Preview
Filed: 8/16/2023 1:55 PM
Michael Gould
District Clerk
Collin County, Texas
By J aclyn Grayson Deputy
Envelope ID: 78597093
No. 471-03452-2021
VERTICAL INTERGRATION IN THE DISTRICT COURT
CONSULTING, LLC, AND RANDALL
STANLEY,
Plaintiffs,
Vv.
JASON LEDBETTER, NICOLE 4715' JUDICIAL DISTRICT
LEDBETTER, MY MED SPA, LLC,
TRY WELLNESS GROUP, LLC, W.P.
OFFICES, LP, AND RICHARD
REHMAN, JOHN BLANCHARD, AND
MEDICAL DEVICE ALLIANCE,
Defendants.§ COLLIN COUNTY, TEXAS
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S TRADITIONAL AND
NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT.
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Defendants Richard Rehman (“Rehman”), and WP Office LP (“WP
Office”) named Defendants in the above-entitled and numbered cause, and file this their
Traditional and No-Evidence Motion for Summary Judgment against VERTICAL
INTEGRATION CONSULTING LLC (“Vertical”), RANDALL STANLEY (“Stanley”)
(Collectively “Plaintiffs”), Nicole Ledbetter (“Ledbetter”) and My Med Spa LLC (“My Med Spa”)
(Collectively (“Med Spa Defendants”), and respectfully shows the Court:
I, SUMMARY JUDGMENT EVIDENCE
Exhibit Description
Affidavit of Richard Rehman.
Office Lease Agreement (Bates 1-37)
May 13, 2020 emails between Rehman and Ledbetter (Bates 87-88)
May 20, 2020 Demand Letter (Bates 44-46)
June 5, 2020 Email from Rehman to Stanley (Bates 61-62)
June 22, 2020 Email from Stanley to Rehman (Bates 52)
June 23, 2020 Email from Rehman to Stanley (Bates 51)
July 2, 2020 Emails between Rehman and Stanley (Bates 70)
Lease Guarantee Termination Agreement (Bates 69)
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 1
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
J August 3, 2020 Emails between Ledbetter, Stanley, and Rehman (Bates 71)
May 4, 2021 Demand Letter (Bates 79-86)
II, UNDISPUTED FACTS
This case is a business dispute between Plaintiffs Vertical Integration Consulting, LLC and
Randall Stanley on one side (collectively, “Plaintiffs”), and Nicole Ledbetter, My Med Spa, LLC,
and Try Wellness Group, LLC on the other side (collectively, “Med Spa Defendants”). Plaintiffs
and the Med Spa Defendants entered into negotiations regarding equipment needed to operate a
med spa business in Collin County. Plaintiff s Original Petition (“POP”), 118. However, Plaintiffs
and the Med Spa Defendants dispute who owned and/or had the right to possess the equipment at
various times and other aspects of the business relationship between them, which is the basis of
this lawsuit.
WP Office was the landlord for the real estate used as the business location for the med spa
business. On or about February 22, 2019, WP Office as Landlord, and My Med Spa, LLC as
Tenant, entered into an Office Lease Agreement (“Lease”), a true and correct copy of which wes
attached to POP and is attached hereto as Exhibit B. Rehman executed the Lease on behalf of
Landlord
WP Offices, LP, denoting “Its: Manager’ under his signature. Exhibit B, p. 18. Plaintiff
Stanley executed
the Lease on behalf of Tenant My Med Spa, LLC, denoting “Its: CEO” under his
signature. Id. Plaintiff Stanley and Defendant Nicole Ledbetter also each personally guaranteed
the Lease. ExhibitB, p. 34-37. The Lease provided:
EVENTS OF DEFAULT. The following events shall be deemed to be events of
default by Tenant under this lease:
® Tenant shall desert or vacate any portion of the premises or shall fail
to take
occupancy of the premises on the Commencement Date. Tenant will be presumed
to have abandoned the premises if goods, equipment, or other property, in an
amount substantial enough to indicate a probable intent to abandon
the premises, is
being or has been removed from the premises and the removal is not within the
nonmal course of Tenant’s business.
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 2
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
Exhibit B, 119(f) (emphasis added).
LANDLORD’S LIEN. In addition to the statutory landlord's lien, Landlord shall
have, at all times, and Tenant hereby grants to Landlord, a valid security
interest to secure payment of all rentals and other sums of money becoming due
hereunder from Tenant, and to secure payment of any damages of loss which
Landlord may suffer by reason of the breach by Tenant of any covenant, agreement
or condition herein, upon all goods, wares, equipment, fixtures, furniture, and
improvements and other personal property of Tenant presently or which may
hereafter be situated on the premises, and all proceeds therefrom, and such
property shall not be removed therefrom without the consent of Landlord...
Exhibit B, (23 (emphasis added).
After leasing the premises for the med spa business, Plaintiffs and/or the Med Spa
Defendants moved equipment into the leased premises and began using it. POP, 119. Shortly
thereafter, in light of the business dispute between Plaintiffs and the Med Spa Defendants, Plaintiff
Stanley removed some of the equipment in dispute from the leased premises and attempted to
remove even more equipment. Exhibits C, J. Plaintiffs have admitted such removal in their live
Pleading. POP, {20 (“Plaintiffs have repeatedly demanded a retum of the Equipment”), 21
(“Plaintiffs
were ableto secure some of the above Equipment from Defendants”), {22 (“equipment
being taken back by Plaintiffs...after Plaintiffs removed it’), (27 (“After attempting to retrieve
more of The Equipment from The Premises...”). WP Office became aware of Stanley’s removal
of such equipment when Ledbetter emailed Rehman on May 13, 2020
and stated “I found
out who
took stuff[.] It was randy [Stanley]...He keeps coming and taking Daily”. Exhibit C. Rehman
responded “So Randy Stanley is removing the equipment?...he
is the CEO of My Med Spa...
Have
you talked to him about this?” Exhibit C. Ledbetter responded, asserting Stanley was not the CEO
of My Med Spa and the company was Ledbetter’s alone. ExhibitC.
Rehman, in his capacity
as Manager for WP Office, conducted
a search with the Texas
Secretary of State and reviewed the Certificate of Formation, which revealed that Plaintiffs were
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE-3
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
not listed as managers. ExhibitA. The two managers listed were Defendant
Try Wellness Group,
LLC and NIX Medical Management, LLC, and aTexas Secretary of State search of those entities
revealed no association of Plaintiffs with either entity. Exhibit A.
Concemed that Plaintiffs and the Med Spa Defendants were removing equipment with
intent to abandon the premises in violation of the Lease, WP Office, through its counsel, sent
Plaintiffs and the Med Spa Defendants a demand letter on or about May 20, 2020, a true and correct
copy of whichis attached hereto as Exhibit D. The demand letter recited the above-quoted portions
of the Lease and demanded the parties cease further removal of equipment from the property
without giving WP Office notice and a list of the equipment being removed. ExhibitD.
OnJune 5, 2020, after becoming aware of further attempts to remove equipment from the
leased premises, WP Office sent an email directedto Plaintiff Stanley informing
him that trespass
charges would be filed and/or further legal action taken if he attempted to enter the property. A
true and correct copy of that email was attached to POP and is attached hereto as Exhibit E. The
email was signed
by “Richard Rehman as Manager
for WP Offices”. Exhibit E.
Inresponse, Stanley did not demand entry onto the property, assert any claim or right over
the property sought to be removed, or provide WP Office with notice and a list of equipment he
intendedto remove. To the contrary, on June 22, 2020, Stanley responded to Rehman’ s email on
behalf
of WP Office indicating “I agree to be removed from the lease...” ExhibitsA, F.
Notably, the Tenant My Med Spaby and through Defendant Nicole Ledbetter, notifiedWP
Office that it did not consent to Plaintiff Stanley’s removal of the equipment
from the leased
premises. Exhibit A. My Med Spa LLC forwarded
WP Office an email dated August 3, 2020,
wherein Plaintiff Stanley indicates, “all of the equipment I purchased needs to be removed. I will
be scheduling a moving company this week.” ExhibitJ. In response, WP Office
sent an email
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE-4
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
directedto Plaintiff Stanley notifying
him that “If you or any movers attempt to enter the Building
or the premises of My Med Spa LLC. ..I will have
the Plano Police Dept. contacted
and you both
arrested
for tresspassing!” True and correct copies of the August 3, 2020 emails
were attached to
POP and are attached hereto as Exhibit J.
Inresponse, Plaintiffs filed suit on June 29, 2021 alleging multiple claims against Rehman.
and WP Office, all generally complaining that Rehman and/or
WP Office interfered with Plaintiffs
attempts to reclaim property listed on pp. 5-7 of Plaintiff’s Original Petition (the “Equipment”)
from the leased premises.
Il]. ARGUMENT AND AUTHORITIES
Rehman and WP Office incorporate the foregoing paragraphs. Rehman and WP Office
move for both traditional and no-evidence summary judgment on each cause of action and
affirmative defense set forth herein.
A Summary J udgment Standard - Traditional and No Evidence
In atraditional motion for summary judgment, the movant for summary judgment must
show there is no genuine issue as to a material fact and that the movant is entitled
to judgment as
a matter
of law. TEX. R. Civ. P. 166a(c); MD. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 23 (Tex.
2000). The burden shifts to the nonmovant after the movant has established that it is entitled to
summary judgment as a matter of law. See Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). The
nonmovant must then produce any summary judgment proof to raise a fact issue. Id. at 558.
Summary judgment is proper on the basis of uncontroverted testimonial evidence of an interested
witness if that evidence is clear, positive, and direct, otherwise credible, and free from
contradictions and inconsistencies, and could have been readily controverted. Id. (quoting TEx. R.
Cw. P. 166a(c)).
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 5
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
A movantis entitledto summary judgment as a matter of law when it proves all essential
elements of its claim or defense or disproves the facts of at least one element of the nonmovant’s
claim or defense. Swilleyv. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).
After adequate time for discovery, a party without presenting summary judgment evidence
may move for summary judgment on the ground that there is no evidenceof one or more essential
elements of a claim or defense on which an adverse party would have the burden of proof at trial.
Tex. R. Civ. P. 166a(i). The court must grant the motion unless the respondent produces summary
judgment evidence raising
a genuine issue of material fact. Id.; Hamiltonv. Wilson, 249 S.W.3d
425, 426 (Tex. 2008).
In determining if a party had adequate time for discovery, the court should consider
the
following factors: (1) the nature
of the case, (2) the nature of the evidence necessary to controvert
the no-evidence motion, (3) the length of time the case was active, (4) the amount of time the no-
evidence
motion was on file, (5) whether the movant had requested stricter deadlines for discovery,
(6) the amount of discovery that already had taken place, and (7) whether the discovery deadlines
in place were specific orvague. Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 467 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied). Further, when additional discovery sought by a
party is immaterial to the issues presented by the motion for summary judgment, the court
can
address the motion for summary judgment without delay despite a party’s request for additional
discovery. See Patrickv. Howard, 904 S.W.2d 941, 946 (Tex. App. — Austin 1995, no writ)
(affirming summary judgment because requested discovery was immaterial to issues presented by
motion); see also Clawson v. Wharton County, 941 S.W.2d 267, 274 (Tex. App. — Corpus Christi
1996, writ denied).
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 6
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
A no-evidence point will be sustained when “(a) there is a complete absence of evidence
of avital fact, (b) the court is barred by mules oflaw
or of evidence from giving weight to the only
evidence offered
to prove a vital fact, (c) the evidence offeredto prove
a vital fact is no more than
a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” King
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing Merrell Dow Pharns., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997).
B. Conversion (Trover)
To establish a claim for conversion, a plaintiff must prove that: (1) the plaintiff owned or
had possession of the property or entitlement to possession; (2) the defendant unlawfully and
without authorization assumed and exercised control over the property to the exclusion of, or
inconsistent with, the plaintiff's
rights as an owner, (3) the plaintiff demanded retum of the
property; and (4) the defendant refused to retum the property. Scott Pelley P.C. v. Wynne, No. 05-
15-01560-CV, 2017 WL 3699823 at *11 (Tex. App.—Dallas August 28, 2017, pet. denied)
(emphasis added) (citing Lawyers Title Co. v. J.G. Cooper Dev., Inc., 424 S.W.3d.713, 718 (Tex.
App.-Dallas 2014, pet. denied); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor
Concepts, Inc., 300 S.W.3d 348, 365 (Tex. App.-Dallas 2009, pet. denied)). The plaintiff also
must establish
it was injured
by the conversion. Id. (citing United Mobile Networks L.P. v. Deaton,
939 S.W.2d 146, 147 (Tex. 1997) (per curiam); Lawyers Title Co., 424 S.W.3dat 718).
1 Traditional
Plaintiffs cannot prevail on their conversion claim, because WP Office had authorization
to exercise control over the Equipment, and a superior right to possess such Equipment, as a matter
of law. “[T]Jhere can be no conversion where one takes only what he was entitled to receive.”
Enduro Oil Co. v. Parish & Ellison, 834 S.W.2d 547, 549 (Tex. App.— Houston [14" Dist] 1992,
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE-7
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
writ denied). “Thus, if a defendant proves that he has a superior title or is entitled
to the property
pursuant to an agreement, an action for conversion cannot be maintained.” Id.
The Landlord's Lien provision in the Lease requires the Equipment allegedly converted to
remain on the leased premises, rendering Plaintiffs unable to prove their entitlementto possession
of the Equipment
as a matter of law. Paragraph 23 of the Lease grants WP Office a security interest
in “all goods, wares, equipment, fixtures, funiture, and improvements and other personal property
of Tenant presently or which
may hereafter
be situtated on the premises”, and requires
that “such
property shall not be removed therefrom without the consent of Landlord...” WP Office never
gave consent for Plaintiffs to remove the Equipment from the leased premises; to the contrary, WP
Office repeatedly demanded that Plaintiffs cease and desist removing such Equipment. Exhibits
D, E, GJ, K. Plaintiffs cannot prove the first element of conversion as a matterof law, because
WP Office had a superior right to possess the Equipment under the Lease.
Further, it is undisputed that Plaintiffs removed other property from the leased premises,
outside
the normal course of business and with probable intentto abandon
the premises. Plaintiffs’
own pleadings indicate the removal of property from the premises. POP, 9720, 21, (22, 27.
Stanley’s email to Ledbetter further indicates Stanley’ s intent to immenently
remove “all of the
equipment [Stanley] purchased...this week’. ExhibitJ. Plaintiffs’ removal or imminent removal
of goods, equipment and property in such a substantial amount - all equipment purchased by
Stanley- invokes a presumption of abandonment of the premises under the Lease, which
is an act
of default
by the tenant. Exhibit
B p. 8-9 {119(f). The occurrence of the event of default by the
tenant entitled
WP Office, through Rehman, to “take possession of any and all goods, wares,
equipment, fixtures, fumiture, improvements and other personal property of Tenant situated on the
presmises, without liability for trespass or conversion...” Exhibit B, p. 11 {23 (emphasis added).
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 8
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
Thus, WP Office had a superior right to possession and control of the Equipment Plaintiffs claim.
‘was converted, and Plaintiffs cannot establish the first or second element of their conversion claim.
Additionally, Plaintiffs cannot prevail on the third and fourth elements of their conversion
claim, because Plaintiffs did not demand
from WP Office access to the Equipment that WP Office
and/or Rehman refused. To the contrary, on June 22, 2020, Plaintiff Stanley sent an email to
Rehman as representative
for WP Office indicating, “I agree to be removed from the lease...”
Exhibit F. Plaintiffs cannot establish any element of their conversion claimas a matter of law.
2 No Evidence
Plaintiffs have presented no evidence they owned or possessed the Equipment or were
entitled to possess such Equipment to the exclusion of any of the other defendants in this case. The
Equipment
was located on premises owned by WP Office and leased by My Med Spa, LLC, not
Plaintiffs. Plaintiffs have failed to offer even a scintilla of evidence establishing their ownership
or other rights to the Equipment, as necessary to prevail on their conversion claim.
To the extent Rehman, acting on behalf of WP Office, exercised control over the
Equipment, there is no evidence such control was unlawful. To the contrary,
WP Office was
entitled to require the Equipment to remain on the leased premises and/or to take possession of the
Equipment
under the terms of the Lease.
Plaintiffs have not presented even a scintilla of evidence that they demanded access to the
Equipment from Rehman and/or
WP Office. To the contrary, the only communication
by Plaintiffs
to WP Office was agreeing and asking to be removed from the Lease, not to gain access to the
Equipment. Exhibits F, H.
Because Plaintiffs have not presented even a scintilla of evidence on each element of their
conversion claim, Rehman
and WP Office
are entitled to summary judgment as a matter
of law.
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE-9
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
Cc Texas Theft Liability Act
Pursuant to the Texas Theft Liability Act, a person who commits
theft is liable for the
damages resulting
from the theft. Scott Pelley P.C. v. Wynne, 2017 WL 3699823 at *12 (citing
Tex. Civ. PRAC. & REM. CODE ANN. § 134.003(a) (West 2011); Tex. Integrated, 300 S.W.3dat
366). Theft is defined as “unlawfully appropriating property or unlawfully obtaining services as
described by [s]ection[s] 31.03, 31.04, 31.06 [or 31.11-31.14 of the Texas] Penal Code.” Id.
(citing TEX. Civ. PRAC. & REM. CODE § 134.002(a); Tex. Integrated, 300 S.W.3d
at 366; TEX. PEN.
CODE § 31.03 (theft)). Section 31.03(a) of the Texas Penal Code provides that “[a] person commits
an offense if he unlawfully appropriates property with intent to deprive the owner of property.”
Appropriation of property is unlawful if itis without the owner's effective consent. Id. (citing TEx.
PEN. CODE § 31.03(b)(1); Tex. Integrated, 300 S.W.3d
at 366).
1 Traditional
Plaintiffs cannot prevail on their theft liability act claimas a matterof law, because Rehman.
and WP Office did not unlawfully appropriate the Equipment. WP Office insisted that Plaintiffs
leave the Equipment on the leased premises, which was required under the terms of the Lease. The
Lease gives WP Office a security interest in the Equipment and requires that “such property shall
not be removed therefrom without the consent of Landlord...” Exhibit B (23. Plaintiffs never
requested Landlord’ s consent to remove Equipment
from the leased premises and WP Office never
gave consent for Plaintiffs to remove Equipment from the leased premises, and repeatedly
demanded that Plaintiffs cease and desist removing such Equipment. ExhibitsD, E, G, J, K.
Rehman and WP Office were well within their lawful rights in demanding Plaintiffs keep the
Equipment
on the least premises, and that action cannot constitute theft as a matter of law.
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 10
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
WP Office also had the exclusive right to possess and control the Equipment under the
terms of the Lease, negating Plaintiffs’ claim. Plaintiffs defaulted under the lease by removing
property from the leased premises, outside the normal course of business and with probable intent
to abandon
the premises. Exhibit B {19(f); POP, 120, 21, "22, (27; Exhibits C, J. The occurrence
of the event of default by the tenant entitled WP Office, through Rehman, to “take possession of
any and all good, wares, equipment, fixtures, furniture, improvements
and other personal property
of Tenant situated on the presmises...”, including
the Equipment. ExhibitB, (23. WP Office
and
Rehman cannot have unlawfully appropriated
the Equipment
from Plaintiffs where
WP Office had
the exclusive right to possess and control such Equipment.
2 No Evidence
Plaintiffs have failed to offer any evidence they had an ownership interest or possessory
interest in the Equipment allegedly stolen, as required to prevail on their theft liability act claim.
See TEX. PEN. CODE § 31.03(a); Freemanv. State, 707 S.W.2d 597, 603 (Tex. Crim. App.— 1986).
My Med Spa LLC was the tenant on the Lease. Neither Plaintiff Stanley nor Plaintiff Vertical
Integration Consulting, LLC was a party to the Lease that would allow them any right to access
the leased property and remove Equipment And, not even the actual tenant could remove such
Equipment under the terms of the Lease, given the landlord's lien provisions. Exhibit B, (23.
There is no evidence
that any appropriation by Rehman or WP Office was unlawful. To
the contrary, the Lease
gave WP Office a superior right to possess the Equipment and require that
it remain on the leased premisesto secure
the landlord's security interest.
Because Plaintiffs have not presented even a scintilla of evidence on each element of their
Texas Theft Liability
claim, Rehman and WP Office are entitled to summary judgment as a matter
of law.
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 11
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
D Common Law Fraud
Plaintiffs have limited common law fraud claims to the Med Spa defendants and have not
asserted common law fraud claims against Rehman or WP Office. Therefore, summary judgment
on this claim is not necessary.
E Tortious Interference with Prospective Business Relationships
To establish a cause of action for tortious interference with prospective contract or business
relationships, a plaintiff must show that (1) there was a reasonable probability that the parties
would have entered into a business relationship; (2) the defendant committed an independently
tortious or unlawful act that prevented the relationship from occuring; (3) the defendant either
acted with a conscious desireto prevent the relationship from occurring or knew the interference
‘was certain
or substantially certain to occuras a result of the conduct; and (4) the plaintiff suffered
actual harm or damages as a result of the defendant's interference. Vertex Services, LLC v.
Oceanwide Houston, Inc., 583 S.W.3d 841, 856 n.7 (Tex. App.—Houston [1 Dist.] 2019, no pet.)
(citing Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345,
361-62 (Tex. App.— Houston [1st Dist.] 2013, pet. denied); Richardson-Eagle, Inc. v. WilliamM.
Mercer, Inc., 213 S.W.3d 469, 475 (Tex. App.—Houston
[1st Dist.] 2006, pet. denied)).
1 Traditional
Rehman and WP Office incorporate the foregoing paragraphs. Plaintiffs cannot prevail on.
their tortious interference claim because Rehman and WP Office’s conduct was not tortious or
unlawful as a matter
of law. WP Office, through Rehman, was entitled to demand the Equipment
remain onthe leased premises to satisfy the landlord's lien provisions of the Lease, and/orto take
possession of the Equipment following Plaintiffs’ removal of the substantial amount of property
triggering
the default provisions. Exhibit B {1 19(f), 23; POP, §§20, 21, (22, (27; Exhibits C, J.
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 12
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
WP Office was entirely within its legal rights to demand Plaintiffs cease and desist removing
Equipment from the leased premises, and Plaintiffs cannot establish the second element of their
tortious interference claim as a matter of law. Hill v. Heritage Res., 964 S.W.2d 89, 123
(Tex.App.—El Paso 1997, pet. denied) (citing Victoria Bank & Trust v. Brady, 811 S.W.2d 931,
989 (Tex.1991)) (“Generally, the interfering party is justified in interfering if the actions are done
ina bona fide exercise of the party's own rights or if the party has
an equal or superior
right in the
subject matter”).
If the defendant did not have actual knowledge of the prospective contract or business
relations, its interference cannot be intentional and the plaintiff cannot prevail on its tortious
interference claim. Hill v. Heritage Res., 964 S.W.2d 89, 123 (Tex.App.—El Paso 1997, pet.
denied). Here, neither Rehman nor any other agent of WP Office had such knowledge. ExhibitA.
None of the communications between Rehman and Stanley during the relevant time period inform
Rehman of any such relationship. ExhibitsE, F, G, H, I, J. There was no intentional interference
with any known business relationship, and Rehman
and WP Office are entitled to summary
judgment on the claim.
2 No Evidence
Plaintiffs have not presented any evidence that there was a reasonable probability they
would have entered into other business relationships conceming the Equipment. Even if they had
such evidence, Plaintiffs have not presented a scintilla of evidence demonstrating Rehman and/or
WP Office had knowledge of such prospective business relationships that would render any action
by them intentionally damaging. To that end, Plaintiffs have not presented any evidence
demonstrating they were damaged by any conduct by Rehman and/or WP Office. There
is not even
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 13
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
ascintilla of evidence supporting each element of Plaintiffs’ tortious interference claim, andit fails
as a matter
of law.
F Civil Conspiracy
The Texas Supreme Court has defined the elements of civil conspiracy as: “(1) two ormore
persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action;
(4) one or more unlawful, overt acts; and (5) damages as the proximate result.” Vertex Services,
LLC, 583 S.W.3dat 857 (quoting Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136,
141 (Tex. 2019) (quoting Massey v. Armco Steel Co., 652 S.W.2d 982, 934 (Tex. 1983)). Civil
conspiracy is not an independent tort, but a derivative tort that depends on participationin some
underlying tort for which the plaintiff seeks to hold the defendant liable. Id.; Tilton v. Marshall,
925 S.W.2d 672, 681 (Tex. 1996). Therefore, civil conspiracy “survives or fails alongside” the
underlying tort alleged. Agar, 580 S.W.3d at 141.
1 Traditional
Plaintiffs’ civil conspiracy claims fail because there is no underlying tort committed by
WP Office
or Rehman, as a matter of law. WP Office, through Rehman, was entitled
to demand
the Equipment remain on the leased premises to satisfy the landlord's lien provisions of the Lease,
and/orto take possession of the Equipment following Plaintiffs’ removal of the substantial amount
of property triggering the default provisions. Exhibit B | 19(f), 23; POP, $920, 21, (22, 27;
Exhibits C, J. WP Office
was entirely
within its legal rightsto demand Plaintiffs
cease and desist
removing Equipment from the leased premises, and Plaintiffs cannot establish any underlying tort
supporting civil conspiracy as a matterof law.
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 14
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
2 No Evidence
There is no evidence of any unlawful, overt act by Rehman and/or WP Office supporting
Plaintiffs’ conspiracy claim. Further, there is no evidence of any meeting of the minds between
Rehman,
WP Office, and the Med Spa Defendants. The communication between those parties
indicates WP Office advised the Med Spa Defendants to discuss the issue with Stanley, and that
WP Office would seek the advice of legal counsel regarding
the issue. ExhibitC. Finally, thereis
no evidence
of any damage to Plaintiffs as a result of any action by Rehman
and/or WP Office.
G Trespass to C hattel
To interfere wrongfully with the use or possession of property is a trespass
to chattels.
Onmibus Intern., Inc. v. AT&T, Inc., 111 S.W.3d 818, 826 (Tex. App.—Dallas 2003, no pet).
(citing Jarvis v. SW. Bell Tel. Co., 432 S.W.2d 189, 191 (Tex. Civ. App.--Houston [14th Dist]
1968,
no writ)). For liability to attach, causing actual damage to the property or depriving the
owner of its use for a substantial period must accompany the wrongful interference. Id. (citing
Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981)).
1 Traditional
Any interference by Rehman and/or WP Office with Plaintiffs’ possession of the
Equipment
was not wrongful. WP Office, through Rehman, was entitled to demand the Equipment
remain onthe leased premises to satisfy the landlord's lien provisions of the Lease, and/orto take
possession of the Equipment following Plaintiffs’ removal of the substantial amount of property
triggering
the default provisions. Exhibit B {1 19(f), 23; POP, §§20, 21, (22, (27; Exhibits C, J.
Plaintiffs cannot establish their tresspass to chattel claim as a matter of law.
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 15
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
2 No Evidence
Plaintiffs have not met their burden to establish they own the Equipment, or that Rehman.
and/or
WP Office has deprived Plaintiffs of the use of such Equipment. Neither Rehman nor WP
Office has done anything to prevent the Equipment from being used on the leased premises, forits
intended purpose in the scope of the MedSpa business. The MedSpa Defendants have asserted that
they have a legal right to use the Equipment and are using it in the course of their business.
Plaintiffs have not presented any evidence of how they have been damaged by Rehman.
and/or
WP Office's failure to allow them to repossess the Equipment, when Plaintiffs have
presentedno evidence
of any other business opportunityto use or profit from the Equipment.
H Unjust Enrichment
Unjust enrichment
is an equitable theory of recovery where a party has obtained a benefit
from another
by fraud, duress or the taking of an undue advantage, and the receipt of those benefits
is not govemed
by contract. Masonv. Mason, No. 07-12-00007-CV, 2014 WL 199649 at*5 (Tex.
App.—Amanillo January 13, 2014, no pet.) (citing Heldenfels Bros., Inc. v. City of Corpus Christi,
832 S.W.2d 39, 41 (Tex. 1992); Lone Star Steel Co. v. Scott, 759 S.W.2d 144, 154 (Tex. App.--
Texarkana 1988, writ denied). Itis not a properremedy merely because “it might appear expedient
or generally fair that some recompense be afforded for an unfortunate loss....” Id; (quoting
Heldenfels Bros., Inc., 832 S.W.2d at 42). The claim is based upon an implied agreementto pay
for services rendered
or materials fumished
and knowingly accepted. Hill v. Shamoun & Norman,
LLP, 544 S.W.3d 724, 732 (Tex. 2018).
As a remedy based on quasi-contract principles, unjust enrichment is unavailable when a
valid, express contract goveming the subject matter of the dispute exists. Leev. Lee, 411 S.W.3d
at 112 (citing Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 683-84 (Tex. 2000); Christus
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 16
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
Health v. Quality Infusion Care, Inc., 359 S.W.3d 719, 723 (Tex. App.--Houston [1st Dist.] 2011,
no pet.)).
1 Traditional
Here, there was no implied agreement
for Rehman and/or
WP Office to pay Plaintiffs for
the use of the Equipment. To prove an action for quantum meruit, the plaintiff
must establish that
the services or materials were provided for the defendant. Truly v. Austin, 744 S.W.2d 934, 937
(Tex. 1998). If the defendant did not benefit or benefitted only incidentally from the plaintiff’s
actions, the defendantis not subjectto liability. Basharav. Baptist Ment] Hosp. Sys., 685 S.W.2d.
307, 310 (Tex. 1985). Plaintiffs do not allege that they provided
the Equipment to Rehman and/or
WP Office or for their benefit, or that they had any express or implied agreement for Rehman
and/or
WP Office to pay Plaintiffs for the Equipment. Rather, Plaintiffs’ allegation in this case is
that they provided
the Equipment
to the MedSpa Defendants for use in their business operations,
with the intent to lease the Equipment to the MedSpa Defendants and obtain payment from them.
Plaintiffs’ Original Petition {"119, 26. Those allegations do not support any compensable goods or
services provided for the benefit of Rehman and/or
WP office that could support an unjust
enrichment claim, and Defendants
contend there are none. ExhibitA.
2 No Evidence
There is no evidence of any services or materials provided to WP Office and/or Rehman
that could support an unjust enrichment claim. As a matter
of law, the Equipment
was provided to
the MedSpa Defendants underan alleged equipment lease, whichis the subject of Plaintiffs’ claims
against those parties.
Nor is there any evidence Plaintiffs gave WP Office and/or Rehman any notice that
Plaintiffs expected compensation from them for the Equipment. Vortt Epol. Co. v. Chevron U.S.A.,
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 17
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
Inc. 787 S.W.2d 942, 944-45 (Tex. 1990) (citing Bashara, 685 S.W.2dat 310) (plaintiff must show
defendant had reasonable notice plaintiff expected compensation). To the contrary, the
correspondence between Plaintiffs and WP Office involved negotiations about removal of the lease
guaranty and retum of the security deposit, with no demand for any retum of or payment for the
Equipment. Exhibit F. Plaintiffs have not presented evidence supporting each element of their
unjust enrichment claim as a matter of law.
I Aiding and A betting
The elements for an aiding and abetting claim are: (1) the primary actor committed
a tort;
(2) the defendant had knowledge that the primary actor's conduct constituted
a tort; (3) defendant
had intent to assist the primary actor, (4) defendant gave the primary actor assistance or
encouragement;
and (5) defendant's
conduct was a substantial factor in causing
the tort.
Innobiliere
J euness Establissementv. Amegy Bank National Assn., 525 S.W.3d 875, 882 (Tex.
App.—Houston [14" Dist.] 2017, no pet.) (citing Juhl v. Airington, 936 S.W.2d 640, 643 (Tex.
1996). Causation therefore plays into the analysis twice: once as an element of proof required for
the underlying tort and once in establishing that the defendant's conduct has been a substantial
factor in causing the underlying
tort. Id. The damages would be those caused by the underlying
tort Id.
1 Traditional
Plaintiffs cannot prevail on their aiding and abetting claims against WP Office and/or
Rehman, because the evidence establishes WP Office and Rehman lacked the requisite knowledge
and intentto assist in any underlying
tort - if any underlying
tort was even committed.
The plaintiff must establish that the defendant had knowledge that the primary actor's
conduct constituted a tort. Restatement Second, Torts § 876(b) (“one is subject to liability if
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 18
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
he. ..knows
that the other’s conduct constitutes
a breach of duty...”). The plaintiff
must further
establish that the defendant intended to assist the primary actor in committing the tort. Shinnv.
Allen, 984 S.W.2d 308, 311 (Tex. App.—Houston [1° Dist.] 1998, no pet.). Here, the evidence
establishes the opposite. Communications between the MedSpa Defendants and WP Office
indicate Rehman and WP Office's belief that Plaintiff Stanley had no legal right to possess
the
Equipment. ExhibitA, ExhibitC. Further, the Defendants
and their counsel asserted
and continue
to assert they have a superior right to possess the Equipment, negating their knowledge
or intent
that any of their actions constituted or assisted in any underlying tort against Plaintiffs. Exhibits
DEGJK.
Plaintiffs cannot establish Rehman and/or
WP Office’ s conduct was a substantial factorin
causing the underlying tort. Plaintiffs’ complaint against the MedSpa defendants is that they
allegedly did not pay Plaintiffs for the lease of the Equipment, and sold or attempted
to sell the
Equipment. Plaintiffs’ Original Petition (119, 24, 26. Again, the evidence affirmatively establishes
that WP Office and Rehman did not aid or abet those actions. To the contrary, WP Office
demanded
both Plaintiffs and the Med Spa Defendants
cease and desist removal of the Equipment
from the property to preserve its landlord's lien. Exhibit K.
2 No Evidence
Thereis no evidence of any underlying
tort committed in which Rehman and/or
WP Office
aided
and abetted. Plaintiffs have not established their ownership of the Equipment, and even if
they were the owners, the evidence indicates
WP Office’s superior right of possession
under the
landlord's lien provisions of the Lease. Plaintiffs have not presented evidence that Rehman or WP
Office knew any actions by them or their co-defendants were tortious or unlawful, negating the
required intent and knowledge elements of Plaintiffs’ claim as a matter of law. There is also no
DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 19
AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS
evidence of Rehman and/or
WP Office's aiding or abetting the MedSpa Defendants in failing to
pay Plaintiffs for the Equipment or selling the Equipment, where they demanded both the MedSpa
Defendants and Plaintiffs keep the Equipment on the leased premises.
J Intentional Infliction of Emotional Distress - Rehman Only
A party who claims intentional infliction of emotional distress (ITED) must prove (i) the
defendant acted intentionally or recklessly, (ii) the defendant's conduct was extreme and
outrageous, (iii) the outrageous conduct caused the complainant emotional distress, and (iv) the
emotional distress suffered was severe. Williams v. City of Dallas, 53 S.W.3d 780, 788-89 (Tex.
App.—Dallas 2001, no pet) (citing Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52,
54 (Tex. 1998)); Twymanv. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)).
1 Traditional
The tort of ITED is a “gap-filler’, available only in the rare cases when an alleged victim
has no other recognized theory of redress. Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d
438, 447 (Tex. 2004). As an initial matter, the ITED tort is not available to Plaintiffs as a matterof
law, where Plaintiffs have alleged at least ten (10) other causes of action against Rehman they
assert entitle them to redress for the same alleged actions and events.
A defendant’s conduct is not extreme and outrageous when the defendant asserts a legal
right in a permissible
way, even if the defendant is aware that this assertion is certain to cause
emotional distress. Wornick
Co. v. Casas, 856 S.W.2d_732, 735 (Tex. 1993) (citing Reidv. Sears,
Roebuck & Co., 790 F.2d 453, 462 (6th Cir.1986) (no liability for intentional infliction of
emotional distress
where an actor does
Preview
Filed: 8/16/2023 1:55 PM Michael Gould District Clerk Collin County, Texas By J aclyn Grayson Deputy Envelope ID: 78597093 No. 471-03452-2021 VERTICAL INTERGRATION IN THE DISTRICT COURT CONSULTING, LLC, AND RANDALL STANLEY, Plaintiffs, Vv. JASON LEDBETTER, NICOLE 4715' JUDICIAL DISTRICT LEDBETTER, MY MED SPA, LLC, TRY WELLNESS GROUP, LLC, W.P. OFFICES, LP, AND RICHARD REHMAN, JOHN BLANCHARD, AND MEDICAL DEVICE ALLIANCE, Defendants.§ COLLIN COUNTY, TEXAS DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S TRADITIONAL AND NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT. TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES Defendants Richard Rehman (“Rehman”), and WP Office LP (“WP Office”) named Defendants in the above-entitled and numbered cause, and file this their Traditional and No-Evidence Motion for Summary Judgment against VERTICAL INTEGRATION CONSULTING LLC (“Vertical”), RANDALL STANLEY (“Stanley”) (Collectively “Plaintiffs”), Nicole Ledbetter (“Ledbetter”) and My Med Spa LLC (“My Med Spa”) (Collectively (“Med Spa Defendants”), and respectfully shows the Court: I, SUMMARY JUDGMENT EVIDENCE Exhibit Description Affidavit of Richard Rehman. Office Lease Agreement (Bates 1-37) May 13, 2020 emails between Rehman and Ledbetter (Bates 87-88) May 20, 2020 Demand Letter (Bates 44-46) June 5, 2020 Email from Rehman to Stanley (Bates 61-62) June 22, 2020 Email from Stanley to Rehman (Bates 52) June 23, 2020 Email from Rehman to Stanley (Bates 51) July 2, 2020 Emails between Rehman and Stanley (Bates 70) Lease Guarantee Termination Agreement (Bates 69) DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 1 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS J August 3, 2020 Emails between Ledbetter, Stanley, and Rehman (Bates 71) May 4, 2021 Demand Letter (Bates 79-86) II, UNDISPUTED FACTS This case is a business dispute between Plaintiffs Vertical Integration Consulting, LLC and Randall Stanley on one side (collectively, “Plaintiffs”), and Nicole Ledbetter, My Med Spa, LLC, and Try Wellness Group, LLC on the other side (collectively, “Med Spa Defendants”). Plaintiffs and the Med Spa Defendants entered into negotiations regarding equipment needed to operate a med spa business in Collin County. Plaintiff s Original Petition (“POP”), 118. However, Plaintiffs and the Med Spa Defendants dispute who owned and/or had the right to possess the equipment at various times and other aspects of the business relationship between them, which is the basis of this lawsuit. WP Office was the landlord for the real estate used as the business location for the med spa business. On or about February 22, 2019, WP Office as Landlord, and My Med Spa, LLC as Tenant, entered into an Office Lease Agreement (“Lease”), a true and correct copy of which wes attached to POP and is attached hereto as Exhibit B. Rehman executed the Lease on behalf of Landlord WP Offices, LP, denoting “Its: Manager’ under his signature. Exhibit B, p. 18. Plaintiff Stanley executed the Lease on behalf of Tenant My Med Spa, LLC, denoting “Its: CEO” under his signature. Id. Plaintiff Stanley and Defendant Nicole Ledbetter also each personally guaranteed the Lease. ExhibitB, p. 34-37. The Lease provided: EVENTS OF DEFAULT. The following events shall be deemed to be events of default by Tenant under this lease: ® Tenant shall desert or vacate any portion of the premises or shall fail to take occupancy of the premises on the Commencement Date. Tenant will be presumed to have abandoned the premises if goods, equipment, or other property, in an amount substantial enough to indicate a probable intent to abandon the premises, is being or has been removed from the premises and the removal is not within the nonmal course of Tenant’s business. DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 2 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS Exhibit B, 119(f) (emphasis added). LANDLORD’S LIEN. In addition to the statutory landlord's lien, Landlord shall have, at all times, and Tenant hereby grants to Landlord, a valid security interest to secure payment of all rentals and other sums of money becoming due hereunder from Tenant, and to secure payment of any damages of loss which Landlord may suffer by reason of the breach by Tenant of any covenant, agreement or condition herein, upon all goods, wares, equipment, fixtures, furniture, and improvements and other personal property of Tenant presently or which may hereafter be situated on the premises, and all proceeds therefrom, and such property shall not be removed therefrom without the consent of Landlord... Exhibit B, (23 (emphasis added). After leasing the premises for the med spa business, Plaintiffs and/or the Med Spa Defendants moved equipment into the leased premises and began using it. POP, 119. Shortly thereafter, in light of the business dispute between Plaintiffs and the Med Spa Defendants, Plaintiff Stanley removed some of the equipment in dispute from the leased premises and attempted to remove even more equipment. Exhibits C, J. Plaintiffs have admitted such removal in their live Pleading. POP, {20 (“Plaintiffs have repeatedly demanded a retum of the Equipment”), 21 (“Plaintiffs were ableto secure some of the above Equipment from Defendants”), {22 (“equipment being taken back by Plaintiffs...after Plaintiffs removed it’), (27 (“After attempting to retrieve more of The Equipment from The Premises...”). WP Office became aware of Stanley’s removal of such equipment when Ledbetter emailed Rehman on May 13, 2020 and stated “I found out who took stuff[.] It was randy [Stanley]...He keeps coming and taking Daily”. Exhibit C. Rehman responded “So Randy Stanley is removing the equipment?...he is the CEO of My Med Spa... Have you talked to him about this?” Exhibit C. Ledbetter responded, asserting Stanley was not the CEO of My Med Spa and the company was Ledbetter’s alone. ExhibitC. Rehman, in his capacity as Manager for WP Office, conducted a search with the Texas Secretary of State and reviewed the Certificate of Formation, which revealed that Plaintiffs were DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE-3 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS not listed as managers. ExhibitA. The two managers listed were Defendant Try Wellness Group, LLC and NIX Medical Management, LLC, and aTexas Secretary of State search of those entities revealed no association of Plaintiffs with either entity. Exhibit A. Concemed that Plaintiffs and the Med Spa Defendants were removing equipment with intent to abandon the premises in violation of the Lease, WP Office, through its counsel, sent Plaintiffs and the Med Spa Defendants a demand letter on or about May 20, 2020, a true and correct copy of whichis attached hereto as Exhibit D. The demand letter recited the above-quoted portions of the Lease and demanded the parties cease further removal of equipment from the property without giving WP Office notice and a list of the equipment being removed. ExhibitD. OnJune 5, 2020, after becoming aware of further attempts to remove equipment from the leased premises, WP Office sent an email directedto Plaintiff Stanley informing him that trespass charges would be filed and/or further legal action taken if he attempted to enter the property. A true and correct copy of that email was attached to POP and is attached hereto as Exhibit E. The email was signed by “Richard Rehman as Manager for WP Offices”. Exhibit E. Inresponse, Stanley did not demand entry onto the property, assert any claim or right over the property sought to be removed, or provide WP Office with notice and a list of equipment he intendedto remove. To the contrary, on June 22, 2020, Stanley responded to Rehman’ s email on behalf of WP Office indicating “I agree to be removed from the lease...” ExhibitsA, F. Notably, the Tenant My Med Spaby and through Defendant Nicole Ledbetter, notifiedWP Office that it did not consent to Plaintiff Stanley’s removal of the equipment from the leased premises. Exhibit A. My Med Spa LLC forwarded WP Office an email dated August 3, 2020, wherein Plaintiff Stanley indicates, “all of the equipment I purchased needs to be removed. I will be scheduling a moving company this week.” ExhibitJ. In response, WP Office sent an email DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE-4 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS directedto Plaintiff Stanley notifying him that “If you or any movers attempt to enter the Building or the premises of My Med Spa LLC. ..I will have the Plano Police Dept. contacted and you both arrested for tresspassing!” True and correct copies of the August 3, 2020 emails were attached to POP and are attached hereto as Exhibit J. Inresponse, Plaintiffs filed suit on June 29, 2021 alleging multiple claims against Rehman. and WP Office, all generally complaining that Rehman and/or WP Office interfered with Plaintiffs attempts to reclaim property listed on pp. 5-7 of Plaintiff’s Original Petition (the “Equipment”) from the leased premises. Il]. ARGUMENT AND AUTHORITIES Rehman and WP Office incorporate the foregoing paragraphs. Rehman and WP Office move for both traditional and no-evidence summary judgment on each cause of action and affirmative defense set forth herein. A Summary J udgment Standard - Traditional and No Evidence In atraditional motion for summary judgment, the movant for summary judgment must show there is no genuine issue as to a material fact and that the movant is entitled to judgment as a matter of law. TEX. R. Civ. P. 166a(c); MD. Anderson Hosp. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). The burden shifts to the nonmovant after the movant has established that it is entitled to summary judgment as a matter of law. See Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). The nonmovant must then produce any summary judgment proof to raise a fact issue. Id. at 558. Summary judgment is proper on the basis of uncontroverted testimonial evidence of an interested witness if that evidence is clear, positive, and direct, otherwise credible, and free from contradictions and inconsistencies, and could have been readily controverted. Id. (quoting TEx. R. Cw. P. 166a(c)). DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 5 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS A movantis entitledto summary judgment as a matter of law when it proves all essential elements of its claim or defense or disproves the facts of at least one element of the nonmovant’s claim or defense. Swilleyv. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidenceof one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Id.; Hamiltonv. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). In determining if a party had adequate time for discovery, the court should consider the following factors: (1) the nature of the case, (2) the nature of the evidence necessary to controvert the no-evidence motion, (3) the length of time the case was active, (4) the amount of time the no- evidence motion was on file, (5) whether the movant had requested stricter deadlines for discovery, (6) the amount of discovery that already had taken place, and (7) whether the discovery deadlines in place were specific orvague. Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 467 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Further, when additional discovery sought by a party is immaterial to the issues presented by the motion for summary judgment, the court can address the motion for summary judgment without delay despite a party’s request for additional discovery. See Patrickv. Howard, 904 S.W.2d 941, 946 (Tex. App. — Austin 1995, no writ) (affirming summary judgment because requested discovery was immaterial to issues presented by motion); see also Clawson v. Wharton County, 941 S.W.2d 267, 274 (Tex. App. — Corpus Christi 1996, writ denied). DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 6 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS A no-evidence point will be sustained when “(a) there is a complete absence of evidence of avital fact, (b) the court is barred by mules oflaw or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offeredto prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing Merrell Dow Pharns., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). B. Conversion (Trover) To establish a claim for conversion, a plaintiff must prove that: (1) the plaintiff owned or had possession of the property or entitlement to possession; (2) the defendant unlawfully and without authorization assumed and exercised control over the property to the exclusion of, or inconsistent with, the plaintiff's rights as an owner, (3) the plaintiff demanded retum of the property; and (4) the defendant refused to retum the property. Scott Pelley P.C. v. Wynne, No. 05- 15-01560-CV, 2017 WL 3699823 at *11 (Tex. App.—Dallas August 28, 2017, pet. denied) (emphasis added) (citing Lawyers Title Co. v. J.G. Cooper Dev., Inc., 424 S.W.3d.713, 718 (Tex. App.-Dallas 2014, pet. denied); Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 365 (Tex. App.-Dallas 2009, pet. denied)). The plaintiff also must establish it was injured by the conversion. Id. (citing United Mobile Networks L.P. v. Deaton, 939 S.W.2d 146, 147 (Tex. 1997) (per curiam); Lawyers Title Co., 424 S.W.3dat 718). 1 Traditional Plaintiffs cannot prevail on their conversion claim, because WP Office had authorization to exercise control over the Equipment, and a superior right to possess such Equipment, as a matter of law. “[T]Jhere can be no conversion where one takes only what he was entitled to receive.” Enduro Oil Co. v. Parish & Ellison, 834 S.W.2d 547, 549 (Tex. App.— Houston [14" Dist] 1992, DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE-7 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS writ denied). “Thus, if a defendant proves that he has a superior title or is entitled to the property pursuant to an agreement, an action for conversion cannot be maintained.” Id. The Landlord's Lien provision in the Lease requires the Equipment allegedly converted to remain on the leased premises, rendering Plaintiffs unable to prove their entitlementto possession of the Equipment as a matter of law. Paragraph 23 of the Lease grants WP Office a security interest in “all goods, wares, equipment, fixtures, funiture, and improvements and other personal property of Tenant presently or which may hereafter be situtated on the premises”, and requires that “such property shall not be removed therefrom without the consent of Landlord...” WP Office never gave consent for Plaintiffs to remove the Equipment from the leased premises; to the contrary, WP Office repeatedly demanded that Plaintiffs cease and desist removing such Equipment. Exhibits D, E, GJ, K. Plaintiffs cannot prove the first element of conversion as a matterof law, because WP Office had a superior right to possess the Equipment under the Lease. Further, it is undisputed that Plaintiffs removed other property from the leased premises, outside the normal course of business and with probable intentto abandon the premises. Plaintiffs’ own pleadings indicate the removal of property from the premises. POP, 9720, 21, (22, 27. Stanley’s email to Ledbetter further indicates Stanley’ s intent to immenently remove “all of the equipment [Stanley] purchased...this week’. ExhibitJ. Plaintiffs’ removal or imminent removal of goods, equipment and property in such a substantial amount - all equipment purchased by Stanley- invokes a presumption of abandonment of the premises under the Lease, which is an act of default by the tenant. Exhibit B p. 8-9 {119(f). The occurrence of the event of default by the tenant entitled WP Office, through Rehman, to “take possession of any and all goods, wares, equipment, fixtures, fumiture, improvements and other personal property of Tenant situated on the presmises, without liability for trespass or conversion...” Exhibit B, p. 11 {23 (emphasis added). DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 8 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS Thus, WP Office had a superior right to possession and control of the Equipment Plaintiffs claim. ‘was converted, and Plaintiffs cannot establish the first or second element of their conversion claim. Additionally, Plaintiffs cannot prevail on the third and fourth elements of their conversion claim, because Plaintiffs did not demand from WP Office access to the Equipment that WP Office and/or Rehman refused. To the contrary, on June 22, 2020, Plaintiff Stanley sent an email to Rehman as representative for WP Office indicating, “I agree to be removed from the lease...” Exhibit F. Plaintiffs cannot establish any element of their conversion claimas a matter of law. 2 No Evidence Plaintiffs have presented no evidence they owned or possessed the Equipment or were entitled to possess such Equipment to the exclusion of any of the other defendants in this case. The Equipment was located on premises owned by WP Office and leased by My Med Spa, LLC, not Plaintiffs. Plaintiffs have failed to offer even a scintilla of evidence establishing their ownership or other rights to the Equipment, as necessary to prevail on their conversion claim. To the extent Rehman, acting on behalf of WP Office, exercised control over the Equipment, there is no evidence such control was unlawful. To the contrary, WP Office was entitled to require the Equipment to remain on the leased premises and/or to take possession of the Equipment under the terms of the Lease. Plaintiffs have not presented even a scintilla of evidence that they demanded access to the Equipment from Rehman and/or WP Office. To the contrary, the only communication by Plaintiffs to WP Office was agreeing and asking to be removed from the Lease, not to gain access to the Equipment. Exhibits F, H. Because Plaintiffs have not presented even a scintilla of evidence on each element of their conversion claim, Rehman and WP Office are entitled to summary judgment as a matter of law. DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE-9 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS Cc Texas Theft Liability Act Pursuant to the Texas Theft Liability Act, a person who commits theft is liable for the damages resulting from the theft. Scott Pelley P.C. v. Wynne, 2017 WL 3699823 at *12 (citing Tex. Civ. PRAC. & REM. CODE ANN. § 134.003(a) (West 2011); Tex. Integrated, 300 S.W.3dat 366). Theft is defined as “unlawfully appropriating property or unlawfully obtaining services as described by [s]ection[s] 31.03, 31.04, 31.06 [or 31.11-31.14 of the Texas] Penal Code.” Id. (citing TEX. Civ. PRAC. & REM. CODE § 134.002(a); Tex. Integrated, 300 S.W.3d at 366; TEX. PEN. CODE § 31.03 (theft)). Section 31.03(a) of the Texas Penal Code provides that “[a] person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.” Appropriation of property is unlawful if itis without the owner's effective consent. Id. (citing TEx. PEN. CODE § 31.03(b)(1); Tex. Integrated, 300 S.W.3d at 366). 1 Traditional Plaintiffs cannot prevail on their theft liability act claimas a matterof law, because Rehman. and WP Office did not unlawfully appropriate the Equipment. WP Office insisted that Plaintiffs leave the Equipment on the leased premises, which was required under the terms of the Lease. The Lease gives WP Office a security interest in the Equipment and requires that “such property shall not be removed therefrom without the consent of Landlord...” Exhibit B (23. Plaintiffs never requested Landlord’ s consent to remove Equipment from the leased premises and WP Office never gave consent for Plaintiffs to remove Equipment from the leased premises, and repeatedly demanded that Plaintiffs cease and desist removing such Equipment. ExhibitsD, E, G, J, K. Rehman and WP Office were well within their lawful rights in demanding Plaintiffs keep the Equipment on the least premises, and that action cannot constitute theft as a matter of law. DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 10 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS WP Office also had the exclusive right to possess and control the Equipment under the terms of the Lease, negating Plaintiffs’ claim. Plaintiffs defaulted under the lease by removing property from the leased premises, outside the normal course of business and with probable intent to abandon the premises. Exhibit B {19(f); POP, 120, 21, "22, (27; Exhibits C, J. The occurrence of the event of default by the tenant entitled WP Office, through Rehman, to “take possession of any and all good, wares, equipment, fixtures, furniture, improvements and other personal property of Tenant situated on the presmises...”, including the Equipment. ExhibitB, (23. WP Office and Rehman cannot have unlawfully appropriated the Equipment from Plaintiffs where WP Office had the exclusive right to possess and control such Equipment. 2 No Evidence Plaintiffs have failed to offer any evidence they had an ownership interest or possessory interest in the Equipment allegedly stolen, as required to prevail on their theft liability act claim. See TEX. PEN. CODE § 31.03(a); Freemanv. State, 707 S.W.2d 597, 603 (Tex. Crim. App.— 1986). My Med Spa LLC was the tenant on the Lease. Neither Plaintiff Stanley nor Plaintiff Vertical Integration Consulting, LLC was a party to the Lease that would allow them any right to access the leased property and remove Equipment And, not even the actual tenant could remove such Equipment under the terms of the Lease, given the landlord's lien provisions. Exhibit B, (23. There is no evidence that any appropriation by Rehman or WP Office was unlawful. To the contrary, the Lease gave WP Office a superior right to possess the Equipment and require that it remain on the leased premisesto secure the landlord's security interest. Because Plaintiffs have not presented even a scintilla of evidence on each element of their Texas Theft Liability claim, Rehman and WP Office are entitled to summary judgment as a matter of law. DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 11 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS D Common Law Fraud Plaintiffs have limited common law fraud claims to the Med Spa defendants and have not asserted common law fraud claims against Rehman or WP Office. Therefore, summary judgment on this claim is not necessary. E Tortious Interference with Prospective Business Relationships To establish a cause of action for tortious interference with prospective contract or business relationships, a plaintiff must show that (1) there was a reasonable probability that the parties would have entered into a business relationship; (2) the defendant committed an independently tortious or unlawful act that prevented the relationship from occuring; (3) the defendant either acted with a conscious desireto prevent the relationship from occurring or knew the interference ‘was certain or substantially certain to occuras a result of the conduct; and (4) the plaintiff suffered actual harm or damages as a result of the defendant's interference. Vertex Services, LLC v. Oceanwide Houston, Inc., 583 S.W.3d 841, 856 n.7 (Tex. App.—Houston [1 Dist.] 2019, no pet.) (citing Better Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 361-62 (Tex. App.— Houston [1st Dist.] 2013, pet. denied); Richardson-Eagle, Inc. v. WilliamM. Mercer, Inc., 213 S.W.3d 469, 475 (Tex. App.—Houston [1st Dist.] 2006, pet. denied)). 1 Traditional Rehman and WP Office incorporate the foregoing paragraphs. Plaintiffs cannot prevail on. their tortious interference claim because Rehman and WP Office’s conduct was not tortious or unlawful as a matter of law. WP Office, through Rehman, was entitled to demand the Equipment remain onthe leased premises to satisfy the landlord's lien provisions of the Lease, and/orto take possession of the Equipment following Plaintiffs’ removal of the substantial amount of property triggering the default provisions. Exhibit B {1 19(f), 23; POP, §§20, 21, (22, (27; Exhibits C, J. DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 12 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS WP Office was entirely within its legal rights to demand Plaintiffs cease and desist removing Equipment from the leased premises, and Plaintiffs cannot establish the second element of their tortious interference claim as a matter of law. Hill v. Heritage Res., 964 S.W.2d 89, 123 (Tex.App.—El Paso 1997, pet. denied) (citing Victoria Bank & Trust v. Brady, 811 S.W.2d 931, 989 (Tex.1991)) (“Generally, the interfering party is justified in interfering if the actions are done ina bona fide exercise of the party's own rights or if the party has an equal or superior right in the subject matter”). If the defendant did not have actual knowledge of the prospective contract or business relations, its interference cannot be intentional and the plaintiff cannot prevail on its tortious interference claim. Hill v. Heritage Res., 964 S.W.2d 89, 123 (Tex.App.—El Paso 1997, pet. denied). Here, neither Rehman nor any other agent of WP Office had such knowledge. ExhibitA. None of the communications between Rehman and Stanley during the relevant time period inform Rehman of any such relationship. ExhibitsE, F, G, H, I, J. There was no intentional interference with any known business relationship, and Rehman and WP Office are entitled to summary judgment on the claim. 2 No Evidence Plaintiffs have not presented any evidence that there was a reasonable probability they would have entered into other business relationships conceming the Equipment. Even if they had such evidence, Plaintiffs have not presented a scintilla of evidence demonstrating Rehman and/or WP Office had knowledge of such prospective business relationships that would render any action by them intentionally damaging. To that end, Plaintiffs have not presented any evidence demonstrating they were damaged by any conduct by Rehman and/or WP Office. There is not even DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 13 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS ascintilla of evidence supporting each element of Plaintiffs’ tortious interference claim, andit fails as a matter of law. F Civil Conspiracy The Texas Supreme Court has defined the elements of civil conspiracy as: “(1) two ormore persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result.” Vertex Services, LLC, 583 S.W.3dat 857 (quoting Agar Corp., Inc. v. Electro Circuits Int'l, LLC, 580 S.W.3d 136, 141 (Tex. 2019) (quoting Massey v. Armco Steel Co., 652 S.W.2d 982, 934 (Tex. 1983)). Civil conspiracy is not an independent tort, but a derivative tort that depends on participationin some underlying tort for which the plaintiff seeks to hold the defendant liable. Id.; Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996). Therefore, civil conspiracy “survives or fails alongside” the underlying tort alleged. Agar, 580 S.W.3d at 141. 1 Traditional Plaintiffs’ civil conspiracy claims fail because there is no underlying tort committed by WP Office or Rehman, as a matter of law. WP Office, through Rehman, was entitled to demand the Equipment remain on the leased premises to satisfy the landlord's lien provisions of the Lease, and/orto take possession of the Equipment following Plaintiffs’ removal of the substantial amount of property triggering the default provisions. Exhibit B | 19(f), 23; POP, $920, 21, (22, 27; Exhibits C, J. WP Office was entirely within its legal rightsto demand Plaintiffs cease and desist removing Equipment from the leased premises, and Plaintiffs cannot establish any underlying tort supporting civil conspiracy as a matterof law. DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 14 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS 2 No Evidence There is no evidence of any unlawful, overt act by Rehman and/or WP Office supporting Plaintiffs’ conspiracy claim. Further, there is no evidence of any meeting of the minds between Rehman, WP Office, and the Med Spa Defendants. The communication between those parties indicates WP Office advised the Med Spa Defendants to discuss the issue with Stanley, and that WP Office would seek the advice of legal counsel regarding the issue. ExhibitC. Finally, thereis no evidence of any damage to Plaintiffs as a result of any action by Rehman and/or WP Office. G Trespass to C hattel To interfere wrongfully with the use or possession of property is a trespass to chattels. Onmibus Intern., Inc. v. AT&T, Inc., 111 S.W.3d 818, 826 (Tex. App.—Dallas 2003, no pet). (citing Jarvis v. SW. Bell Tel. Co., 432 S.W.2d 189, 191 (Tex. Civ. App.--Houston [14th Dist] 1968, no writ)). For liability to attach, causing actual damage to the property or depriving the owner of its use for a substantial period must accompany the wrongful interference. Id. (citing Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201 (Tex. 1981)). 1 Traditional Any interference by Rehman and/or WP Office with Plaintiffs’ possession of the Equipment was not wrongful. WP Office, through Rehman, was entitled to demand the Equipment remain onthe leased premises to satisfy the landlord's lien provisions of the Lease, and/orto take possession of the Equipment following Plaintiffs’ removal of the substantial amount of property triggering the default provisions. Exhibit B {1 19(f), 23; POP, §§20, 21, (22, (27; Exhibits C, J. Plaintiffs cannot establish their tresspass to chattel claim as a matter of law. DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 15 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS 2 No Evidence Plaintiffs have not met their burden to establish they own the Equipment, or that Rehman. and/or WP Office has deprived Plaintiffs of the use of such Equipment. Neither Rehman nor WP Office has done anything to prevent the Equipment from being used on the leased premises, forits intended purpose in the scope of the MedSpa business. The MedSpa Defendants have asserted that they have a legal right to use the Equipment and are using it in the course of their business. Plaintiffs have not presented any evidence of how they have been damaged by Rehman. and/or WP Office's failure to allow them to repossess the Equipment, when Plaintiffs have presentedno evidence of any other business opportunityto use or profit from the Equipment. H Unjust Enrichment Unjust enrichment is an equitable theory of recovery where a party has obtained a benefit from another by fraud, duress or the taking of an undue advantage, and the receipt of those benefits is not govemed by contract. Masonv. Mason, No. 07-12-00007-CV, 2014 WL 199649 at*5 (Tex. App.—Amanillo January 13, 2014, no pet.) (citing Heldenfels Bros., Inc. v. City of Corpus Christi, 832 S.W.2d 39, 41 (Tex. 1992); Lone Star Steel Co. v. Scott, 759 S.W.2d 144, 154 (Tex. App.-- Texarkana 1988, writ denied). Itis not a properremedy merely because “it might appear expedient or generally fair that some recompense be afforded for an unfortunate loss....” Id; (quoting Heldenfels Bros., Inc., 832 S.W.2d at 42). The claim is based upon an implied agreementto pay for services rendered or materials fumished and knowingly accepted. Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 732 (Tex. 2018). As a remedy based on quasi-contract principles, unjust enrichment is unavailable when a valid, express contract goveming the subject matter of the dispute exists. Leev. Lee, 411 S.W.3d at 112 (citing Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671, 683-84 (Tex. 2000); Christus DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 16 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS Health v. Quality Infusion Care, Inc., 359 S.W.3d 719, 723 (Tex. App.--Houston [1st Dist.] 2011, no pet.)). 1 Traditional Here, there was no implied agreement for Rehman and/or WP Office to pay Plaintiffs for the use of the Equipment. To prove an action for quantum meruit, the plaintiff must establish that the services or materials were provided for the defendant. Truly v. Austin, 744 S.W.2d 934, 937 (Tex. 1998). If the defendant did not benefit or benefitted only incidentally from the plaintiff’s actions, the defendantis not subjectto liability. Basharav. Baptist Ment] Hosp. Sys., 685 S.W.2d. 307, 310 (Tex. 1985). Plaintiffs do not allege that they provided the Equipment to Rehman and/or WP Office or for their benefit, or that they had any express or implied agreement for Rehman and/or WP Office to pay Plaintiffs for the Equipment. Rather, Plaintiffs’ allegation in this case is that they provided the Equipment to the MedSpa Defendants for use in their business operations, with the intent to lease the Equipment to the MedSpa Defendants and obtain payment from them. Plaintiffs’ Original Petition {"119, 26. Those allegations do not support any compensable goods or services provided for the benefit of Rehman and/or WP office that could support an unjust enrichment claim, and Defendants contend there are none. ExhibitA. 2 No Evidence There is no evidence of any services or materials provided to WP Office and/or Rehman that could support an unjust enrichment claim. As a matter of law, the Equipment was provided to the MedSpa Defendants underan alleged equipment lease, whichis the subject of Plaintiffs’ claims against those parties. Nor is there any evidence Plaintiffs gave WP Office and/or Rehman any notice that Plaintiffs expected compensation from them for the Equipment. Vortt Epol. Co. v. Chevron U.S.A., DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 17 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS Inc. 787 S.W.2d 942, 944-45 (Tex. 1990) (citing Bashara, 685 S.W.2dat 310) (plaintiff must show defendant had reasonable notice plaintiff expected compensation). To the contrary, the correspondence between Plaintiffs and WP Office involved negotiations about removal of the lease guaranty and retum of the security deposit, with no demand for any retum of or payment for the Equipment. Exhibit F. Plaintiffs have not presented evidence supporting each element of their unjust enrichment claim as a matter of law. I Aiding and A betting The elements for an aiding and abetting claim are: (1) the primary actor committed a tort; (2) the defendant had knowledge that the primary actor's conduct constituted a tort; (3) defendant had intent to assist the primary actor, (4) defendant gave the primary actor assistance or encouragement; and (5) defendant's conduct was a substantial factor in causing the tort. Innobiliere J euness Establissementv. Amegy Bank National Assn., 525 S.W.3d 875, 882 (Tex. App.—Houston [14" Dist.] 2017, no pet.) (citing Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996). Causation therefore plays into the analysis twice: once as an element of proof required for the underlying tort and once in establishing that the defendant's conduct has been a substantial factor in causing the underlying tort. Id. The damages would be those caused by the underlying tort Id. 1 Traditional Plaintiffs cannot prevail on their aiding and abetting claims against WP Office and/or Rehman, because the evidence establishes WP Office and Rehman lacked the requisite knowledge and intentto assist in any underlying tort - if any underlying tort was even committed. The plaintiff must establish that the defendant had knowledge that the primary actor's conduct constituted a tort. Restatement Second, Torts § 876(b) (“one is subject to liability if DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 18 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS he. ..knows that the other’s conduct constitutes a breach of duty...”). The plaintiff must further establish that the defendant intended to assist the primary actor in committing the tort. Shinnv. Allen, 984 S.W.2d 308, 311 (Tex. App.—Houston [1° Dist.] 1998, no pet.). Here, the evidence establishes the opposite. Communications between the MedSpa Defendants and WP Office indicate Rehman and WP Office's belief that Plaintiff Stanley had no legal right to possess the Equipment. ExhibitA, ExhibitC. Further, the Defendants and their counsel asserted and continue to assert they have a superior right to possess the Equipment, negating their knowledge or intent that any of their actions constituted or assisted in any underlying tort against Plaintiffs. Exhibits DEGJK. Plaintiffs cannot establish Rehman and/or WP Office’ s conduct was a substantial factorin causing the underlying tort. Plaintiffs’ complaint against the MedSpa defendants is that they allegedly did not pay Plaintiffs for the lease of the Equipment, and sold or attempted to sell the Equipment. Plaintiffs’ Original Petition (119, 24, 26. Again, the evidence affirmatively establishes that WP Office and Rehman did not aid or abet those actions. To the contrary, WP Office demanded both Plaintiffs and the Med Spa Defendants cease and desist removal of the Equipment from the property to preserve its landlord's lien. Exhibit K. 2 No Evidence Thereis no evidence of any underlying tort committed in which Rehman and/or WP Office aided and abetted. Plaintiffs have not established their ownership of the Equipment, and even if they were the owners, the evidence indicates WP Office’s superior right of possession under the landlord's lien provisions of the Lease. Plaintiffs have not presented evidence that Rehman or WP Office knew any actions by them or their co-defendants were tortious or unlawful, negating the required intent and knowledge elements of Plaintiffs’ claim as a matter of law. There is also no DEFENDANTS WP OFFICE LP AND RICHARD REHMAN’S ORIGINAL ANSWER, PAGE- 19 AFFIRMATIVE DEFENSES, COUNTERCLAIMS AND CROSSCLAIMS evidence of Rehman and/or WP Office's aiding or abetting the MedSpa Defendants in failing to pay Plaintiffs for the Equipment or selling the Equipment, where they demanded both the MedSpa Defendants and Plaintiffs keep the Equipment on the leased premises. J Intentional Infliction of Emotional Distress - Rehman Only A party who claims intentional infliction of emotional distress (ITED) must prove (i) the defendant acted intentionally or recklessly, (ii) the defendant's conduct was extreme and outrageous, (iii) the outrageous conduct caused the complainant emotional distress, and (iv) the emotional distress suffered was severe. Williams v. City of Dallas, 53 S.W.3d 780, 788-89 (Tex. App.—Dallas 2001, no pet) (citing Southwestern Bell Mobile Sys., Inc. v. Franco, 971 S.W.2d 52, 54 (Tex. 1998)); Twymanv. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). 1 Traditional The tort of ITED is a “gap-filler’, available only in the rare cases when an alleged victim has no other recognized theory of redress. Hoffmann-La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004). As an initial matter, the ITED tort is not available to Plaintiffs as a matterof law, where Plaintiffs have alleged at least ten (10) other causes of action against Rehman they assert entitle them to redress for the same alleged actions and events. A defendant’s conduct is not extreme and outrageous when the defendant asserts a legal right in a permissible way, even if the defendant is aware that this assertion is certain to cause emotional distress. Wornick Co. v. Casas, 856 S.W.2d_732, 735 (Tex. 1993) (citing Reidv. Sears, Roebuck & Co., 790 F.2d 453, 462 (6th Cir.1986) (no liability for intentional infliction of emotional distress where an actor does