Motion,Ex Parte: DYER CRAIG vs. DYER CUSTOM INSTALLATIONDCX

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ORIGINAL

CRAIG DYER,

CAUSE NO. 04-01100-M
q FEB IB

Moo

ee , 1.97
IN THE DISTRICT COURT

yer te

Plaintiff, in
ib

vs.

DYER CUSTOM INSTALLATION, INC.
(DCI), JOSEPH GEETING,

SUSAN LAMBERT, RICHARD GEETING
and LAURI GEETING

Defendants.
298™ JUDICIAL DISTRICT

 

PRO PLUMBING & APPLIANCE

INSTALLATION, INC. f/k/a DYER

CUSTOM INSTALLATION, INC.
Plaintiff,

VS.

CRAIG DYER, MELISA CONTRERAS,

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and THE ESTATE OF LARRY DYER §
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Defendants. DALLAS COUNTY, TEXAS

DEFENDANTS’ AMENDED NO EVIDENCE MOTION FOR SUMMARY JUDGMENT
AND TRADITIONAL MOTION FOR SUMMARY JUDGMENT AGAINST

PLAINTIFF CRAIG DYER, THE ESTATE OF LARRY DYER AND MELISA
CONTRERAS
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Defendants Dyer Custom Installation, Inc. n/k/a Pro Plumbing &
Appliance Installation, Inc. (“DCT”), Joseph Geeting, Susan Lambert, Richard Geeting, and
Lauri Geeting (collectively, “Defendants”) and file this their Amended No Evidence Motion for

Summary Judgment and Traditional Motion for Summary Judgment against Plaintiff Craig Dyer,the Estate of Larry Dyer and Melisa Contreras pursuant to Rule 166a{c) and (i) of the TEXAS RULES
OF CIVIL PROCEDURE, and in support thereof, would respectfully show the court as follows:

L
SUMMARY JUDGMENT EVIDENCE

1.01 In support of its motion for summary judgment, Defendants rely on the pleadings

of the parties and the following evidence, the authenticity of which is undisputed:

A. Excerpts from November 3, 2008 Deposition of Craig Dyer, a true and correct copy of
which is attached as Exhibit “A”;

B. Excerpts from Deposition of Susan Lambert, a true and correct copy of which is attached
as Exhibit “B”;

Cc. Excerpts from April 18, 2007 Deposition of Craig Dyer, a true and correct copy of which
is attached as Exhibit “C”;

D. Excerpts from Deposition of Larry Dyer, a true and correct copy of which is attached as
Exhibit “D”;

E. Melisa Contreras Assignment, a true and correct copy of which is attached as Exhibit
“EB,

F. Larry Dyer Assignment, a true and correct copy of which is attached as Exhibit “F”:

G. Excerpts from Deposition of Melisa Contreras, a true and correct copy of which is
attached as Exhibit “G”; and

H. DCI’s Corporate By-Laws, a true and correct copy of which is attached as Exhibit “H.”

The above-listed evidence is hereby incorporated by reference.

 

   

z EVIDEN N IM, ENT AN,
MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF CRAIG DYER, THE ESTATE OF LARRY
DYER AND MELISA CONTRERAS - Page 2 of 35II.
BACKGROUND Facts

2.01 On or about January 22, 2001, Plaintiff Craig Dyer (“Plaintiff”) and Defendant
Joseph Geeting (“Geeting”) incorporated DCI, a company specializing in the installation of
appliances, lighting, countertops and the like, in residential homes. At the time of incorporation,
Plaintiff served as President and Geeting served as Vice President, Treasurer and Secretary of the
newly formed corporation. The company issued 1,000 shares of stock to each of its two owners
— 500 shares to Gecting and 500 shares to Plaintiff. Not long after incorporation, however, the
relationship between Plaintiff and Geeting soured when Geeting learmed that Plaintiff had
breached fiduciary duties to the company by using company funds to pay his personal expenses
and debts. When Geeting confronted Plaintiff regarding his unethical conduct and breach of
fiduciary duties, Plaintiff promised to reimburse DCI and to refrain from committing any such
actions in the future. Unfortunately, however, these were not isolated incidents. To the contrary,
violations of fiduciary and ethical duties to DCI and its employees would become Plaintiff's
pattern of conduct throughout the volatile term of his employment.

2.02 While the specific instances of Plaintiff's unethical conduct have been sufficiently
detailed in Defendants’ Counterclaims and previous motions, the following is a brief summary of
Plaintiff's uncthical (and in some instances, criminal) actions as they relate to DCI: 1)
requesting checks be issued to him personally rather than DCI for jobs performed on behalf of
DCT; (2) elevating his salary to four times his original salary for the months of July 2002 through
December 2002 without any regard to DCI’s financial difficulties; (3) not paying DCI’s bills and
expenses timely; (4) utilizing DCI’s bank account for personal use by purchasing furniture for
his home with DCI funds; (5) co-mingling his personal funds with DCI’s funds; (6) using DCI

funds to pay his rent; (7) driving while intoxicated while utilizing DCI’s vehicle; (8) practicing

 

   

NDED NO E' TION SUMMARY JU} ‘
IN FOR. MENT ‘ INTIFF. (ER, THE EST,
Nj ELE INTRE! - Page 3 of 35plumbing without a license in 2001, 2002, and 2003 while performing plumbing work for DCI;
(9) conspiring with Melisa Contreras, Plaintiff's common law wife at the time, to embezzle funds
from DCI; (10) utilizing DCI funds to pay for improvements to his parents’ home; (11) removing
company tools and company materials from DCI without DCI’s permission; (12) committing
identify theft by using DCI’s tax identification number to open a personal T-Mobile cell phone
account; (13) gambling with DCI’s funds; (14) conspiring with Mitchell Madden (“Madden”),
Plaintiff's attorney of record, to form a company to compete directly with DCI while still
President, on the board of directors and a partial owner of DCI; (15) threatening to run DCI out-
of-business despite being a partial owner of DCI; and (16) attempting to coerce employees of
DCI to quit and come to work for him while still partial owner of DCI.

2.03 Because of the aforementioned conduct on the part of Plaintiff, DCI experienced
severe financial difficulties in 2002. In response to these difficulties, Geeting proposed a new
business plan to Plaintiff, whereby Plaintiff would sell 31% of his shares to his father, Larry
Dyer (who died in July of 2007 and whose estate is one of the movants in this present action),
Contreras, and Geeting himself. Thus, on December 12, 2002, the ownership of DCI was
modified as follows:

N. Joseph Geeting: | Owner (51%)

Larry Dyer: Owner (20%)

Craig Dyer: Owner (19%)

Melisa Contreras: Owner (10%)
The new ownership structure allowed Geeting to personally secure several loans and lines of
credit in order to provide immediate cash flow for DCI. Moreover, Geeting required an cxtra 1%
ownership in DCI to ensure that he would have controlling ownership of DCI to protect his

investment and cash infusion as well as prevent Plaintiff from further jeopardizing DCI’s future

by his continued gross mismanagement. After modification of the ownership of the company,

 

NDANTS* ‘DED NO EVIDENCE MOTION Lf JDGMENT AND ION,
IN SU JDXGMENT AGAINST P} E HE ESTATE OF L
DYER AND MELISA CONTRERAS - Page 4 of 35Plaintiff became very upset at the amount of his cash distribution, based upon his new 19%
ownership interest in DCI, and therefore made an effort to re-purchase his stock from his father
and Contreras, who initially refused to sell their shares back to Plaintiff. Thus, the disgruntled
Plaintiff endeavored to form a new company that would compete directly with DCI.

2.04 Because of Plaintiff's numerous unethical and illegal actions, on December 9,
2003, a Board of Directors meeting was convened and Plaintiff was removed as President of
DCI. Larry Dyer was then nominated and elected as President of DCI. The next day, Plaintiff
voluntarily resigned his position as Director and Registered Agent of DCI. Despite such
resignation, Plaintiff attempted to gain access to DCI’s confidential pricing and customer
information on or about December 10” ~ the day after he was terminated — claiming that he was
entitled to such documentation as a shareholder of the company. Understandably, DCI refused to
turn over all of its financial records to Plaintiff, given the fact that Plaintiff was admittedly
seeking to form a company to compete directly with DCI, and had already tortiously interfered
with DCI’s existing business relationships. When he was unable to get the documentation he
wanted, Plaintiff retained the services of Madden (with whom Plaintiff formed Dyer Mechanical
Services, LLC in July of 2004), who filed suit against DCI, Geeting and Susan Lambert, a
director of DCI, on or about February 11, 2004, alleging numerous frivolous causes of action and
seeking discovery of all of DCI’s financial and corporate records. Since that time, Plaintiff has
also asserted claims against Richard Geeting and Lauri Gecting.

2.05 In sum, Plaintiff has alleged the following causes of action against Defendants:
1. Breach of Employment Contract — alleged against DCI;

2. Breach of Rental Contract — alleged against DCI;

3. Fraud/Fraudulent Inducement to Contract — alleged against DCI,Breach of Service Contract — alleged against DCI;
Fraud in Sale and Transfer of Stock — alleged against Joseph Geeting;

Tortious Interference with Contract and Relationships — alleged against Joseph
Geeting, Susan Lambert, Lauri Geeting, and Richard Geeting;

Intentional/Negligent Spoliation — alleged against Defendants;

Aiding and Abetting Breach of Fiduciary Duty — alleged against Joseph Geeting,
Susan Lambert, Lauri Geeting, and Richard Geeting;

Conversion — alleged against Defendants;
Civil Conspiracy — alleged against Defendants;

Oppression of Minority Shareholder — alleged against Joseph Geeting, Susan Lambert,
Lauri Gecting, and Richard Geeting.

2.06 In addition to the foregoing direct causes of action, Plaintiff has filed a purported

shareholder derivative cause of action on behalf of DCI against Joseph Geeting, Susan Lambert,

Lauri Geeting, and Richard Geeting. Because the body of Plaintiff's pleadings relate to claims

for personal compensation as a result of an alleged injury suffered by Plaintiff and alleged breach

of duties owed to Plaintiff — not an injury sustained by, or to enforce a duty owed to DCI -

Plaintiff's purported “derivative” claims are in truth nothing more than personal causes of action

seeking personal damages. However, for the purpose of this Motion, Defendants move for a no-

evidence summary judgment against such derivative causes of action, which include:

2.

3.

Conversion;
Tortious Interference with Contractual Relations; and

Breach of Fiduciary Duty.

 

   

iN. jDGME! JAIN!
DYER AND MELISA CONTRERAS - Page 6 of 35TI.
SUMMARY JUDGMENT STANDARD

A. Traditional Summary Judgment

3.01 A party against whom a claim is asserted may, at any time, move for summary
judgment. Tex. R. Civ. P. 166a(b). A defendant is entitled to summary judgment if it disproves
at least one essential element of the plaintiff's cause of action as a matter of law. See
Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996). A defendant is
equally entitled to summary judgment if it proves every element of its affirmative defense. See
Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997). The purpose of the
summary judgment rule is to eliminate unmeritorious claims or untenable defenses. See City of
Houston y. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex. 1979) (citing Gulbenkian v.
Penn, 252 S.W.2d 929, 931 (Tex. 1952). Summary judgment allows quick disposal of cases that
do not present genuine issues of material fact. See New Jersey Bank v. Knuckley, 637 S.W.2d
920, 921 (Tex. 1982).
B. No-Evidence Summary Judgment

3.02 A movant is entitled to summary judgment if the movant can show that adequate
time for discovery has passed and the non-movant fails to produce evidence to support one or
more essential elements of the non-movant’s claim or defense. ‘TEX. R. Civ. P. 166a(i).
Although the plaintiff need not marshal his proof, he must present sufficiently probative
evidence to raise a genuine issue of material fact as to the challenged elements. See
Southwestern Elec. Power Co. v. Grant, 73 $.W.3d 211, 215 (Tex. 2002). The Court must grant
this Motion unless the respondent produces summary judgment evidence that raises a genuine
issue of material fact. See Flameout Design & Fabrication, Inc. v. Penncoil Caspien Corp., 994

S.W.2d 830 (Tex.App.—Houston 1999, no writ) (citing Jackson v. Fieston Mart, Inc., 979 S.W.2d

 

ENDED NQ EVIDENCE Mi

 

MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF CRAIG DYER, THE ESTATE OF LARRY
DYER AND MELISA CONTRERAS - Page 7 of 3568, 70 (Tex.App.—Austin 1998, no pet.). The evidence produced must “rise to a level that would
enable reasonable and fair-minded people to differ in their conclusions.” Valero Miag. & Supply
Co. v. Kalama Int'l, 51 S.W.3d 345, 351 (Tex. App.— Houston [1" Dist.] 2001, no pet.) (quoting
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). This case has been on
file since February 11, 2004, and is set for trial on May 18, 2009. As such, there has been an
adequate time for discovery.

Iv.
ARGUMENTS & AUTHORITIES

A. TRADITIONAL _AND_NO-EVIDENCE SUMMARY JUDGMENT ON PLAINTIFF’S TORTIOUS
INTERFERENCE WITH CONTRACT CLAIM AGAINST DEFENDANTS.

4.01 In Plaintiffs latest amended petition, Plaintiff has asserted numerous
unsubstantiated and unsupported causes of action against both DCI and the individual
Defendants which have absolutely no evidentiary support. Among other things, Plaintiff has
asserted that Joe Geeting, Susan Lambert, Lauri Geeting and Richard Geeting “tortiously
interfered with contracts between Plaintiff and DCI.” Specifically, Plaintiff alleges that the
individual Defendants in question interfered with a series of employment contracts between
Plaintiff and DCI, a rental contract between Plaintiff and DCI and service contracts between
Plaintiff and DCI. In order to prove that a defendant has tortiously interfered with an existing
contract, the plaintiff must prove the following elements: |) the plaintiff had a valid contract; 2)
the defendant willfully and intentionally interfered with the contract; 3) the interference
proximately caused the plaintiff's injury; and 4) the plaintiff incurred actual damages or loss.
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207 (Tex. 2002). To prove that the defendant acted
“willfully and intentionally,” the plaintiff must show that the defendant cither 1) had actual

knowledge of the contract and of the plaintiff's interest in it, or 2) had knowledge of facts andcircumstances that would lead a reasonable person to believe there was a contract in which the
plaintiff had an interest. See Davis'v. HydPro, Inc., 839 S.W.2d 137, 139-40 (Tex.App.—
Eastland 1992, writ denied). Such knowledge must be more than a mere suspicion of a contract.
Steinmetz & Assocs. v. Crow, 700 S.W.2d 276, 277-78 (Tex.App.—San Antonio 1985, writ ref’'d
n.r.e.). The plaintiff must also prove that the defendant took an active part in persuading the
party to breach its contract with plaintiff, proof that the defendant benefited from the broken
contract is not enough to establish proximate cause. Davis, 839 S.W.2d at 139-40.

4.02 Moreover, Texas law is clear that an agent of a corporation has a qualified
privilege to interfere with the contracts of the corporation for which she works. Eloise Bauer &
Assocs. v. Electronic Rity. Assocs., 621 $.W.2d 200, 203 (Tex.App.—Texarkana 1981, writ ref'd
n.t.e.). Specifically, an employee of a corporation is privileged to induce her employer to breach
a contract with a third person if 1) she acts in good faith to further the interests of her employer,
and 2) she does not use wrongful means. /d. Moreover, the Texas Supreme Court treats the
issue of corporate agent as part of the plaintiff's cause of action, not as an affirmative defense.
Holloway v. Skinner, 898 S.W.2d 793, 796 (Tex. 1995). Thus, in order to prove that the
defendant agent of a corporation has tortiously interfered with a contract between the plaintiff
and the corporation, the plaintiff must also prove that the defendant did not act in good faith to
further the interests of her employer, and used wrongful means to do so. Eloise Bauer &
Assocs., 621 §.W.2d at 203. In this case, not only does Plaintiff have insufficient evidence to
raise a fact issue as to each of the required elements, but Plaintiff has admitted, under oath, that
he has absolutely no admissible evidence of his tortious interference claims against the

individual agents and officer Defendants, as explained in detail below.

 

IN FOR. GA

 

5 IN:
DVER AND MELISA CONTRERAS - Page 9 of 351. No Evidence that Susan Lambert Tortiously Interfered with Plaintiff's Contracts

 

4.03 In Plaintiffs latest amended petition, Plaintiff alleges that Defendant Susan
Lambert, a former officer and Director of DCI, “tortiously interfered with contracts between
Plaintiff and DCI.” Apparently, Plaintiff alleges that Ms. Lambert interfered with his purported
employment contract with DCI, his rental contract with DCI and his service contract with DCI
(though there are apparently no written contracts between Plaintiff and DCI). However, Plaintiff
admitted at his deposition on November 3, 2008 that his only evidence of this purported
interference was conversations between he and DCI employees Ken Carpenter and Jack Petit,
who allegedly informed Plaintiff that Ms. Lambert contacted Home Depot and “was making
accusations against [him] personally.” [C. Dyer Depo, Exhibit A at p. 422, 1. 9 — p. 424, 1}. 8}.
Aside from the fact that Ms. Lambert has denied under oath having such conversations (S.
Lambert Depo, Exhibit B at p. 76, |. 4 - p. 77, |. 8] as well as the fact that the content of such
conversations constitutes double hearsay and is inadmissible as a matter of law, Plaintiff
admitted that he did not even know who Ms. Lambert was talking to when she had these
purported conversations, nor did he know the content of these purported conversations:

Q. Okay. And who do you know was Ms. Lambert making these accusations to at Home
Depot, do you know?

A. 1 do not.

Q. And what was -- specifically, was being said, do you know?

A. I don't. I don't know the content.

[Exhibit A at p. 424, 1. 9 - 14]. Moreover, Plaintiff also admitted that he had not even bothered
to ask Mr. Carpenter or Mr. Petit about the content of these conversations since he filed this
lawsuit:

Q. Well, since you filed this lawsuit, have you bothered to talk to Ken Carpenter or Jack

 

[VIDENCE

 

IN FOR SUMMARY J! MENT INST PLAUNTIFE, 4 HE ES F LARRY
DYERAND MELISA CONTRERAS - Page 10 of 35Petit regarding the specific conversations that were made by Ms. Lambert?

MR. HENDRIX: Object to the form of the question.
A. No.
[Exhibit A at p. 424, 1. 15 - 20].

4.04 Thus, it is clear from Plaintiff's deposition testimony that Plaintiff has insufficient
evidence to raise a genuine issue of material fact that: 1) he had a valid employment, service and
rental contract with DCI; 2) that Ms. Lambert had actual knowledge of these contracts and of the
Plaintiff's interest in them, or had knowledge of facts and circumstances that would lead a
reasonable person to believe there were contracts in which the Plaintiff had an interest; 3) that
Ms. Lambert willfully and intentionally interfered with these contracts; 4) that the interference
proximately caused the Plaintiffs injury; and 5) the Plaintiff incurred actual damages or loss.
See Davis, 839 S.W.2d at 139-40. More importantly, since it is undisputed that Ms. Lambert was
an officer and agent of DCI at the time of this purported interference and that the purported
contracts that Ms. Lambert allegedly interfered with were between DCI and Plaintiff, Plaintiff
must also prove that Ms. Lambert’s qualified privilege to interfere with the contracts of DCI
does not apply in this case. Eloise Bauer & Assocs., 621 S.W.2d at 203. To prove that the
qualified privilege does not apply in this case, the Plaintiff must prove that Ms. Lambert did not
act in good faith to further the interests of her employer, and used wrongful means to interfere in
such contracts. Jd. Again, it is clear from Plaintiff's deposition testimony that Plaintiff has
insufficient evidence to raise a genuine issue of material fact as to these challenged elements.
Therefore, Susan Lambert is entitled to summary judgment as to Plaintiff’s tortious interference

claims under Texas Rules of Civil Procedure 166a(c) and (i).

 

 

y wi ; 7 =.
Al MARY JUL N INST PLAY IG D THE ES
DYER AND MELISA CON ~ Page 11 of 352. No Evidence that Lauri Geeting Tortiously Interfered with Plaintiff's Contracts

 

4.05 In Plaintiff's latest amended petition, Plaintiff alleges that Defendant Lauri
Geeting, a former Director of DCI, interfered with his purported employment contracts with
DCI, his rental contract with DCI and his service contracts with DCI]. However, Plaintiff
admitted at his deposition on November 3, 2008 that he has absolutely no evidence that Lauri
Geeting tortiously interfered with any of his purported contracts with DCI. Specifically, [C.
Dyer Depo, Exhibit A at p. 422, 1. 9— p. 424, 1. 8]. Specifically, when questioned regarding what
evidence he had of Mrs. Geeting’s tortious interference, Plaintiff initially alleged that Lauri
Geeting admitted to him during a telephone conversation that she helped Joseph Geeting
tortiously interfere with these purported contracts. [Ex. A at p. 447, 1. 4-17]. However, when
questioned regarding the substance of these purported conversations, Plaintiff eventually

admitted that Ms. Geeting never admitted any such tortious interference:

 

Q. Did she ever admit that she interfered with that rental contract?
A. No, not to me, no,

Q. Did she ever admit to you that she interfered with your employment contract or series of
employment contracts with DCI?

Not to me.
And did she ever admit that she interfered with your service contract with DCI?

Not to me.

GDP D PK

Who did she admit this to, to -- if anyone?

A. I — I don't know.

[Ex. A at p. 449, 1. 5-16].

4.06 Thus, it is clear from Plaintiff's deposition testimony that Plaintiff has insufficient

evidence to raise a genuine issue of material fact that: 1) he had a valid employment, service and

 

DEFENDANTS" AMENDED NO EVIDENCE MOTION FOR SUMMARY JUDGMENT AND TRADITIONAL
MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF CRAIC DYER, THE ESTATE OF LARRY
DYER AND MELISA CONTRERAS - Page 12 of 35rental contract with DCI; 2) that Lauri Geeting had actual knowledge of these contracts and of
the Plaintiff's interest in them, or had knowledge of facts and circumstances that would lead a
reasonable person to believe there were contracts in which the Plaintiff had an interest; 3) that
Lauri Geeting willfully and intentionally interfered with these contracts; 4) that the interference
proximately caused the Plaintiff’s injury; and 5) the Plaintiff incurred actual damages or loss.
See Davis, 839 §.W.2d at 139-40. More importantly, since it is undisputed that Ms. Geeting was
an agent of DCI at the time of this purported interference and that the purported contracts that
Ms. Geeting allegedly interfered with were between DCI and Plaintiff, Plaintiff must also prove
that Ms. Geeting’s qualifted privilege to interfere with the contracts of DCI does not apply in this
case. Eloise Bauer & Assocs., 621 S.W.2d at 203. Since Plaintiff has insufficient evidence to
raise a genuine issue of material fact that said privilege does not apply, Lauri Geeting is entitled
to summary judgment as to Plaintiff's tortious interference claims under Texas Rules of Civil
Procedure 166a(c) and (i).
3. No Evidence that Richard Geeting Tortiously Interfered with Plaintiff's Contracts
4.07 In Plaintiff's latest amended petition, Plaintiff alleges that Defendant Richard
Geeting, a Director of DCI, also interfered with his purported employment contract with DCI, his
rental contract with DCI and his service contracts with DCI. Again, however, Plaintiff admitted
at his deposition on November 3, 2008 that his only evidence of this purported interference was
conversations between he and DCI employees Ken Carpenter, Jack Petit and Susan Lambert,
who allegedly informed Plaintiff of the interference (which, again, is inadmissible double
hearsay). [Ex. A at p. 458, 1. 13 - 24). Plaintiff went on to admit that he had seen no
documentation evidencing Richard Geeting’s tortious interference with either his purported

employment contract, his service contracts or his rental contract with DCI:

 

DEFENDANTS AMENDED NO EVIDENCE MOTION FOR SUMMARY JUDGMENT AND TRADITIONAL
s THE RRY

DYER AND. MELISS CONTE ERAS - Page 13 of 35Q. Have you seen any documentation other than what your attorneys have prepared that
supports your allegation that Richard Geeting tortiously interfered with your rental
contract with DCI?

MR. HENDRIX: Object to the form of the question. Same -- same issue about the attomey
stuff.

THE WITNESS: Okay.

A. Not that I can recall.

Q. Okay. Have you seen any documentation, other than, obviously, what your attorneys
may have prepared, that support your allegation that Richard Geeting tortiously interfered
with your employment contract or series of employment contracts with DCI?

MR. HENDRIX: Object to the form of the question.

A. Not that I recall.

Q. Have you seen any documentation, other than what your attorneys have prepared, that
support your allegation that Richard Geeting tortiously interfered with your service
contract with DCI?

MR. HENDRIX: Object to the form of the question.

A. Not that I recall.

(Ex. A at p. 460, 1. 5— p. 461, 1. 2].

4.08 Moreover, although Plaintiff filed suit on February 11, 2004, Plaintiff has failed
to elicit any evidence of this purported tortious interference from either deposition testimony,
answers to interrogatories, admissions on file or any other admissible evidence in the five years
that this case has been on file. Thus, it is clear from Plaintiff's deposition testimony that Plaintiff
has insufficient evidence to raise a genuine issue of material fact that: 1) he had valid
employment, service and rental contract with DCI; 2) that Richard Geeting had actual knowledge

of these contracts and of the Plaintiff's interest in them, or had knowledge of facts and

circumstances that would lead a reasonable person to believe there were contracts in which the

Plaintiff had an interest; 3) that Richard Geeting willfully and intentionally interfered with thesecontracts; 4) that the interference proximately caused the Plaintiff's injury; and 5) the Plaintiff
incurred actual damages or loss. See Davis, 839 S.W.2d at 139-40. More importantly, since
Plaintiff admits that Mr. Geeting was an officer and agent of DC] at the time of this purported
interference [Ex. A at p. 461, 1. 25 - p. 462, |. 8] and that the purported contracts that Mr.
Geeting allegedly interfered with were between DCI and Plaintiff, Plaintiff must also prove that
Mr. Geeting’s qualified privilege to interfere with the contracts of DCI does not apply in this
case. Eloise Bauer & Assocs., 621 S.W.2d at 203. Since Plaintiff has insufficient evidence to
raise a genuine issue of material fact that said privilege does not apply, Richard Geeting is
entitled to summary judgment as to Plaintiff's tortious interference claims under Texas Rules of
Civil Procedure 166a(c) and (i).
4, No Evidence that Joseph Geeting Tortiously Interfered with Plaintiffs Contracts
4.09 In Plaintiff's latest amended petition, Plaintiff alleges that Defendant Joseph
Geeting, a an officer and Director of DCI, interfered with his purported employment contract
with DCI, his rental contract with DCI and his service contracts with DCI. However, Plaintiff
cannot, by depositions, answers to interrogatories, admissions in file or other admissible
evidence, demonstrated that there is any evidence to support that: 1) he had valid employment,
service and rental contract with DCI; 2) that Joseph Geeting had actual knowledge of these
contracts and of the Plaintiffs interest in them, or had knowledge of facts and circumstances that
would lead a reasonable person to believe there were contracts in which the Plaintiff had an
interest; 3) that Joseph Geeting willfully and intentionally interfered with these contracts; 4) that
the interference proximately caused the Plaintiff's injury; and 5) the Plaintiff incurred actual
damages or loss. See Davis, 839 §.W.2d at 139-40. Plaintiff also cannot prove that Mr.

Geeting’s qualified privilege to interfere with the contracts of DCI does not apply in this case.

 

 

IN. su aME! ZAINST PI
2 ‘ID MELISA CONTRERAS - Page 15 of 35Eloise Bauer & Assocs., 62) S.W.2d at 203. Specifically, Plaintiff cannot, by depositions,
answers to interrogatories, admissions in file or other admissible evidence, demonstrated that
there is any evidence to support that: 1) Joseph Geeting did not act in good faith to further the
interests of DCI, and; 2) used wrongful means to do so. Jd. Accordingly, this Court should grant
this No-Evidence Motion for Summary Judgment and render judgment in favor of Defendants
that Plaintiff take nothing on any claim or cause of action asserted against Defendants.

B. TRADITIONAL AND NO-EVIDENCE SUMMARY JUDGMENT ON PLAINTIFF’S CONSPIRACY
CLAIMS

4.10 In Plaintiff's latest amended petition, Plaintiff has alleged that Susan Lambert,
Lauri Gecting and Richard Geeting engaged in a civil conspiracy with Joseph Geeting and/or
DCI, whose objective was “to induce Plaintiff into performing service work for DCI...without
paying him for that work,” and “to engage in other torts and wrongful conduct herein alleged.”
To prevail on his cause of action for civil conspiracy against the named Defendants, Plaintiff
must establish the following elements: 1) the Defendants were members of a combination of two
or more persons; 2) the object of the combination was to accomplish: a) an unlawful purpose; or
b) a lawful purpose by unlawful means; 3) the members had a meeting of the minds on the object
or course of action; 4) one of the members committed an unlawful, overt act to further the object
or course of action; and 5) the plaintiff suffered injury as a proximate result of the wrongful act.
Chon Tri v. J.T.T., 162 8.W.3d 552, 556 (Tex. 2005). As explained below, not only does
Plaintiff have insufficient evidence to raise a fact issue as to each of the required elements, but
Piaintiff has admitted, under oath, that he has absolutely no admissible evidence of his

conspiracy claims against the Defendants.

 

 

JUDGMENT AND TRADITION,

MOTION FOR SOMMARY JUDGMENT ‘AGAINST PLAINTIFF CRAIG DYER, THE ESTATE OF LARRY
DYER AND MELISA CONTRERAS - Page 16 of 351. No Evidence that Lauri Geeting Participated in Conspira

 

4.11 As stated above, Plaintiff has alleged in his latest amended petition that Lauri
Geeting participated in a civil conspiracy with the other named Defendants “to induce Plaintiff
into performing service work for DCI...without paying him for that work,” and “to engage in
other torts and wrongful conduct herein alleged.” However, during his deposition on November
3, 2008, Plaintiff admitted he had absolutely no evidence of Lauri Geeting’s involvement in this
purported conspiracy:

Q. Okay. Just so we're clear on the record then. Pushing aside or setting aside any
documentation that would have been prepared by your attorneys in this lawsuit, because
that's work product, have you reviewed any other documentation that supports your
allegations that Lauri Geeting conspired with Joseph Geeting against you?

MR. HENDRIX: Object to the form of the question.

A. No, not that I recall.

[Ex. A at p. 455, 1. 3-11].

Moreover, although this case has been on file for more than five (5) years, Plaintiff has failed to

elicit any evidence of this purported conspiracy from either deposition testimony, answers to

interrogatories, admissions on file or any other admissible evidence. Thus, it is clear from

Plaintiff's deposition testimony that Plaintiff has insufficient evidence to raise a genuine issue of

material fact that: Lauri Geeting was one of a combination of two or more persons; 2) whose

object was to accomplish: a) an unlawful purpose; or b) a lawful purpose by unlawful means; 3)

that Lauri Geeting and the other members had a meeting of the minds on the object or course of

action; 4) that one of the members committed an unlawful, overt act to further the object or

course of action; and 5) Plaintiff suffered injury as a proximate result of the wrongful act. Chon

Tri v. DT.T., 162 S.W.3d 552, 556 (Tex. 2005). As such, Defendants are entitled to summary

 

 

MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFF CRAIG DYER, THE ESTATE OF LARRY
DYER AND MELISA CONTRERAS - Page 17 of 35judgment pursuant to Rule 166a(c) and (i) of the Texas Rules of Civil Procedure as to Plaintiff's
conspiracy claim against Lauri Geeting as a matter of law.

2. No Evidence that Richard Geeting Participated in Conspira

 

4.12 In Plaintiff’s latest amended petition, Plaintiff claims that Richard Geeting was a
part of this purported civil conspiracy with the other named Defendants. However, during his
deposition, Plaintiff admitted he had absolutely no evidence that Richard Geeting participated in
this purported conspiracy:

Q. Going on to civil conspiracy count II against Richard Geeting, do you have any evidence

that supports your allegations that Richard Geeting conspired or was involved in a

conspiracy against you?

MR. HENDRIX: Object to the form of the question, and same instruction as to any
conversations with your attorneys.

A. Not that I can recall.

(Ex. A at p. 461, 1. 14-21).

Thus, it is clear from Plaintiff's deposition testimony that Plaintiff has insufficient evidence to
raise a genuine issue of material fact that: Richard Geeting was one of a combination of two or
more persons; 2) whose object was to accomplish: a) an unlawful purpose; or b) a lawful purpose
by unlawful means; 3) that Richard Geeting and the other members had a meeting of the minds
on the object or course of action; 4) that one of the members committed an unlawful, overt act to
further the object or course of action; and 5) 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). As such, Defendants are
entitled to summary judgment pursuant to Rule 166a(c) and (i) of the Texas Rules of Civil

Procedure as to Plaintiff's conspiracy claim against Richard Geeting as a matter of law.3. No_Evidence_that Susan Lambert, Joseph Geeting and DCI Participated in
Conspiracy

 

4.13 In Plaintiff's latest amended petition, Plaintiff claims that Susan Lambert, Joseph
Geeting and DCI were also a part of this alleged civil conspiracy with the other named
Defendants “to induce Plaintiff into performing service work for DCI...without paying him for
that work,” and “to engage in other torts and wrongful conduct herein alleged.” However,
Plaintiff has insufficient evidence to raise a genuine issue of material fact that: 1) Susan Lambert,
Joseph Geeting and DCI were members of a group; 2) whose object was to accomplish: a) an
unlawful purpose; or b) a lawful purpose by unlawful means; 3) that Susan Lambert, Joseph
Geeting and DCI and the other members had a meeting of the minds on the object or course of
action; 4) that one of the members committed an unlawful, overt act to further the object or
course of action; and 5) Plaintiff suffered injury as a proximate result of the wrongful act. Chon
Tri v. L.T.T., 162 S.W.3d 552, 556 (Tex. 2005). As such, Defendants are entitled to summary
judgment pursuant to Rule 166a(i) of the Texas Rules of Civil Procedure as to Plaintiff's
conspiracy claim against Susan Lambert, Joseph Geeting and DC] as a matter of law.

Cc. TRADITIONAL AND_NO-EVIDENCE SUMMARY JUDGMENT ON PLAINTIFF’S AIDING AND
ABETTING BREACH OF FIDUCIARY DUTY CLAIMS

 

4.14 In Plaintiff's latest amended petition, Plaintiff has alleged that Susan Lambert,
Lauri Geeting, Richard Geeting and Joseph Geeting “aided and abetted” Defendants’ legal
counsel, Matthew A. Nowak, to breach a fiduciary duty owed by Mr. Nowak to DCI.
Specifically, Plaintiff alleges that Mr. Nowak’s representation of the Defendants “presents a
conflict of interest in that the interests of the corporation are divergent from the interest from the
individual defendant and the interest of Plaintiff.” To prevail on his cause of action for aiding

and abetting a breach of fiduciary duty, Plaintiff must first establish the elements of a breach of

 

   

DYER AND MELISA CONTRERAS - Page 19 of 35fiduciary duty cause of action against Mr. Nowak, which are as follows: 1) Matthew Nowak had
a fiduciary relationship with DCI; 2) Matthew Nowak breached his fiduciary duty to DCI; and 3)
Matthew Nowak’s breach resulted in an injury to DCI or benefit to Matthew Nowak. Hawthorne
v. Guenther, 917 $.W.2d 924, 934-35 (Tex.App—Beaumont 1996, writ denied). In this case,
there is insufficient evidence to raise a genuine issue of material fact as to the following elements
of Plaintiff's cause of action: 1) Matthew Nowak breached his fiduciary duty to DCI; or 2)
Matthew Nowak’s alleged breach resulted in an injury to DCI or benefit to Matthew Nowak. /d.
In fact, when Plaintiff was asked whether he had any evidence to prove that he has been harmed
or damaged by this purported breach during his deposition, Plaintiff's response was, “No. I
mean, just — po,” thus, admitting that he has no evidence of the second element of his breach of
fiduciary duty claim. (Ex. A at p. 446, 1. 14 — 22]. Since Plaintiff cannot present sufficient
evidence to raise a genuine issue of material fact as to whether Matthew Nowak breached his
fiduciary duty to DCI and caused Plaintiff harm thereby, Joseph Geeting, Susan Lambert, Lauri
Geeting, and Richard Geeting cannot have aided and abetted Matthew Nowak in breaching his
fiduciary duty. Thus, Joseph Geeting, Susan Lambert, Lauri Geeting, and Richard Geeting are
entitled to summary judgment on Plaintiff's cause of action for aiding and abetting breach of
fiduciary duty as matter of law.

4.15 In the event that Plaintiff does present sufficient evidence to raise a genuine issue
of material fact as to whether Matthew Nowak breached his fiduciary duty to DCI, Joseph
Geeting, Susan Lambert, Lauri Geeting, and Richard Geeting are still entitled to summary
judgment against Plaintiff's claim of aiding and abetting breach of fiduciary duty because
Plaintiff cannot present sufficient evidence to establish a genuine issue of material fact as to

whether Joseph Geeting, Susan Lambert, Lauri Geeting, and Richard Geeting knowinglyparticipated in a breach of fiduciary duty. Kinzbach Toll Co. v. Corbett-Wallace Corp., 160
S.W.2d 509, 574 (Tex. 1942). In order to prove that the individual Defendants aided and abetted
Mr. Nowak’s breach of fiduciary duty to DCI, the Plaintiff must prove: 1) the primary actor’s
activity accomplished a tortious result; 2) the defendant had knowledge that the primary actor’s
conduct constituted a tort; 3) the defendant had the intent to assist the primary actor in
committing the tort; 4) the defendant gave the primary actor assistance or encouragement; and 5)
the defendant’s assistance or encouragement was a substantial factor in causing the tort. Juhl v.
Airington, 936 S.W.2d 640, 644 (Tex. 1996); Crisp v. Southwest Bancshares Leasing Co., 586
S.W.2d 610, 613 (Tex.App.—Amarillo 1979, writ ref'd n.r.e.). Not only does the Plaintiff have
insufficient evidence to raise a fact issue as to each of these challenged elements, but Plaintiff
has also admitted, under oath, that he has absolutely no admissible evidence of his aiding and
abetting claims against Susan Lambert, Lauri Geeting and Richard Geeting, as explained in
detail below. As such, Defendants are entitled to summary judgment pursuant to Rules 166a(c)

and (i) of the Texas Rules of Civil Procedure as to Defendants’ aiding and abetting claims.

1. No Evidence that Lauri Geeting Aided and Abetted Mr. Nowak’s Purported Breach
of Fiduciary Duty

4.16 As stated above, Plaintiff has alleged in his latest amended petition that Laun
Geeting “aided and abetted” Defendants’ legal counsel, Matthew A. Nowak, to breach a
fiduciary duty owed by Mr. Nowak to DCI. However, during his deposition on November 3,
2008, Plaintiff admitted he had absolutely no evidence of such claims against Mrs. Gceting.

Q. I'm talking about, have you seen any other documentation that's been involved in this
lawsuit that supports your allegation that Lauri Geeting was involved in aiding and
abetting breach of her fiduciary duties against you?

MR. HENDRIX: Object to the form of the question.

A. Not that I recall.
DEFENDANTS’ AMENDED NO EVIDENCE MOTION FOR SUMMARY JUDGMENT AND TRADITIONAL
‘] NFA sl FP , 0 RAN ) >

DYER AND MELISA CONTRERAS - Page 21 of 35(Ex. A at p. 457, 1 25 — p. 458, 1. 6]

Thus, it is clear that even if Plaintiff can prove that Mr. Nowak breached his fiduciary duties to
DCI by representing the individual Defendants to this lawsuit, Plaintiff has no admissible
evidence that: 1) Mrs. Geeting had knowledge that the Mr. Nowak’s conduct constituted a tort;
2) Mrs. Geeting had the intent to assist Mr. Nowak in committing the tort; 3) Mrs. Geeting gave
Mr. Nowak assistance or encouragement in committing the tort; and 5) her assistance or
encouragement was a substantial factor in causing the tort. As such, Defendants are entitled to

summary judgment as to Plaintiff's aiding and abetting claim against Lauri Geeting.

2. No Evidence that Richard Geeting Aided and Abetted Mr. Nowak’s Purported
Breach of Fiduciary Duty

4.17 As stated above, Plaintiff has alleged in his latest amended petition that Richard
Geeting also “aided and abetted” Defendants’ legal counsel, Matthew A. Nowak, to breach a
fiduciary duty owed by Mr. Nowak to DCI. However, during his deposition on November 3,
2008, Plaintiff admitted he had absolutely no evidence of such claims against Mr. Geeting:

Q. Do you have any evidence, as you sit here today, other than what your attorneys may
have prepared that support your allegations that Richard Geeting aided abetted breach of
fiduciary duties?

MR. HENDRIX: Object to the form of the question.

A. Not that I recall.

(Ex. A at p. 462, 1. 24 - p. 463, 1. 5). Thus, it is clear that even if Plaintiff can prove that Mr.

Nowak breached his fiduciary duties to DCI by representing the individual Defendants to this

lawsuit, Plaintiff has no admissible evidence that: 1) Richard Geeting had knowledge that the

Mr. Nowak’s conduct constituted a tort; 2) Richard Geeting had the intent to assist Mr. Nowak in

committing the tort; 3) Richard Geeting gave Mr. Nowak assistance or encouragement in

committing the tort; and 5) his assistance or encouragement was a substantial factor in causing

 

DEFENDANTS’ AMENDED NO EVIDENCE MOTION FOR SUMMARY JUDGMENT AND TRADITIONAL
SUMMAR' iDGMENT AGAINST PLAINTIFF EI E TE,

DYER AND MELISA CONTRERAS - Page 22 of 35the tort. As such, Defendants are entitled to summary judgment as to Plaintiff's aiding and
abetting claim against Richard Geeting.

3. No Evidence that Susan Lambert Aided and Abetted Mr. Nowak’s Purported
Breach of Fiduciary Duty

 

4.18 As stated above, Plaintiff has alleged in his latest amended petition that Susan
Lambert also “aided and abetted” Defendants’ legal counsel, Matthew A. Nowak, to breach a
fiduciary duty owed by Mr. Nowak to DCI. However, during his deposition on November 3,
2008, Plaintiff admitted he had absolutely no evidence of such claims against Ms. Lambert:

Q. So your allegations that Susan Lambert aided and abetted breach of fiduciary duties
involves the fact that my firm and myself represent the different defendants in this case?
Yes.

And based on that fact, that somehow you've been harmed?

Yes.

o > Oo Pp

And how have you been harmed by the fact that I've represented different defendants in

this case, including the individuals in DCI?

MR. HENDRIX: Object to the form of the question.

A. I -- I do believe that there was a content -- conflict of interest.

Q. (BY MR. NOWAK) Okay. Have you not reviewed the -- the waivers of conflict of
interest that have been vo- --provided you in this case?

A. Yes.

Q. Okay. And you still believe, despite that fact, that somehow you've been harmed or

damaged by the fact that my firm, so long as myseif -- along with myself are representing

all the defendants in this case?

 

MMARY JI

  

Mi IN SU Y. ENT AGAINST PL. FF CRAIG DYE!
DYER AND MELISA CONTRERAS - Page 23 of 35Q. Do you have any evidence to prove that?

MR. HENDRIX: Object to the form of the question.

A. No. I mean, just — no.

{Ex. A at p. 445, 1. 20 - p. 446, 1. 22]. Thus, it is clear that even if Plaintiff can prove that Mr.
Nowak breached his fiduciary duties to DCI by representing the individual Defendants to this
lawsuit, Plaintiff has no admissible evidence that: 1) Susan Lambert had knowledge that the Mr.
Nowak’s conduct constituted a tort; 2) Susan Lambert had the intent to assist Mr. Nowak in
committing the tort; 3) Susan Lambert gave Mr. Nowak assistance or encouragement in
committing the tort; and 5) her assistance or encouragement was a substantial factor in causing
the tort. As such, Defendants are entitled to summary judgment as to Plaintiff's aiding and

abetting claim against Susan Lambert.

4. No Evidence that Joseph Geeting Aided and Abetted Mr. Nowak’s Purported
Breach of Fiduciary Duty

4.19 Finally, Plaintiff has alleged in his latest amended petition that Joseph Gecting
also “aided and abetted” Defendants’ legal counsel, Matthew A. Nowak, to breach a fiduciary
duty owed by Mr. Nowak to DCI. However, it is clear that even if Plaintiff can prove that Mr.
Nowak breached his fiduciary duties to DCI by representing the individual Defendants to this
lawsuit, Plaintiff has no admissible evidence that: 1) Joseph Geeting had knowledge that the Mr.
Nowak’s conduct constituted a tort; 2) Joseph Geeting had the intent to assist Mr. Nowak in
committing the tort; 3) Joseph Geeting gave Mr. Nowak assistance or encouragement in
committing the tort; and 5) his assistance or encouragement was a substantial factor in causing

the tort. As such, Defendants are entitled to summary judgment as to Plaintiff's aiding and

abetting claim against Joseph Geeting.D. NO-EVIDENCE MOTION AS TO _PLAINTIFF’S BREACH OF EMPLOYMENT CONTRACT
CAUSE OF ACTION

4.20 In Plaintiff's latest amended petition, Plaintiff alleges that back in January of
2001, Plaintiff “entered into an agreement whereby...Plaintiff would enter into an employment
contract for a period of one (1) year increments with” DCI. Plaintiff alleges that DC] breached
this “series of [one year] contractual agreements of employment for term and compensation”
when DCI “failed to pay Plaintiff monies due under his compensation agreement(s)” and when
“Defendant DCI terminated the employment agreement without cause.” However, Texas is an
employment at-will estate wherein employers may terminate employees at any time with or
without cause. Texas Farm Bureau Mut. Ins. Cos. v. Sears, 84 S.W.3d 604, 607 (Tex. 2002).
Thus, DCI did not breach these purported series of employment contracts with Plaintiff,
regardless of whether Plaintiff was terminated without cause. Moreover, Plaintiff cannot, by
depositions, answers to interrogatories, admissions on file or other admissible evidence, present
sufficient summary judgment evidence to establish a genuine issue of material fact as to one or
more of the essential elements of his breach of employment contract cause of action. To prevail
on his breach of employment contract cause of action against DCI, Plaintiff must establish the
following elements: 1) Plaintiff had a valid, enforceable contract with DCI; 2) Plaintiff
performed, tendered performance of, or was excused from performing his contractual
obligations; 3) DCI breached the contract; and 4) DCI’s breach caused Plaintiff injury.
Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 198 (Tex.App. — Fort Worth 2006, no
pet.). In this case, Plaintiff cannot present sufficient summary judgment evidence establishing a
genuine issue of material fact as to each of the following elements: 1) Plaintiff had a valid,
enforceable contract with DCI; 2) Plaintiff performed, tendered performance of, or was excused

from performing his contractual obligations; 3) DCI breached the alleged contract; and 4) DCI’s

 

MENDED NO EVIDENCE NE Nj

 

see SR AE AHY ADEMESE acer PLAINTIFF CRAIG DYER, THE ESTATE OF LARRY
DYER AND MELISA CONTRERAS - Page 25 of 35alleged breach caused Plaintiff injury. Therefore, DCI is entitled to summary judgment on
Plaintiff's cause of action for breach of employment contract as a matter of law.

E. No-EviDENCE MOTION AS TO PLAINTIFF’S BREACH OF RENTAL CONTRACT CAUSE OF
ACTION

4.21 Plaintiff cannot, by depositions, answers to interrogatories, admissions on file or
other admissible evidence, present sufficient summary judgment evidence to establish a genuine
issue of material fact as to one or more of the essential elements of his breach of rental contract
cause of action. To prevail on his breach of rental contract cause of action against DCI, Plaintiff
must establish the following elements: 1) Plaintiff had a valid, enforceable contract with DCI, 2)
Plaintiff performed, tendered performance of, or was excused from performing his contractual
obligations; 3) DCI breached the contract; and 4) DCI’s breach caused Plaintiff injury.
Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 198 (Tex.App. — Fort Worth 2006, no
pet.). In this case, Plaintiff cannot present sufficient summary judgment evidence establishing a
genuine issue of material fact as to each of the following elements: 1) Plaintiff had a valid,
enforceable contract with DCI; 2) Plaintiff performed, tendered performance of, or was excused
from performing his contractual obligations; 3) DCI breached the alleged contract; and 4) DCI’s
alleged breach caused Plaintiff injury. Therefore, DCI is entitled to summary judgment on
Plaintif