Preview
FILED
1/13/2022 10:08 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
No. DC-20-12534
RENATA PETRYLIENE AND BIG § IN THE DISTRICT COURT
RIVER NV,
§§§§§§§§§§§§§§§§§§§§§§§§§§§
Plaintiffs/Counter—Defendants,
v.
BRADFORD PHILLIPS, INDIVIDUALLY
ICC SURRWOOD CORP.,
CHEYENNE ASSET MANAGEMENT,
INC. DONALD W. PHILLIPS, MICKEY
NED PHILLIPS, NICKEY TED PHILLIPS 19lst JUDICIAL DISTRICT
LONGFELLOW INVESTORS I, LLC,
LONGFELLOW INVESTORS II, LLC,
LONGFELLOW INVESTORS III, LLC,
LONGFELLOW INVESTORS IV, LLC,
LONGFELLOW INVESTORS V, LLC,
LOUIS J. CORNA, KENNETH K.
FOGG, AND BENNETT, WESTON,
LAJONE & TURNER, P.C.,
Defendants/Counter—Plaintiffs
V.
DALLAS HRS DEVELOPMENT, INC.
AND JRG INVESTMENT CO. INC.
Intervenors DALLAS COUNTY, TEXAS
NO EVIDENCE MOTION FOR SUMNIARY JUDGMENT ON DEFENDANT
CHEYENNE ASSET MANAGEMENT, INC.
Defendant Cheyenne Asset Management, Inc. (“Cheyenne”) files this no-evidence motion
for summary judgment pursuant to Tex. R. CiV. P. 166a(i) and requests that the Court enter
judgment against Plaintiffs Renata Petryliene (“Petryliene”) and Big River NV (“Big River”)
(collectively “P1aintiffs”) on all of Plaintiffs’ causes of action.
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 1 OF 11
I. NATURE 0F THE DISPUTE
Plaintiffs have sued the children of Gene E. Phillips (deceased), Cheyenne and several
other persons/entities affiliated with Gene E. Phillips. Cheyenne is an administrative entity which
provided bookkeeping and recordkeeping services for several entities affiliated with Gene E.
Phillips.
Based upon whatever relationship Petryliene had with Gene E. Phillips prior to his death,
Petryliene signed Promissory Notes and received over $4 million in loans from various entities at
the direction of Gene E. Phillips, in addition to multiple outright gifts. Notwithstanding her good
fortune during Gene E. Phillips’ lifetime, Petryliene and Big River, NV, LLC, an entity Petryliene
claims to own, now assert various causes of action seeking millions more in this lawsuit. Plaintiffs
are pursuing identical causes of action against Gene E. Phillips’ estate in Cause No. PR-21-01070-
1; In the Estate of Gene Phillips, Deceased, pending in Dallas County Probate Court No. 1.
This No Evidence Motion for Summary Judgment is filed because there is no evidence that
supports Plaintiffs’ claims against any of the Defendants, herein including Cheyenne.
II. SUMMARY 0F ARGUMENT
Despite the Orders of this Court at the November 9, 2021 hearing on Defendants’ Motions
to Compel, Plaintiffs have not produced a single document or any information which supports any
material fact alleged in Plaintiffs’ pleadings. Likewise, Plaintiffs have not meaningfully responded
to Cheyenne’s Interrogatories or Requests for Admission. There has been more than adequate
time for discovery.
The simple truth is that either Plaintiffs have chosen to violate the Orders of this Court or
there is no evidence to support Plaintiffs’ claims against any of the Defendants, including
Cheyenne.
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 2 0F 1 1
III. PLAINTIFFS’ CLAIMS
Petryliene and Big River sue Cheyenne for:
1. Aiding and abetting breach of fiduciary duty. See Plaintifl’s Original Petition at
1H] 44-46.
2. Conspiracy to breach fiduciary duty. See Plaintifl’s Original Petition at 1H] 47-49.
3. Conspiracy to commit fraud. See Plaintifl’s Original Petition at 1H] 5 0-55.
4. Aiding and abetting fraud. See Plaintiff’s Original Petition at 1m 5 0-55.
IV. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
Pursuant to Rule l66a(i), Tex. R. CiV. P., Cheyenne moves for a summary judgment
because there is no issue raising a genuine issue of material fact on one or more of the essential
elements of each claim alleged by Plaintiffs;
1. AIDING AND ABETTING BREACH 0F FIDUCIARY DUTY CLAIMS
The elements of a claim for aiding and abetting a breach of fiduciary duty are: (1) the
primary actor’s activity constituted a breach of fiduciary duty to the Plaintiff, (2) the Defendant
knows the primary actor's conduct constituted a breach of fiduciary duty, (3) the Defendant
provided substantial assistance to the primary actor in accomplishing the result, (4) the Defendant's
own conduct, separate from the primary actor's conduct, was a breach of duty to the Plaintiff, and
(5) the Defendant's participation was a substantial factor in causing the breach of fiduciary duty.
See Nettles v. GTECH Corp., 603 S.W.3d 63, 75 (Tex. 2020) (aiding and abetting and conspiracy
are theories of derivative or Vicarious liability which depend upon liability for an underlying tort
and they survive or fail alongside that tort); Graffv. 2920 Park Grove Venture, Ltd., No. 05-16-
01411-CV, 2018 Tex. App. LEXIS 4266, at *17 (Tex. App—Dallas June 13, 2018, pet. denied).
The elements of a claim for breach of fiduciary duty are: (i) a fiduciary relationship existed
between the plaintiff and defendant; (ii) the defendant breached its fiduciary duty to the plaintiff;
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 3 0F 11
and (iii) the defendant‘s breach injured the plaintiff or benefited the defendant. Anderton v. Cawley,
378 S.W.3d 38, 51 (Tex. App—Dallas 2012, no pet).
a. As to Petryliene
Cheyenne is entitled to judgment as a matter of law and moves for no-eVidence summary
judgment on the claim for aiding and abetting a breach of fiduciary duty made by Petryliene
because there is no evidence of each of the following elements of that claim:
1. that any of the Defendants’ activities, as a primary actor,
constituted a breach of fiduciary duty to Petryliene;
2. that Cheyenne knew that the primary actor's conduct
constituted a breach of fiduciary duty;
3. that Cheyenne provided substantial assistance to the primary
actor in accomplishing the result;
4. that the conduct of Cheyenne, separate from the primary
actor's conduct, was a breach of duty to Petryliene; and
5. The participation of Cheyenne was a substantial factor in
causing the breach of fiduciary duty.
Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for aiding and
abetting breach of fiduciary duty made by Petryliene.
b. As to Big River
Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary
judgment on the claim for aiding and abetting a breach of fiduciary duty made by Big River
because there is no evidence of each of the following elements of that claim:
1. that any of the Defendants’ activities, as a primary actor,
constituted a breach of fiduciary duty to Big River;
2. that Cheyenne knew that the primary actor's conduct
constituted a breach of fiduciary duty;
3. that Cheyenne provided substantial assistance to the primary
actor in accomplishing the result;
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 4 0F 1 1
4. that the conduct of Cheyenne, separate from the primary
actor's conduct, was a breach of duty to Big River; and
5. that the participation of Cheyenne was a substantial factor in
causing the breach of fiduciary duty.
Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for aiding and
abetting breach of fiduciary duty made by Big River.
2. CONSPIRACY To BREACH FIDUCIARY DUTY CLAIMS
The elements of a claim for conspiracy to breach fiduciary duty are: 1) liability for a breach
of fiduciary duty as to the Plaintiff; 2) that the Defendant was a member of a combination of two
or more persons; 3) that the object of the combination was to accomplish a breach of fiduciary
duty; 4) that the members had a meeting of the minds on the object or course of action; 5) that one
of the members committed an unlawful, overt act to further the object or course of action; and 6)
that damages were suffered by Plaintiff as a proximate result of the wrongful act. See Nettles v.
GTECH Corp, 603 S.W.3d 63, 75 (Tex. 2020) (aiding and abetting and conspiracy are theories of
derivative or Vicarious liability which depend upon liability for an underlying tort and they survive
or fail alongside that tort); Cohen v. NewBz'ss Prop, L.P, No. 01-19-00397-CV, 2020 Tex. App.
LEXIS 9190, at *18 (Tex. App—Houston [1st Dist.] Nov. 24, 2020, pet. filed). Moreover, an
actionable civil conspiracy exists only as to those parties who are aware of the intended harm or
proposed wrongful conduct at the outset of the combination or agreement. Id.
a. As to Petryliene
Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary
judgment on the claim for conspiracy to breach fiduciary duty made by Petryliene because there
is no evidence of each of the following elements of that claim:
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 5 0F 11
1. that any of the defendants’ activities, as a primary actor,
constituted a breach of fiduciary duty to Petryliene;
2. that Cheyenne was a member of a combination of two or
more persons;
3. that the object of the combination was to accomplish a
breach of fiduciary duty;
4. that Cheyenne and the primary actor had a meeting of the
minds on the breach of fiduciary duty or course of action;
5. that one of the defendants committed an unlawful, overt act
to further the breach of fiduciary duty or course of action;
6. that damages were suffered by Petryliene as a proximate
result of the wrongful act; and that
7. that Cheyenne was aware of the intended harm or proposed
wrongful conduct at the outset of the combination or
agreement.
Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for conspiracy to
commit breach of fiduciary duty made by Petryliene.
b. As to Big River
Cheyenne is entitled to judgment as a matter of law and moves for no-eVidence summary
judgment on the claim for conspiracy to breach fiduciary duty made by Big River because there is
no evidence of each of the following elements of that claim:
l. that any of the defendants’ activities, as a primary actor,
constituted a breach of fiduciary duty to Big River;
2. that Cheyenne was a member of a combination of two or
more persons;
3. that the object of the combination was to accomplish a
breach of fiduciary duty;
4. that Cheyenne and the primary actor had a meeting of the
minds on the breach of fiduciary duty or course of action;
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 6 0F 1 1
5. that one of the defendants committed an unlawful, oveIt act
to further the breach of fiduciary duty or course of action;
6. that damages were suffered by Big River as a proximate
result of the wrongful act; and that
7. that Cheyenne was aware of the intended harm or proposed
wrongful conduct at the outset of the combination or
agreement.
Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for conspiracy to
commit breach of fiduciary duty made by Big River.
3. CONSPIRACY To COMMIT FRAUD CLAIMS
The elements of a claim for conspiracy to commit fraud are: 1) a party is liable to plaintiff
for fraud; 2) that the defendant was a member of a combination of two or more persons; 3) that the
object of the combination was to accomplish fraud; 4) that the members had a meeting of the minds
on the object or course of action; 5) that one of the members committed an unlawful, overt act to
further the object or course of action; and 6) that damages were suffered by plaintiff as a proximate
result of the wrongful act. See Nettles v. GTECH Corp., 603 S.W.3d 63, 75 (Tex. 2020) (aiding
and abetting and conspiracy are theories of derivative or Vicarious liability which depend upon
liability for an underlying tort and they survive or fail alongside that tort); Cohen v. NewBz'ss Prop,
L.P, No. 01-19-00397-CV, 2020 Tex. App. LEXIS 9190, at *18 (Tex. App—Houston [lst Dist.]
Nov. 24, 2020, pet. filed). Moreover, an actionable civil conspiracy exists only as to those parties
who are aware of the intended harm or proposed wrongful conduct at the outset of the combination
or agreement. Id.
The elements of a claim for fraud are: (1) that a party made material representation to
plaintiff; (2) the representation was false; (3) when the representation was made, the party knew it
was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4)
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 7 0F 11
the party made the representation with the intent that the other party should act upon it; (5) the
plaintiff acted in reliance on the representation; and (6) the plaintiff thereby suffered injury. Italian
Cowboy Partners, Ltd. v. Prudential Ins. C0. ofAm, 341 S.W.3d 323, 337 (Tex. 2011).
a. As to Petryliene
Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary
judgment on the claim for conspiracy to commit fraud made by Petryliene because there is no
evidence of each of the following elements of that claim:
l. that any party, as a primary actor, is liable to Petryliene for fraud;
2. that Cheyenne was a member of a combination of two or more
persons;
3. that the object of the combination was to accomplish fraud;
4. that the members had a meeting of the minds on the object or course
of action;
5. that one of the members committed an unlawful, overt act to further
the object or course of action;
6. that damages were suffered by Petryliene as a proximate result of
the wrongful act; and
7. that Cheyenne was aware of the intended harm or proposed
wrongful conduct at the outset of the combination or agreement.
Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for conspiracy to
commit fraud made by Petryliene.
b. As to Big River
Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary
judgment on the claim for conspiracy to commit fraud made by Big River because there is no
evidence of each of the following elements of that claim:
l. that any party, as a primary actor, is liable to Big River for fraud;
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 8 0F 11
2. that Cheyenne was a member of a combination of two or more
persons;
3. that the object of the combination was to accomplish fraud;
4. that the members had a meeting of the minds on the objector course
of action;
5. that one of the members committed an unlawful, overt act to further
the object or course of action;
6. that damages were suffered by Big River as a proximate result of the
wrongful act; and
7. that Cheyenne was aware of the intended harm or proposed
wrongful conduct at the outset of the combination or agreement.
Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for conspiracy to to
commit fraud made by Big River.
4. AIDING AND ABETTING FRAUD CLAIMS
The elements of a claim for aiding and abetting fraud are: (1) liability of a primary actor
for fraud as to the plaintiff; (2) the defendant knows the primary actor's conduct constituted fraud,
(3) the defendant provided substantial assistance to the primary actor in accomplishing the result,
(4) the defendants’ own conduct, separate from the primary actor‘s conduct, was a breach of duty
to the Plaintiff, and (5) the defendant's participation was a substantial factor in causing the fraud.
See Nettles v. GTECH Corp., 603 S.W.3d 63, 75 (Tex. 2020) (aiding and abetting and conspiracy
are theories of derivative or vicarious liability which depend upon liability for an underlying tort
and they survive or fail alongside that tort); Cohen v. NewBiss Prop, L.P, No. 01-19-00397-CV,
2020 Tex. App. LEXIS 9190, at *18 (Tex. App—Houston [1st Dist.] Nov. 24, 2020, pet. filed).
Moreover, an actionable civil conspiracy exists only as to those parties who are aware of the
intended harm or proposed wrongfiil conduct at the outset of the combination or agreement. Id.
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 9 0F 1 1
a. As to Petryliene
Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary
judgment on the claim for aiding and abetting fraud made by Petryliene because there is no
evidence of each of the following elements of that claim:
l. that any party, as a primary actor, is liable to Petryliene for
fraud;
2. Cheyenne knew the primary actor's conduct constituted
fraud,
3. Cheyenne provided substantial assistance to the primary
actor in accomplishing the result,
4. the conduct of Cheyenne, separate from the primary actor's
conduct, was a breach of duty to Petryliene, and
5. The participation of Cheyenne was a substantial factor in
causing the fraud.
Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for aiding and
abetting fraud made by Petryliene.
b. As to Big River
Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary
judgment on the claim for aiding and abetting fraud made by Big River because there is no
evidence of each of the following elements of that claim:
1. that any party, as a primary actor, is liable to Big River for
fraud;
2. Cheyenne knew the primary actor's conduct constituted
fraud,
3. Cheyenne provided substantial assistance to the primary
actor in accomplishing the result,
4. the conduct of Cheyenne, separate from the primary actor's
conduct, was a breach of duty to Big River, and
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 10 0F 1 1
5. The participation of Cheyenne was a substantial factor in
causing the fraud.
Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for aiding and
abetting fraud made by Big River.
VI. PRAYER
For the foregoing reasons, each of the Movant Cheyenne is entitled to judgment as a matter
of law and the Plaintiffs’ claims against them should be dismissed.
Defendant Cheyenne further asks that the Court for such other and further relief to which
it may show itself entitled and will forever pray.
Respectfully submitted,
LAW OFFICE OF H. GRADY CHANDLER, P.C.
/s/ H. Grady Chandler
H. GRADY CHANDLER
State Bar No. 04095000
12222 Merit Drive, Suite 1200
Dallas, Texas 75251
972-271-4561
972-278—3588 (FAX)
E-mail: grad1@hgchandlerlaw.com
Attorneys for Defendant Cheyenne Asset
Management, Inc.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served on counsel of
record according to the Texas Rules of Civil Procedure on January 13, 2022.
/s/ H. Grady Chandler
H. Grady Chandler
NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET
MANAGEMENT, INC. PAGE 11 0F 11
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Envelope ID: 60782936
Status as of 1/13/2022 10:29 AM CST
Associated Case Party: RENATA PETRYLIENE
Name BarNumber Email TimestampSubmitted Status
Ralph Ritch Roberts 24041794 roberts@rrobertslaw.com 1/13/2022 10:08:15 AM SENT
Bradley Ryynanen 24082520 brad@bdrlegal.com 1/13/2022 10:08:15 AM SENT
Associated Case Party: ICC SURFWOOD CORP
Name BarNumber Email TimestampSubmitted Status
Jeffrey MTilIotson jtillotson@tillotsonlaw.com 1/13/2022 10:08:15 AM SENT
Jonathan RPatton jpatton@tillotson|aw.com 1/13/2022 10:08:15 AM SENT
Associated Case Party: CHEYENNE ASSET MANAGEMENT INC
Name BarNumber Email TimestampSubmitted Status
H. Grady Chandler grady@hgchandlerlaw.com 1/13/2022 10:08:15 AM SENT
Associated Case Party: KENNETHKFOGG
Name BarNumber Email TimestampSubmitted Status
Daniel D.Tostrud dtostrud@cobbmartinez.com 1/13/2022 10:08:15 AM SENT
Virginia E.Cox vcox@cobbmartinez.com 1/13/2022 10:08:15 AM SENT
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Case Contacts
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The filer served this document via email generated by the efiling system
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certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Envelope ID: 60782936
Status as of 1/13/2022 10:29 AM CST
Case Contacts
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Preview
FILED 1/13/2022 10:08 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY No. DC-20-12534 RENATA PETRYLIENE AND BIG § IN THE DISTRICT COURT RIVER NV, §§§§§§§§§§§§§§§§§§§§§§§§§§§ Plaintiffs/Counter—Defendants, v. BRADFORD PHILLIPS, INDIVIDUALLY ICC SURRWOOD CORP., CHEYENNE ASSET MANAGEMENT, INC. DONALD W. PHILLIPS, MICKEY NED PHILLIPS, NICKEY TED PHILLIPS 19lst JUDICIAL DISTRICT LONGFELLOW INVESTORS I, LLC, LONGFELLOW INVESTORS II, LLC, LONGFELLOW INVESTORS III, LLC, LONGFELLOW INVESTORS IV, LLC, LONGFELLOW INVESTORS V, LLC, LOUIS J. CORNA, KENNETH K. FOGG, AND BENNETT, WESTON, LAJONE & TURNER, P.C., Defendants/Counter—Plaintiffs V. DALLAS HRS DEVELOPMENT, INC. AND JRG INVESTMENT CO. INC. Intervenors DALLAS COUNTY, TEXAS NO EVIDENCE MOTION FOR SUMNIARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. Defendant Cheyenne Asset Management, Inc. (“Cheyenne”) files this no-evidence motion for summary judgment pursuant to Tex. R. CiV. P. 166a(i) and requests that the Court enter judgment against Plaintiffs Renata Petryliene (“Petryliene”) and Big River NV (“Big River”) (collectively “P1aintiffs”) on all of Plaintiffs’ causes of action. NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 1 OF 11 I. NATURE 0F THE DISPUTE Plaintiffs have sued the children of Gene E. Phillips (deceased), Cheyenne and several other persons/entities affiliated with Gene E. Phillips. Cheyenne is an administrative entity which provided bookkeeping and recordkeeping services for several entities affiliated with Gene E. Phillips. Based upon whatever relationship Petryliene had with Gene E. Phillips prior to his death, Petryliene signed Promissory Notes and received over $4 million in loans from various entities at the direction of Gene E. Phillips, in addition to multiple outright gifts. Notwithstanding her good fortune during Gene E. Phillips’ lifetime, Petryliene and Big River, NV, LLC, an entity Petryliene claims to own, now assert various causes of action seeking millions more in this lawsuit. Plaintiffs are pursuing identical causes of action against Gene E. Phillips’ estate in Cause No. PR-21-01070- 1; In the Estate of Gene Phillips, Deceased, pending in Dallas County Probate Court No. 1. This No Evidence Motion for Summary Judgment is filed because there is no evidence that supports Plaintiffs’ claims against any of the Defendants, herein including Cheyenne. II. SUMMARY 0F ARGUMENT Despite the Orders of this Court at the November 9, 2021 hearing on Defendants’ Motions to Compel, Plaintiffs have not produced a single document or any information which supports any material fact alleged in Plaintiffs’ pleadings. Likewise, Plaintiffs have not meaningfully responded to Cheyenne’s Interrogatories or Requests for Admission. There has been more than adequate time for discovery. The simple truth is that either Plaintiffs have chosen to violate the Orders of this Court or there is no evidence to support Plaintiffs’ claims against any of the Defendants, including Cheyenne. NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 2 0F 1 1 III. PLAINTIFFS’ CLAIMS Petryliene and Big River sue Cheyenne for: 1. Aiding and abetting breach of fiduciary duty. See Plaintifl’s Original Petition at 1H] 44-46. 2. Conspiracy to breach fiduciary duty. See Plaintifl’s Original Petition at 1H] 47-49. 3. Conspiracy to commit fraud. See Plaintifl’s Original Petition at 1H] 5 0-55. 4. Aiding and abetting fraud. See Plaintiff’s Original Petition at 1m 5 0-55. IV. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT Pursuant to Rule l66a(i), Tex. R. CiV. P., Cheyenne moves for a summary judgment because there is no issue raising a genuine issue of material fact on one or more of the essential elements of each claim alleged by Plaintiffs; 1. AIDING AND ABETTING BREACH 0F FIDUCIARY DUTY CLAIMS The elements of a claim for aiding and abetting a breach of fiduciary duty are: (1) the primary actor’s activity constituted a breach of fiduciary duty to the Plaintiff, (2) the Defendant knows the primary actor's conduct constituted a breach of fiduciary duty, (3) the Defendant provided substantial assistance to the primary actor in accomplishing the result, (4) the Defendant's own conduct, separate from the primary actor's conduct, was a breach of duty to the Plaintiff, and (5) the Defendant's participation was a substantial factor in causing the breach of fiduciary duty. See Nettles v. GTECH Corp., 603 S.W.3d 63, 75 (Tex. 2020) (aiding and abetting and conspiracy are theories of derivative or Vicarious liability which depend upon liability for an underlying tort and they survive or fail alongside that tort); Graffv. 2920 Park Grove Venture, Ltd., No. 05-16- 01411-CV, 2018 Tex. App. LEXIS 4266, at *17 (Tex. App—Dallas June 13, 2018, pet. denied). The elements of a claim for breach of fiduciary duty are: (i) a fiduciary relationship existed between the plaintiff and defendant; (ii) the defendant breached its fiduciary duty to the plaintiff; NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 3 0F 11 and (iii) the defendant‘s breach injured the plaintiff or benefited the defendant. Anderton v. Cawley, 378 S.W.3d 38, 51 (Tex. App—Dallas 2012, no pet). a. As to Petryliene Cheyenne is entitled to judgment as a matter of law and moves for no-eVidence summary judgment on the claim for aiding and abetting a breach of fiduciary duty made by Petryliene because there is no evidence of each of the following elements of that claim: 1. that any of the Defendants’ activities, as a primary actor, constituted a breach of fiduciary duty to Petryliene; 2. that Cheyenne knew that the primary actor's conduct constituted a breach of fiduciary duty; 3. that Cheyenne provided substantial assistance to the primary actor in accomplishing the result; 4. that the conduct of Cheyenne, separate from the primary actor's conduct, was a breach of duty to Petryliene; and 5. The participation of Cheyenne was a substantial factor in causing the breach of fiduciary duty. Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for aiding and abetting breach of fiduciary duty made by Petryliene. b. As to Big River Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary judgment on the claim for aiding and abetting a breach of fiduciary duty made by Big River because there is no evidence of each of the following elements of that claim: 1. that any of the Defendants’ activities, as a primary actor, constituted a breach of fiduciary duty to Big River; 2. that Cheyenne knew that the primary actor's conduct constituted a breach of fiduciary duty; 3. that Cheyenne provided substantial assistance to the primary actor in accomplishing the result; NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 4 0F 1 1 4. that the conduct of Cheyenne, separate from the primary actor's conduct, was a breach of duty to Big River; and 5. that the participation of Cheyenne was a substantial factor in causing the breach of fiduciary duty. Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for aiding and abetting breach of fiduciary duty made by Big River. 2. CONSPIRACY To BREACH FIDUCIARY DUTY CLAIMS The elements of a claim for conspiracy to breach fiduciary duty are: 1) liability for a breach of fiduciary duty as to the Plaintiff; 2) that the Defendant was a member of a combination of two or more persons; 3) that the object of the combination was to accomplish a breach of fiduciary duty; 4) that the members had a meeting of the minds on the object or course of action; 5) that one of the members committed an unlawful, overt act to further the object or course of action; and 6) that damages were suffered by Plaintiff as a proximate result of the wrongful act. See Nettles v. GTECH Corp, 603 S.W.3d 63, 75 (Tex. 2020) (aiding and abetting and conspiracy are theories of derivative or Vicarious liability which depend upon liability for an underlying tort and they survive or fail alongside that tort); Cohen v. NewBz'ss Prop, L.P, No. 01-19-00397-CV, 2020 Tex. App. LEXIS 9190, at *18 (Tex. App—Houston [1st Dist.] Nov. 24, 2020, pet. filed). Moreover, an actionable civil conspiracy exists only as to those parties who are aware of the intended harm or proposed wrongful conduct at the outset of the combination or agreement. Id. a. As to Petryliene Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary judgment on the claim for conspiracy to breach fiduciary duty made by Petryliene because there is no evidence of each of the following elements of that claim: NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 5 0F 11 1. that any of the defendants’ activities, as a primary actor, constituted a breach of fiduciary duty to Petryliene; 2. that Cheyenne was a member of a combination of two or more persons; 3. that the object of the combination was to accomplish a breach of fiduciary duty; 4. that Cheyenne and the primary actor had a meeting of the minds on the breach of fiduciary duty or course of action; 5. that one of the defendants committed an unlawful, overt act to further the breach of fiduciary duty or course of action; 6. that damages were suffered by Petryliene as a proximate result of the wrongful act; and that 7. that Cheyenne was aware of the intended harm or proposed wrongful conduct at the outset of the combination or agreement. Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for conspiracy to commit breach of fiduciary duty made by Petryliene. b. As to Big River Cheyenne is entitled to judgment as a matter of law and moves for no-eVidence summary judgment on the claim for conspiracy to breach fiduciary duty made by Big River because there is no evidence of each of the following elements of that claim: l. that any of the defendants’ activities, as a primary actor, constituted a breach of fiduciary duty to Big River; 2. that Cheyenne was a member of a combination of two or more persons; 3. that the object of the combination was to accomplish a breach of fiduciary duty; 4. that Cheyenne and the primary actor had a meeting of the minds on the breach of fiduciary duty or course of action; NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 6 0F 1 1 5. that one of the defendants committed an unlawful, oveIt act to further the breach of fiduciary duty or course of action; 6. that damages were suffered by Big River as a proximate result of the wrongful act; and that 7. that Cheyenne was aware of the intended harm or proposed wrongful conduct at the outset of the combination or agreement. Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for conspiracy to commit breach of fiduciary duty made by Big River. 3. CONSPIRACY To COMMIT FRAUD CLAIMS The elements of a claim for conspiracy to commit fraud are: 1) a party is liable to plaintiff for fraud; 2) that the defendant was a member of a combination of two or more persons; 3) that the object of the combination was to accomplish fraud; 4) that the members had a meeting of the minds on the object or course of action; 5) that one of the members committed an unlawful, overt act to further the object or course of action; and 6) that damages were suffered by plaintiff as a proximate result of the wrongful act. See Nettles v. GTECH Corp., 603 S.W.3d 63, 75 (Tex. 2020) (aiding and abetting and conspiracy are theories of derivative or Vicarious liability which depend upon liability for an underlying tort and they survive or fail alongside that tort); Cohen v. NewBz'ss Prop, L.P, No. 01-19-00397-CV, 2020 Tex. App. LEXIS 9190, at *18 (Tex. App—Houston [lst Dist.] Nov. 24, 2020, pet. filed). Moreover, an actionable civil conspiracy exists only as to those parties who are aware of the intended harm or proposed wrongful conduct at the outset of the combination or agreement. Id. The elements of a claim for fraud are: (1) that a party made material representation to plaintiff; (2) the representation was false; (3) when the representation was made, the party knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 7 0F 11 the party made the representation with the intent that the other party should act upon it; (5) the plaintiff acted in reliance on the representation; and (6) the plaintiff thereby suffered injury. Italian Cowboy Partners, Ltd. v. Prudential Ins. C0. ofAm, 341 S.W.3d 323, 337 (Tex. 2011). a. As to Petryliene Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary judgment on the claim for conspiracy to commit fraud made by Petryliene because there is no evidence of each of the following elements of that claim: l. that any party, as a primary actor, is liable to Petryliene for fraud; 2. that Cheyenne was a member of a combination of two or more persons; 3. that the object of the combination was to accomplish fraud; 4. that the members had a meeting of the minds on the object or course of action; 5. that one of the members committed an unlawful, overt act to further the object or course of action; 6. that damages were suffered by Petryliene as a proximate result of the wrongful act; and 7. that Cheyenne was aware of the intended harm or proposed wrongful conduct at the outset of the combination or agreement. Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for conspiracy to commit fraud made by Petryliene. b. As to Big River Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary judgment on the claim for conspiracy to commit fraud made by Big River because there is no evidence of each of the following elements of that claim: l. that any party, as a primary actor, is liable to Big River for fraud; NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 8 0F 11 2. that Cheyenne was a member of a combination of two or more persons; 3. that the object of the combination was to accomplish fraud; 4. that the members had a meeting of the minds on the objector course of action; 5. that one of the members committed an unlawful, overt act to further the object or course of action; 6. that damages were suffered by Big River as a proximate result of the wrongful act; and 7. that Cheyenne was aware of the intended harm or proposed wrongful conduct at the outset of the combination or agreement. Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for conspiracy to to commit fraud made by Big River. 4. AIDING AND ABETTING FRAUD CLAIMS The elements of a claim for aiding and abetting fraud are: (1) liability of a primary actor for fraud as to the plaintiff; (2) the defendant knows the primary actor's conduct constituted fraud, (3) the defendant provided substantial assistance to the primary actor in accomplishing the result, (4) the defendants’ own conduct, separate from the primary actor‘s conduct, was a breach of duty to the Plaintiff, and (5) the defendant's participation was a substantial factor in causing the fraud. See Nettles v. GTECH Corp., 603 S.W.3d 63, 75 (Tex. 2020) (aiding and abetting and conspiracy are theories of derivative or vicarious liability which depend upon liability for an underlying tort and they survive or fail alongside that tort); Cohen v. NewBiss Prop, L.P, No. 01-19-00397-CV, 2020 Tex. App. LEXIS 9190, at *18 (Tex. App—Houston [1st Dist.] Nov. 24, 2020, pet. filed). Moreover, an actionable civil conspiracy exists only as to those parties who are aware of the intended harm or proposed wrongfiil conduct at the outset of the combination or agreement. Id. NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 9 0F 1 1 a. As to Petryliene Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary judgment on the claim for aiding and abetting fraud made by Petryliene because there is no evidence of each of the following elements of that claim: l. that any party, as a primary actor, is liable to Petryliene for fraud; 2. Cheyenne knew the primary actor's conduct constituted fraud, 3. Cheyenne provided substantial assistance to the primary actor in accomplishing the result, 4. the conduct of Cheyenne, separate from the primary actor's conduct, was a breach of duty to Petryliene, and 5. The participation of Cheyenne was a substantial factor in causing the fraud. Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for aiding and abetting fraud made by Petryliene. b. As to Big River Cheyenne is entitled to judgment as a matter of law and moves for no-evidence summary judgment on the claim for aiding and abetting fraud made by Big River because there is no evidence of each of the following elements of that claim: 1. that any party, as a primary actor, is liable to Big River for fraud; 2. Cheyenne knew the primary actor's conduct constituted fraud, 3. Cheyenne provided substantial assistance to the primary actor in accomplishing the result, 4. the conduct of Cheyenne, separate from the primary actor's conduct, was a breach of duty to Big River, and NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 10 0F 1 1 5. The participation of Cheyenne was a substantial factor in causing the fraud. Accordingly, Cheyenne is entitled to judgment as a matter of law on the claim for aiding and abetting fraud made by Big River. VI. PRAYER For the foregoing reasons, each of the Movant Cheyenne is entitled to judgment as a matter of law and the Plaintiffs’ claims against them should be dismissed. Defendant Cheyenne further asks that the Court for such other and further relief to which it may show itself entitled and will forever pray. Respectfully submitted, LAW OFFICE OF H. GRADY CHANDLER, P.C. /s/ H. Grady Chandler H. GRADY CHANDLER State Bar No. 04095000 12222 Merit Drive, Suite 1200 Dallas, Texas 75251 972-271-4561 972-278—3588 (FAX) E-mail: grad1@hgchandlerlaw.com Attorneys for Defendant Cheyenne Asset Management, Inc. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was served on counsel of record according to the Texas Rules of Civil Procedure on January 13, 2022. /s/ H. Grady Chandler H. Grady Chandler NO EVIDENCE MOTION FOR SUMMARY JUDGMENT ON DEFENDANT CHEYENNE ASSET MANAGEMENT, INC. PAGE 11 0F 11 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Envelope ID: 60782936 Status as of 1/13/2022 10:29 AM CST Associated Case Party: RENATA PETRYLIENE Name BarNumber Email TimestampSubmitted Status Ralph Ritch Roberts 24041794 roberts@rrobertslaw.com 1/13/2022 10:08:15 AM SENT Bradley Ryynanen 24082520 brad@bdrlegal.com 1/13/2022 10:08:15 AM SENT Associated Case Party: ICC SURFWOOD CORP Name BarNumber Email TimestampSubmitted Status Jeffrey MTilIotson jtillotson@tillotsonlaw.com 1/13/2022 10:08:15 AM SENT Jonathan RPatton jpatton@tillotson|aw.com 1/13/2022 10:08:15 AM SENT Associated Case Party: CHEYENNE ASSET MANAGEMENT INC Name BarNumber Email TimestampSubmitted Status H. Grady Chandler grady@hgchandlerlaw.com 1/13/2022 10:08:15 AM SENT Associated Case Party: KENNETHKFOGG Name BarNumber Email TimestampSubmitted Status Daniel D.Tostrud dtostrud@cobbmartinez.com 1/13/2022 10:08:15 AM SENT Virginia E.Cox vcox@cobbmartinez.com 1/13/2022 10:08:15 AM SENT Karyn Elder kelder@cobbmartinez.com 1/13/2022 10:08:15 AM SENT Sandi Mallon smallon@cobbmartinez.com 1/13/2022 10:08:15 AM SENT Case Contacts Name Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Envelope ID: 60782936 Status as of 1/13/2022 10:29 AM CST Case Contacts Mitchell Madden mmadden@hjmmlegal.com 1/13/2022 10:08:15 AM SENT Shawnte Kinney skinney@hjmmlegal.com 1/13/2022 10:08:15 AM SENT Tania Flores tflores@hjmmlegal.com 1/13/2022 10:08:15 AM SENT Dennis Holmgren Dennis@hjmmlegal.com 1/13/2022 10:08:15 AM SENT Melissa Johnson Melissa@hjmmlegal.com 1/13/2022 10:08:15 AM SENT Jordan L. Vimont jvimont@rctlegal.com 1/13/2022 10:08:15 AM SENT Joseph Alrrobali airrobali@tillotsonlaw.com 1/13/2022 10:08:15 AM SENT Susie Wade swade@tillotsonlaw.com 1/13/2022 10:08:15 AM SENT Veronica Zavala veronica@hgchandlerlaw.com 1/13/2022 10:08:15 AM SENT Rachel A.Buchhorn rbuchhorn@reidcollins.com 1/13/2022 10:08:15 AM SENT Lisa tsai ltsai@reidcollins.com 1/13/2022 10:08:15 AM SENT Misty Gasiorowski mgasiorowski@wkpz.com 1/13/2022 10:08:15 AM SENT Ashli Durke adurke@rctlegal.com 1/13/2022 10:08:15 AM SENT Kira Lytle klytle@tillotsonlaw.com 1/13/2022 10:08:15 AM SENT Enrique Ramirez eramirez@tillotsonlaw.com 1/13/2022 10:08:15 AM SENT Benjamin LNabors bnabors@tillotsonlaw.com 1/13/2022 10:08:15 AM SENT