herein, and the absence of evidence that Plaintiff will be able to present in Response. ACKGROUND 2. Plaintiff has brought claims against Movants for Common Law Fraud, Breach of Fiduciary Duty, Fraudulent Inducement, Fraudulent Misrepresentation, Fraud by Nondisclosure, Negligent Misrepresentation, Negligence, DTPA Violations, Tortious Interference with Contractual Rights, Tortious Interference with Prospective Relations, and Conspiracy (collectively “Baseless Claims”), but does not offer even a skeletal outline of facts that would support those claims. See Petition. In the “Factual Background” section of his Petition, Plaintiff spends the first 19 paragraphs discussing only his interactions with Defendant Andrew Gomes, M.D., and asserting that he and Defendant Gomes entered into a business agreement as of March 10, 2015 (the “Purported Plaintiff/Gomes Agreement”).See Petition paras. 15 33. Movants finally appear in Paragraph 34 of the Petition and do so not as bad actors but as alleged recipients of information. See Petition para. 3. Finally in paragraphs 35 and 36 Plaintiff makes the seemingly dundant allegation that Movants “utilized the information provided by Drisonline to open multiple healthcare facilities around Houston,” and have “established successful healthcare facilities due to the unlawful use of Drisonline’s trade secrets, proprietary information, and confidential information See Petition at paras. 35 36. Finally Plaintiff complains that Movants have not honored an alleged agreement that they are not parties to. See Petition at para. 37. 3. The absence of facts supporting Plaintiff’s Baseless Claims reveals the impropriety of bringing these causes of action against Movants. That impropriety is magnified when the following uncontroverted testimony is considered, testimony that reveals the absence of interactions between Plaintiff and Movants and consequently the absence of the foundational facts required for Plaintiff’s Baseless Claims: GRAHARKAR HOUDHRI MSJ AGE 2 Concerning Agraharkar: Plaintiff sought Agraharkar’s involvement as a landlord and introduced Agraharkar to Defendant Andrew Gomes, M.D. See Ex. A, Deposition of S. Alam 106-07:24-6See Ex. B, Deposition of M. Agraharkar, 28:14-16 See Ex. C, Deposition of A. Choudhr , 28:1 Agraharkar had no pre existing relationship with Choudhri or Defendant Gomes prior to being introduced to them by Plaintiff. See Ex. B, Deposition of M. Agraharkar, 34:9-11. Agraharkar understood Plaintiff to be someone who was just introducing him to people (specifically, Choudhri and Defendant Gomes) and not someone coming up with a business plan. See Ex. B, Deposition of M. Agraharkar, 28:14-16. Agraharkar had no direct or substantive communications with Choudhri after the initial introductory meeting. See Ex. B, Deposition of M. Agraharkar, 44:10-18 Ex. C, Deposition of A. Choudhri, 28:7-21. The first time Agraharkar learned of Plaintiff’s claim of ownership in the OBL was when he was sued; Plaintiff never made that representation during any meeting. See Ex. B, Deposition of M. Agraharkar, 45:9-25. The first time Agraharkar saw the March 10, 2015, email that Plaintiff contends gives him a 25% equity interest in a business was at his deposition in 2020. See Ex. B, Deposition of M. Agraharkar, 165:1-21. Concerning Choudhri: Prior to meeting Plaintiff in either 2014 or 2015 with Defendant Gomes, Choudhri had not known Plaintiff. See Ex. C, Deposition of A. Choudhri, 20-21:25-10. Choudhri never had any discussions directly with Plaintiff concerning interventional radiology programs with OBLs, and barely interacted with Plaintiff after his first physical meeting with himSee Ex. C, Deposition of A. Choudhri, 25:1-2269:6-8. Choudhri d Defendant Gomes had been discussing the concept of OBLs for years prior to 2015; OBLs are not a new idea and there are a number of them existing in Houston. Much of the information related to them is common knowledge. See Ex. C, Deposition of A. Choudhri, 16 -23; 17:7-10;47:13-22. The first time Choudhri saw any proposed business plan from Plaintiff was at his deposition in 2020. See Ex. C, Deposition of A. Choudhri, 55:5-10. The business model proposed by Plaintiff is “completely different” than what Defendant NIRP is doing and “not even close” to the NIRP business model NIRP actually did the opposite of what was suggested in the business model. See Ex. C, Deposition of A. Choudhri, 55:14-22; 61-62:15-1. Choudhri was not involved in any discussions of forming legal entities with Plaintiff and would not have been a member of any such company. See Ex. C, Deposition of A. Choudhri, 73:1-12. GRAHARKAR HOUDHRI MSJ AGE 3 All of this testimony reveals that Movants had no relationship with Plaintiff and had no substantive interactions with Plaintiff that would give rise to any claims for Common Law Fraud, Breach of Fiduciary Duty, Fraudulent Inducement, Fraudulent Misrepresentation, Fraud by Nondisclosure, Negligent Misrepresentation, Negligence, DTPA Violations, and Conspiracy. TANDARD OF EVIEW 4. In a traditional motion for summary judgment, the movant must present evidence to the court establishing his right to the relief sought. ROC 166a. A defendant seeking summary judgment must either (1) disprove at least one element of each of the plaintiff’s causes of action, or (2) conclusively establish each essential element of any affirmative defense, thereby rebutting the plaintiff’s cause of action. Cathey v. Boothe, 900 S.W.2d 339, 341 (Tex. 1995). Uncontroverted evidence favoring the movant is to be taken as true. Casey v. Amarillo Hosp. Dist., 947 S.W.2d 301, 303 304 (Tex. App. Amarillo 1997, pet. denied). If the movant establishes that there is no genuine issue of material fact as to any defense raised, he is entitled to summary judgment. See Park Place Hospital v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995). 5. With respect to a no evidence motion for summary judgment, the non movant must raise a genuine issue of material fact about the element challenged by the no-evidence motion. ROC. 166a(i). The trial court must resolve all reasonable doubts about the facts in favor of the nonmovant. Lehrer v. Zwernemann, 14 S.W.3d 775, 777 (Tex. App. Houston [1 Dist.] 2000, pet. denied). A non movant produces more than a scintilla of evidence when it rises to a level that would enable reasonable and fair minded people to differ in their conclusions. Ridgway v. Ford Motor Co., 135 S.W.3d 598, 601 (Tex. 2004). IV. RADITIONAL OTION FOR UMMARY UDGMENT OMMON AW RAUD AND RAUDULENT ISREPRESENTATION Common law fraud is comprised of (1) simple fraud, sometimes referred to as fraudulent misrepresentation, and (2) fraudulent inducement. Because Plaintiff’s claims for common law fraud and fraudulent misrepresentation are not truly two separate causes of action, Movants address the doubly plead cause of action as one. GRAHARKAR HOUDHRI MSJ AGE 4 Plaintiff alleges that “Defendants” made representations to Plaintiff regarding business agreements that were “integral” to his agreement to enter into a business relationship “with Defendants.” See Petition, paras. 65-66.He also alleges that “Defendants made fraudulent misrepresentations…” See Petition, para. 90. Plaintiff does not offer any specificity as to these alleged representations. See Petition, paras. 65-6690-91. These contentions exist in opposition to Plaintiff’s other statements and uncontroverted testimony: When asked to “identify all misrepresentations Defendants made” to him, Plaintiff only provided representations by Defendant Gomes; none by Movants. See Ex. D, Responses to Interrogatories (No. 11). Agraharkar never discussed being a member of NIRP [the OBL at issue] with Plaintiff. See Ex. B, Deposition of M. Agraharkar, 75-76:21-2. Choudhri never discussed anything about NIRP or interventional radiology with Plaintiff. See Ex. C, Deposition of A. Choudhri, 25:1-17. Neither Agraharkar nor Choudhri were parties to the March 10, 2015, email that Plaintiff contends creates the Purported Plaintiff/Gomes Agreement See Ex. E, March 10, 2015 Email. 7. A cause of action for common law fraud requires, as the very first element, that the defendant make a representation to the plaintiff that is both material and false. In re FirstMerit Bank, 52 S.W.3d 749, 758 (Tex. 2001); Ernst & Young v. Pac. Mut. Life Ins. Co 51 S.W.3d 573, 577 (Tex. 2001). Uncontroverted evidence, including Plaintiff’s own statements, all show that Movants made no representations to Plaintiff. It is axiomatic then that they did not make “material and false statements” or false statements that caused Plaintiff to enter into a business relationship with them. The latter is confirmed by the absence of a business relationship between Plaintiff and Movants – another item about which he complains. Reasonable minds could never differ as to the impact of this evidence; Plaintiff cannot ever establish that Movants made an affirmative representation to him, upon which he relied, in order to go into business with him. Because the evidence precludes establishing element one, summary dismissal of the claims of common law fraud and fraudulent misrepresentation must be granted. GRAHARKAR HOUDHRI MSJ AGE 5 8. If Plaintiff’s own admission was somehow deemed insufficient to mandate the dismissal of his fraud claim, then email discussions that mandate dismissal can be considered. Plaintiff contends that his March 10, 2015 email with Defendant Gomes created the Purported Plaintiff/Gomes AgreementSeePetition , para. 23; Ex. E, March 10, 2015 Email. Movants were not parties to that email and could not have made representations in connection with it. See Ex. E, March 10, 2015 Email. In fact, Agraharkar was brought in by Plaintiff for the possibility of serving as a landlord for the potential OBL – not as a partner. See Ex. A, Deposition of S. Alam 106 07:24-6; See Ex. B, Deposition of M. Agraharkar, 28:14-16; See Ex. C, Deposition of A. Choudhri, 28:1-13. Agraharkar did not meet Defendant Gomes until March 23, 2015 thirteen days after the Purported Plaintiff/Gomes Agreement. See Ex. F, March 24, 2015 Email. Moreover, the March 24, 2015, email from Defendant Gomes to Agraharkar shows that Agraharkar was not intended to be a part of any business between Defendant Gomes and Plaintiff, but rather a landlord and potential source of referral business. See Ex. F, March 24, 2015 Email. Similarly, Choudhri did not meet Plaintiff or Agraharkar until April 2015 – approximately a month after Plaintiff contends, he and Defendant Gomes entered into the Purported Plaintiff/Gomes Agreement. See Ex. G, April 10, 2015 Email. Neither Agraharkar nor Choudhri, who arrived after the Purported Plaintiff/Gomes Agreement, could have induced Plaintiff to enter into business. There is no feasible way for Plaintiff to satisfy element one against Movants and his claim for common law fraud/fraudulent misrepresentationagainst them must be dismissed. REACH OF IDUCIARY UTY Plaintiff contends that Movants breached a fiduciary duty to him via false representations. See Petition, para. 73 74. This claim fails because (1) no fiduciary relationship exists between Plaintiff and Movants, and (2) Movants did not make any false representations to Plaintif GRAHARKAR HOUDHRI MSJ AGE 6 No Fiduciary Relationship 10. Plaintiff had no pre existing relationship with either of Movants. Although he was acquainted with Agraharkar prior to 2015, there had been no business dealings between the two of them. See Ex. B, Deposition of M. Agraharkar, 11:5-25. Plaintiff had approached Agraharkar about business ventures after learning about Agraharkar’s involvement in the dialysis business but the two never did any business and Agraharkar did not even take Plaintiff’s proposals very seriouslySee Ex. B, Deposition of M. Agraharkar. 11:5-25; 24:2-25.Choudhri had not known Plaintiff prior to coming to Houston to meet with him [in April 2015]. See Ex. C, Deposition of A. Choudhri, 21:8-10. The law is clear and unequivocal: there is no fiduciary duty between strangers or loose acquaintances. 11. prove an action for breach of fiduciary duty, laintiff must establish that Movants were Plaintiff’s fiduciariesKinzbach Tool Co. v. Corbett Wallace Corp., 160 S.W.2d 509, 513 14 (Tex. 1942). A fiduciary relationship is an extraordinary one and is not lightly created.Kline v. O'Quinn, 874 S.W.2d 776, 786 (Tex. App. Houston [14 Dist.] 1994, writ denied),cert. denied15 U.S. 1142 (1995); Pabich v. Kellar, 71 S.W.3d 500, 505 (Tex. App. Fort Worth 2002, pet denied). Moreover, for there to be a fiduciary relationship in a business transaction, the fiduciary relationship must exist before and apart from the agreement that is the basis for the suit. Willis v. Donnelly, 199 S.W.3d 262, 277 (Tex. 2006). 12. The uncontroverted evidence establishes that no fiduciary relationship (and really, no relationship of any meaning) existed between Plaintiff and Movants prior to March 10, 2015, the date of the Purported Plaintiff/Gomes Agreement See Ex. B, Deposition of M. Agraharkar, 11:5 See Ex. C, Deposition of A. Choudhri, 21:8-10. Plaintiff’s Responses to Interrogatories confirm that no fiduciary relationship existed; when asked to describe the basis for his claim of fiduciary duty, Plaintiff only asserted that Defendant Gomes – and not Movants was his partner. GRAHARKAR HOUDHRI MSJ AGE 7 See Ex. D, Responses to Interrogatories (No. 6). He did not describe any relationship of any sort with Movants, thereby tacitly admitting that none existed. See Ex. D, Responses to Interrogatories (No. 6). evidence, about which reasonable minds could not disagree, mandates the dismissal of Plaintiff’s claim for breach of fiduciary duty. No False Representations 13. Ignoring the fact that the evidence disproves the existence of a fiduciary relationship, Plaintiff’s own admissions demonstrate that there was no breach via “false representations” as he alleges. See Petition, para. 73-74. When asked to “identify all misrepresentations Defendants made” to him, Plaintiff only provided representations by Defendant Gomes; none by Movants. See Ex. D, Responses to Interrogatories (No. 11). Without any false representations, there cannot have been a breach of duty through false representations, and Plaintiff’s claim for breach of fiduciary duty must be summarily dismissed. RAUDULENT NDUCEMENT 14. Plaintiff alleges that Defendants fraudulently induced him to enter into a contract to do business with them and provide confidential information to them. See Petition, para. 82. Plaintiff’s claim cannot survive summary judgment because Plaintiff never entered into a contract to do business with Movants. 15. To establish a claim for fraudulent inducement, Plaintiff must prove he actually entered into a binding agreement based on a false representation. Haase v. Glazner 62 S.W.3d 98 (Tex. 2001)(emphasis supplied) “’Texas law has long imposed a duty to abstain from inducing another to enter into a contract through the use of fraudulent misrepresentations.’ Certainly, there can be no breach of that duty when one is not induced into a contract.” at (quoting Formosa Plastics v. Presidio Engineers, 960 S.W.2d 41 (Tex. 1998)). GRAHARKAR HOUDHRI MSJ AGE 8 There is no binding agreement between Movants and Plaintiff; indeed, Plaintiff only alleges the existence of a contract between himselfand Defendant Gomes. SeePetition, para. Movants’ names do not appear on the March 10, 2015 email that Plaintiff claims establishes the Purported Plaintiff/Gomes AgreementSee Ex. E, March 10, 2015 Email. Movants’ names do not appear as potential partners in any documents that were provided to attorney Jon Spires before discord between Plaintiff and Defendant Gomes caused the attorney to terminate his representation of them. See Ex. June 23, 2015 EmailThe absence of Movants’ names from any of these documents is consistent with their intentions; Agraharkar testified unequivocally that he never had any plans of becoming a member of NIRP with Plaintiff, and Choudhri testified that he was not even aware of conversations regarding corporations and would not have been part of an entity.See Ex. B, Deposition of M. Agraharakar, 75 76:21 ; Ex. C, Deposition of A. Choudhri, 73:1 There is no evidence even suggesting the existence of a binding agreement between Plaintiff and Movants. There is also no evidence suggesting the existence of a fraudulent misrepresentation by Movants. When asked to describe the factual basis for his claim that Defendants fraudulently induced Plaintiff to contrac , Plaintiff provided 63 lines of textSee Ex. D, Response to Interrogatories (No. 7).In all those lines, Plaintiff does not offer one word much less one sentence describing any representation (much less a false one) made by Movants (much less a false one that he relied on to enter a contract). See Ex. D, Response to Interrogatories (No. 7) aintiff instead affirms the reality already established by the evidence incorporated into this Motion: Movants’ tangential involvement in the situation occurred after March 10, 2015 and thus after the date Plaintiff claims the Purported Plaintiff/Gomes Agreement was created, and thus could not have induced Plaintiff to contractSee Ex. D, Response to Interrogatories (No. 7). GRAHARKAR HOUDHRI MSJ AGE Whether or not there was a contract between Plaintiff and Defendant Gomes is irrelevant to the present issue. The undisputed facts show that there was no contract between Plaintiff and Movants and no representations by Movants. The Texas Supreme Court has decreed in such circumstances there can be no cause of action for fraudulent inducement; Plaintiff’s claim must be summarily dismissed. RAUD BY ONDISCLOSURE Plaintiff claims that Defendants concealed or failed to disclose facts to Plaintiff about Defendants’ intentions to ultimately not do business with Plaintiff. SeePlaintiff’s First Amended Petition at Para. 98. He further alleges that the “facts were material in Plaintiffs’ decision enter into business dealings with Defendants and provide confidential information to Defendants.” See Plaintiff’s First Amended Petition Para. 100 (italics added). To prove his claim that Movants committed fraud by nondisclosure, Plaintiff will have to establish – among other things that Movants (1) had a duty to disclose information that they concealed, and (2) that Plaintiff actually relied on the non-disclosureBradford v. Vento, 48 S.W.3d 749, 754 55 (Tex. 2001); Insurance Co. of N. Am. v. Morri , 981 S.W.2d 667, 674 (Tex. 1998); American Tobacco Co. v. Grinnell 951 S.W.2d 420, 436 (Tex, 1997). Clear evidence prevents Plaintiff from ever being able to establish these first two elements Duty to Disclose 20. To prove action for fraud by nondisclosure, the plaintiff must establish the defendant had a duty to disclose because (1) there was a fiduciary or other special relationship requiring disclosure, (2) the defendant discovered new information that made an earlier representation misleading or untrue, (3) the defendant created a false impression by making a partial disclosure, or (4) the defendant voluntarily disclosed some information and therefore had a duty to disclose the whole truth. Hoggett v. Brown, 971 S.W.2d 472, 487 (Tex. App. --- Houston [14 Dist.] 1997, GRAHARKAR HOUDHRI MSJ AGE 10 pet. denied); Lesikar v. Rappeport, 33 S.W.3d 282, 299 (Tex. App. Texarkana 2000, pet. denied). None of these circumstances exist here. Plaintiff and Movants were not in a fiduciary relationship; they were mere acquaintances or strangers prior to the Purported Plaintiff/Gomes Agreement that Plaintiff claims came into existence on March 10, 2015. See Ex. B, Deposition of M. Agraharkar, 11:5-25; 24:2 25; Ex. C, Deposition of A. Choudhri, 21:8-10. 22. Movants made no representations to Plaintiff about going into business with him at all, and thus could never need to correct his understanding by disclosing their “intentions not to do business with Plaintiff.” See Petition, para. 98; Ex. B, Deposition of M. Agraharkar, 75-76:21- (Agraharkar never discussed being a member of NIRP with Plaintiff); Ex. C, Deposition of A. Choudhri, 25:1 17 (Choudhri never discussed anything about NIRP or interventional radiology with Plaintiff). Plaintiff’s own evidence confirms the absence of any representation by Movants to do business with Plaintiff and thus eliminates any possible duty Movants had to redress that. See Ex. D, Response to Interrogatories (No. 7)(attributing all representations exclusively to Defendant Gomes). 23. Without proof of this element, Plaintiff’s claim for fraud by nondisclosure fails. Detrimental Reliance Plaintiff is also required to and cannot prove that he relied on any omission by MovantsSchlumberger Tech. v. Sw anson, 959 S.W.2d 171, 181 (Tex. 1997). To have relied on an omission, Plaintiff would have had to have entered into a contract with Movants. There is no evidence of a contract between Plaintiff and Movants and frankly, no allegation of a contract between Plaintiff and Movants. See Petition, para. 41. Movants were not parties to or even referenced in the March 10, 2015 email that Plaintiff claims establishes the Purported Plaintiff/Gomes AgreementSee Ex. E, March 10, 2015 Email. Movants were never going to be GRAHARKAR HOUDHRI MSJ AGE 11 owners of any company formed by Plaintiff and Defendant Gomes. See Ex. D, Responses to Interrogatories (No. 3)(“On March 10, 2015, Dr. omes and Plaintiff entered into an agreement in which Plaintiff would own 25% of equity/shareholdings and he would own 75% of equity in a Company to be formed by attorney Jon Spires. Ex. H, June 23, 2015 Email. Agraharkar testified unequivocally that he never had any plans of becoming a member of NIRP with Plaintiff and Choudhri testified that he was not even aware of conversations regarding corporations and would not have been part of an entity. See Ex. B, Deposition of M. Agraharakar, 75-76:21-2; Ex. C, Deposition of A. Choudhri, 73:1-12. Irrespective of whatever theoretical business arrangement might have been contemplated or created between Plaintiff and Defendant Gomes, there was no contract between Plaintiff and Movants. Without a contract, Plaintiff cannot show reliance, and cannot meet a second required element of his claim. Without it, the claim must be dismissed. EGLIGENT ISREPRESENTATION Plaintiff’s claim for negligent misrepresentation alleges that Defendants “supplied false information for the guidance of Plaintiffs in their business.” See Petition, para. 108. Plaintiff fails to define or describe the “false information” at issue. See Petition, para. 108. To establish a claim fo r negligent misrepresentation, Plaintiff must prove: (1) Movants made a representation in the course of their business or in a transaction in which Movants had a pecuniary interest; (2) Movants supplied false information to guide Plaintiff in his business; (3) Movants did not exercise reasonable care or competence in obtaining or communicating the information; and (4) Plaintiff suffered pecuniary loss by justifiably relying on the representation. See Federal Land Bank Ass'n of Tyler v. Sloane 825 S.W.2d 439, 442 (Tex. 1991). The false information” supplied must have been a misstatement of existing fact. See Airborne Freight Corp. v. C.R. Lee Enter.,847 S.W.2d 289, 294 (Tex. App. — El Paso 1992, writ denied). GRAHARKAR HOUDHRI MSJ AGE 12 28. Movants did not supply any information to Plaintiff about his business: Choudhri never had any discussions directly with Plaintiff concerning interventional radiology programs with OBLs, and barely interacted with Plaintiff after his first physical meeting with him. See Ex. C, Deposition of A. Choudhri, 25:1-22; 69:6-8. Agraharkar testified that interventional radiology and the NIRP were “completely out of [his] expertise,” and Plaintiff “never discussed” the business idea with Agraharkar. See Ex. B, Deposition of M. Agraharkar, 42:14-25; 45-46:21-1. When asked to “identify all misrepresentations Defendants made” to him, Plaintiff only provided representations by Defendant Gomes; none by Movants. See Ex. D, Responses to Interrogatories (No. 11). Given that Movants did not make any representations to Plaintiff, they could not have been negligent in their delivery. The most important and obvious of the elements of this cause of action cannot be satisfied and the claim must be dismissed. EGLIGENCE To establish a claim for negligence, Plaintiff must prove: Defendant owed a legal duty to Plaintiff; Defendant breached that duty; and The breach proximately caused the plaintiff’s injury. Western Invs. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); D. Hou., Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). . Without a legal duty, a defendant cannot be held liable in tort. Graff v. Beard, 858 S.W.2d 918, 919 (Tex. 1993). The existence of a duty is a question of law. SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 351 (Tex. 1995) Mission Petroleum Carriers v. Solomon, 106 S.W.3d 705, 710 (Tex. 2003). Succin ctly: Movants owed no duty to Plaintiff Plaintiff admits as much in his Responses to Interrogatories. When asked to “[i]dentify all legal obligations Defendants had to Plaintiff,” Plaintiff provides a 29-line response that is utterly bereft of any discussion of obligations owed by Movants. See Ex. D, Responses to Interrogatories (No. 12 GRAHARKAR HOUDHRI MSJ AGE 13 He begins by asserting that he “performed” under “the contract” and has been damaged by “breach of contract,” and then attempts to support his claim that the Purported Plaintiff/Gomes Agreement was created on March 10, 2015.See Ex. D, Responses to Interrogatories (No. 1 But the law is clear: when the loss or damage sounds in the subject matter of the contract, then the action is for breach of contract and not negligence. Southwestern Bell Telephone Co. v. DeLanney 809 S.W.2d 493, 494 (Tex. 1991). Stated otherwise, “[w]hen the injury is only the economic loss to the subject of a contract itself the action sounds in contract alone.Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986). Dismissal of Plaintiff’s negligence claim for this reason alone is appropriate. . After devoting 28 out of his 29 lines to the issue of the Purported Plaintiff/Gomes Agreement, Plaintiff concludes his Response to the Interrogatory by asserting simply and without any other information, “Gomes owed a fiduciary obligation to Plaintiff since they were partners.” See Ex. D, Responses to Interrogatories (No. 12)(emphasis added) Movants are not included in this purported fiduciary duty – just as they are not included in the purported contract formation. Plaintiff’s Response demonstrates the impossibility of maintaining his negligence claim against Movants who owed him no legal duty. He will never be able to establish element one of his claim (a claim that sounds in contract if it sounds at all) and has functionally admitted that in his Responses to Interrogatories. His negligence claim against Movants must be summarily dismissed. DTPA IOLATIONS . Without providing any specifics, Plaintiff generically argues that “Defendants committed a wrongful act under Texas Business & Commerce Code § 17.50(a).” See Petition, para, 118. little more information comes via Plaintiff’s Response to an interrogatory asking him GRAHARKAR HOUDHRI MSJ AGE 14 to [d]escribe the factual basis for [his] claim that Defendants violated” the DTPA; Plaintiff answers: “Dr. Gomes told Plaintiff that he operated a Company out of New York, as an enticement of its bigness and enormity. Plaintiff, as a consumer got trapped and Dr. Gomes caused me damage.” See Ex. D, Responses to Interrogatories No. 8 There is no mention of Movants in this Response See Ex. D, Responses to Interrogatories Movants con picuous absence belies the fact that they did not sell anything to Plaintiff, precluding his status as a “consumer” a status required to bring a DPTA claim To prosecute a DTPA claim, a plaintiff must establish that it sought or acquired, by purchase or lease, goods or services. ODE § 17.45(4); Amstadt v. U.S. Brass Corp., 919 S.W.2d 649 (Tex. 1996) Resolution Trust Corp. v. Westridge Court Joint Venture 815 S.W.2d 327, 332 (Tex. App. Houston [1 Dist.] 1991, writ denied); Nast v. State Farm Fire & Cas. Co., 82 S.W.3d 114, 122 (Tex. App. --- San Antonio 2002, no pet.). “Purchase” means the transmission of property or services from one person to another by a voluntary act or agreement, founded on valuable consideration. See Houston Livestock Show & Rodeo, Inc. v. Hamrick, 125 S.W.3d 555, 572 (Tex. App. Austin 2003, no pet.); Hall v. Bean, 582 S.W.2d 263, 265 (Tex. App. Beaumont 1979, no writ).Whether a party qualifies as a consumer under the DTPA is a question of law. Hand v. Dean Witter Reynolds, Inc, 889 S.W.2d 483, 6 (Tex. App. --- Houston [14 Dist.] 1994, writ denied) 3Z Corp. v. Stewart Title Guar. Co., 851 S.W.2d 933 (Tex. App. Beaumont 1993, writ denied); Johnson v. Walker, 824 S.W.2d 184, 187 (Tex. App. Fort Worth 1991, writ denied) Movants did not sell anything to Plaintiff, and logically, Plaintiff did not purchase anything from Movants Indeed, Movants were not involved in any of the March 10, 2015 emails that Plaintiff alleges created a contract See Ex. E, March 10, 2015 Email. Movants deny any GRAHARKAR HOUDHRI MSJ AGE seller/consumer relationship with Plaintiff in full, but even if one could point to some small involvement that occurred after March 10, 2015, there could be no action: collateral services that are merely incidental to the performance of a transaction are excluded under the DTPA. Hand 889 S.W.2d at 497 exas Cookie Co. v. Hendricks Peralta, 747 S.W.2d 873, 877 (Tex. App. — Corpus Christi 1988, writ denied). Moreover, anything that would have been exchanged would have been intangible – Movants, as physicians being recruited to a potential business situation, had no chattel to sell to Plaintiff. Intangibles do not confer consumer status under the DTPA. Hand, 889 S.W.2d at 497. . Under any theory, and especially in light of Plaintiff’s Response to Interrogatory Number Eight which wholly omits Movants the determination that Plaintiff is not a consumer is unavoidable, as is the conclusion that he is consequently prohibited from prosecuting claim for violations of the DTPA against Movants. His claims must be summarily dismissed. ONSPIRACY In furt herance of his conspiracy claim, Plaintiff claims that (1) Defendants represented that they would hold confidential information in confidence and (2) would provide a 25% ownership interest in the business. See Petition para. 130. To establish the joint and several liability he seeks via this claim, Plaintiff will have to prove that: Each of Movants was a member of a combination of two or more persons; The object of the combination was to accomplish An unlawful purpose, or A lawful purpose by unlawful means; The members had a meeting of the minds on the object or course of action; One of the members committed an unlawful, overt act to further the object or course of action; and The plaintiff suffered injury as a proximate result of the wrongful act. Chon Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 583 (Tex. 2001). GRAHARKAR HOUDHRI MSJ AGE 16 Combination of two or more persons . Movants have no relationship outside of their individual status as passive investors in a business that was created after (1) Defendant Gomes alone – signed a confidentiality agreement in favor of Plaintiff and (2) Defendant Gomes – alone – engaged in an email discussion with Plaintiff about a 25% equity interest in an undefined entity. See Ex. I, Confidentiality Agreement; Ex. E, March 10, 2015 Email; Ex. B, Deposition of M. Agraharkar, 8:16-22; Ex. C, Deposition of A. Choudhri, 28:1-21. eir only connection is their status as investors in NIRP who do not run the business – and that does not give rise to a claim for conspiracy.See Ex. B, Deposition of M. Agraharkar, 76:11-16; Ex. C, Deposition of A. Choudhri, 18:3-13. entity cannot conspire with itself and corporate agents cannot conspire with each other when they participate in corporate action. Fojtik v. First Nat’l Bank, 752 S.W.2d 669, 673 (Tex. App. Corpus Christi 1998), writ denied, 775 S.W.2d 632 (Tex. 1989) Similarly, an agent cannot conspire with its principal ; the acts of an agent and its principal are the acts of a single entity and cannot constitute conspiracy. Bradford 48 S.W.3d at 761; Lyons v. Lindsey Morden Claims Mgmt., 985 S.W.2d 86, 91 (Tex. A El Paso 1998, no pet.). Movants occupy no greater status than agents and thus cannot be conspirators. Unlawful Purpose 42. Movants have engaged in no unlawful purposes – as persons who arrived far after the signing of the confidentiality agreement and the exchange of the March 10, 2015 emails there can be no viable argument otherwise. See Ex. I, Confidentiality Agreement; Ex. E, March 10, 2015 Email. For the sake of judicial economy, Movants decline to address this element further. Meeting of the Minds . To prove conspiracy, the plaintiff must establish the persons involved had a meeting of the minds about the object of their conspiracy. Transport Ins. Co. v. Faircloth, 898 S.W.2d GRAHARKAR HOUDHRI MSJ AGE 17 69, 278 (Tex. 1995). To have a meeting of the minds, the conspirators must have knowledge of the object and purpose of the conspiracy. Schulmberger Well Surv. Corp. v. Nortex Oil & Gas Corp S.W.2d 854, 857 (Tex. 1968); Likover v. Sunflower Terrace 696 S.W.2d 468, 472 (Tex. App. Houston [1 Dist.] 1985, no writ). A defendant without knowledge of the object and purpose of a conspiracy cannot be a conspirator it cannot agree, either expressly or tacitly, to the commission of a wrong of which it was not aware. Schlumberger, 435 S.W.2d at 857. If one of two defendants alleged to be conspirators does not know of the object or purpose of the conspiracy, there can be no conspiracy. Pairett v. Gutierrez 969 S.W.2d 512, 516 (Tex. App. Austin 1998, pet. denied). A meeting of the minds means that there was an agreement or understanding between the conspirators to inflict a wrong on another. San Antonio Credit Un. v. O’Connor 115 S.W.3d 82, 90 (Tex. App. --- San Antonio 2003, pet. denied).The conspirators must have a specific intent to commit the act, which requires the party to be aware of the harm or wrongful conduct at the beginning of the agreement and intend to cause that harm. Firestone Steel Prods. v. Barajas 927 S.W.2d 608, 617 (Tex. 1996). Simply stated: Movants did not form and could not have formed a meeting of the minds with respect to either (1) the February 2015 confidentiality agreement, or (2) the March 10, email concerning Plaintiff’s 25% equity interest in an undefined entity because they did not know each other Agraharkar and Choudhri ad no pre existing relationship prior to being introduced to them by Plaintiff an introduction that occurred after the February 2015 confidentiality agreement and the March 10, 2015 EmailSee Ex. B, Deposition of M. Agraharkar, 34:9 ; Ex. C, Depositi on of A. Choudhri, 21: ; Ex. G, April 10, 2015 Email. Agraharkar and Choudri had no direct or substantive communications outside of that April 2015 introductory meeting See Ex. B, Deposition of M. Agraharkar, 44:10 18; SeeEx. C, Deposition of A. Choudhri, 28:7 GRAHARKAR HOUDHRI MSJ AGE Movants’ joint status as non communicating strangers prevents Plaintiff from ever being able to satisfy this requisite element of his allegation. Without proof that is more than surmise or suspicion to controvert this clear testimony, Plaintiff’s claim fails. Unlawful, overt act To prove conspiracy, Plaintiff must establish that one of the persons involved committed at least one unlawful, overt act in furtherance of the conspiracy. Massey v. Armco Steel Co., 652 S.W.3d 932, 934 (Tex. 1983). Plaintiff’s Response to Interrogatory Number Nine is as bereft of any mention of an unlawful, overt act as his Petition isSee Ex. D, Responses to Interrogatories (No. 9). This is proof positive that no such act occurred and of his inability satisfy this element of his claim. Injury Given that mu ltiple elements of the claim for conspiracy are disproved by uncontroverted evidence, Movants elect not to address this element. The undisputable timeline objectively establishes that Movants could not participate in a conspiracy with respect to a February 2015 confidentiality agreement or a March 10, 2015 email “agreement.” This inability absolutely precludes Plaintiff’s ability to ever establish a claim for conspiracy and mandates the summary dismissal of the claim. -EVIDENCE OTION FOR UMMARY UDGMENT OMMON AW RAUD AND RAUDULENT ISREPRESENTATION establish his claim for common law fraud/fraudulent misrepresentation, Plaintiff will have to prove: Movants made a representation to Plaintiff; The representation was material; The representation was false; When Movants made the representation, Movants GRAHARKAR HOUDHRI MSJ AGE 19 Knew the representation was false, or Made the representation recklessly, as a positive assertion, and without knowledge of its truth; Movants made the representation with the intent that Plaintiff act on it; Plaintiff relied on the representation; and The representation caused Plaintiff injury. In re FirstMerit Bank, 52 S.W.3d at 758; Ernst & Young, 51 S.W.3d at 577. Plaintiff cannot adduce evidence about which reasonable minds would disagree that Movants made a false representation to Plaintiff or that he acted on it to his detriment. Without such evidence, his claim must be summarily dismissed. REACH OF IDUCIARY UTY Central to Plaintiff’s claim of breach of fiduciary duty is his burden to prove that a fiduciary relationship existed between Movants and Plaintiff prior to the OBL fight at issue here. See Kinzbach Tool Co., 160 S.W.2d 513-14. Plaintiff cannot adduce a scintilla of evidence establishing an actual relationshipbetween himself and each of Movants prior to March 1 and certainly cannot proffer evidence of a fiduciary relationship. Without such evidence, his claim for breach of fiduciary fails as a matter of law and must be dismissed. RAUDULENT NDUCEMENT o avoid dismissal of his claim for common law fraud/fraudulent misrepresentation, Plaintiff must offer actual evidence that: Movants made a representation to Plaintiff; The representation was material; The representation was false; When Movants made the representation, Movants Knew the representation was false, or Made the representation recklessly, as a positive assertion, and without knowledge of its truth; Movants made the representation with the intent that Plaintiff act on it; Plaintiff actually entered into a binding agreement based upon the representation; and The representation caused Plaintiff injury. GRAHARKAR HOUDHRI MSJ AGE 20 re FirstMerit Bank , 52 S.W.3d at 758; Ernst & Young, 51 S.W.3d at 577; Haase, 62 S.W.3d at 979-98. Given that Movants did not make any representations to Plaintiff about an OBL or about NIRP, it is impossible for Plaintiff to offer evidence of a misrepresentation – intentionally false or otherwise. Further, because Plaintiff did not enter into any agreements based on any representations from Movants, he will not be able to show any of the requisites for his claim. Without that evidence, dismissal is required under the Rules of Civil Procedure. RAUD BY ONDISCLOSURE It is Plaintiff’s burden to establish his claim that Movants concealed or failed to disclose facts about their intentions to ultimately not do business with Plaintiff. See Plaintiff’s First Amended PetitionPara. 98. Plaintiff will be required to establish that: Movants concealed from or failed to disclose certain facts to Plaintiff; Movants had a duty to disclose the facts to Plaintiff; The facts were material; Movants knew Plaintiff was ignorant of the facts, and Plaintiff did not have an equal opportunity to discover the facts; Movants were deliberately silent when they had a duty to speak; By failing to disclose the facts, Movants intended to induce Plaintiff to take some action or refrain from acting; Plaintiff relied on Movants’ nondisclosure; and Plaintiff was injured as a result of acting without the knowledge of the undisclosed facts. Bradford, 48 S.W.3d at 754-55; Morris, 981 S.W.2d at 674; American Tobacco Co. 951 S.W.2d 420 at 436. Plaintiff cannot adduce evidence of each of these elements that rises above the level of mere surmise or suspicion primarily because Movants never had any interactions with Plaintiff that would give rise to a duty or obligation to disclose any intention not to enter into business with GRAHARKAR HOUDHRI MSJ AGE 21 Plaintiff. Without actual evidence supporting each of these elements, Plaintiff cannot go forward and his claim for fraud by nondisclosure must be dismissed. EGLIGENT ISREPRESENTATION To establish a claim for negligent misrepresentation, Plaintiff must prove: Movants made a representation in the course of their business or in a transaction in which Movants had a pecuniary interest; Movants supplied false information to guide Plaintiff in his business; Movants did not exercise reasonable care or competence in obtaining or communicating the information; and Plaintiff suffered pecuniary loss by justifiably relying on the representation. See Federal Land Bank Ass'n of Tyler, 825 S.W.2d at 442. The “false information” supplied must have been a misstatement of existing fact. See Airborne Freight Corp., 847 S.W.2d at 294. Given that Movants did not make any representations to Plaintiff at all, it will be impossible for Plaintiff to show that evidence of each of these elements exists. Without such evidence, the claim fails as a matter of law and Movants’ no-evidence motion for summary judgment must be granted. EGLIGENCE . In order to proceed with his negligence claim, Plaintiff must proffer evidence demonstrating that: Defendant owed a legal duty to Plaintiff; Defendant breached that duty; and The breach proximately caused the plaintiff’s injury. Western Invs., 162 S.W.3d at 550; D. Hou., Inc., 92 S.W.3d at 454. Plaintiff cannot offer evidence of each of these three elements, and most significantly cannot ever establish that Movants owed a legal duty to Plaintiff arising outside of any business relationship they had. Without a legal duty, Movants cannot be held liable in tort. Graff, 858 S.W.2d at 919. Just as there are no facts that establish an independent legal duty between Movants and Plaintiff, there are no facts that support the existence of a breach or injury. Without that evidence, the claim fails and must be dismissed. GRAHARKAR HOUDHRI MSJ AGE 22 DTPA IOLATIO