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PATRICK O. DEVANEY, II and
HARRIS COUNTY, TEXAS
QUANTA SERVICES, INC.; QUANTA
GOVERNMENT SOLUTIONS, INC.;
QUANTA GOVERNMENT SERVICES,
rd
INC.; QUANTA INTERNATIONAL JUDICIAL DISTRICT
LIMITED; and JOHN R. COLSON
tial Summary Judgment
Summary of the Argument........................................................................................................
Factual Background ............................................................................................................
Devaney Elects to Remain an Outside Consultant for Quanta ................................5
Plaintiffs Submitted 100+ Consulting Invoices to Quanta over Eight
Years – and None Mentioned Any Additional Compensation ................................9
Plaintiffs Repeatedly Change Their Story During Litigation ................................11
All of Plaintiffs Legally Deficient Theories Are Subject to Pending
Dispositive Motions ...............................................................................................12
mmary Judgment Evidence ........................................14
Legal Standard ................................................................................................................
Argument ......................................................................................................................
Plaintiffs Are Not Entitled to Summary Judgment on Their Fraud-
Based Claims .........................................................................................................15
Fact issues regarding whether a misrepresentation was made
preclude summary judgment on pl
nondisclosure claims. .................................................................................16
Plaintiffs’ have no claim fo
employment document regardless of any fact disputes. ............................18
Plaintiffs’ only remedy is prohibited by Texas law. ..................................22
Plaintiffs are not entitled to summary judgment on their
promissory fraud claim because they cannot enforce any of
their other alleged promises as a matter of law..........................................25
Plaintiffs Are Not Entitled to Summary Judgment on Their Statutory
Fraud Claim ...........................................................................................................26
ry Judgment for Quanta on
With Business Relations Claim..........................28
Plaintiffs’ Are Not Entitled to Summary Judgment on their Promissory
Estoppel Claim .......................................................................................................31
Plaintiffs Are Not Entitled to Summary Judgment on Their Conversion
Claim. .....................................................................................................................34
Plaintiffs Are Not Entitled to Summary Judgment on Negligence and
Breach of Confidentiality. ......................................................................................35
Conclusion ....................................................................................................................
898 S.W.2d 269 (Tex. 1995)....................................................................................................
989 S.W.2d at 276 .............................................................................................................
297 S.W.3d 768 (Tex. 2009)............................................................................................. 19
Baskin v. Mortgage & Trust, Inc.
837 S.W.2d 743 (Tex. App. – Houston [14 Dist.] 1992, writ denied) ........................ 28, 29
221 S.W.3d 632 (Tex. 2007)....................................................................................... 24, 30
Beverick v. Koch Power
186 S.W.3d 145 (Tex. App. – Houston [1 Dist.] 2005) .............................................. 21, 22
Bich v. Nguyen v. Allstate Ins. Co.
404 S.W.3d 770 (Tex. App. – Dallas 2013)...................................................................... 38
48 S.W.3d 749 (Tex. 2001)................................................................................... 19, 22, 23
190 S.W.3d 263 (Tex. App.—Houston [1st Dist.] 2006, no writ) .................................... 37
City of Houston v. Clear Creek Basin Auth.
589 S.W.2d 671 (Tex. 1979)....................................................................................... 14, 15
Clef Constr. v. CCV Holdings LLC
No. 14-13-00569-CV, 2014 WL 4202503 (Tex. App. – Houston [14 Dist.] 2014) ......... 14
Collins v. Allied Pharmacy Management
871 S.W.2d 929 (Tex. App. – Houston [14 Dist.] 1994, no pet.) ..................................... 27
3 S.W.3d 598 (Tex. App. – San Antonio 1999, pet. denied) ............................................ 29
322 S.W. 3d. 901 (Tex. App – Houston [14th Dist.] 2010, .............................................. 32
273 S.W.3d 426 (Tex. App. – Beaumont 2008, pet. denied) ............................................ 33
135 S.W.3d 598 (Tex. 2004)............................................................................................. 38
778 S.W.2d 558 (Tex. App. – Dallas 1989, no writ) ........................................................ 33
62 S.W.3d 795 (Tex. 2001)............................................................................................... 25
Insurance Co. of North Am. v. Morris
981 S.W.2d 667 (Tex. 1998)............................................................................................. 20
98 S.W. 3d 766 (Tex. App. – Fort Worth 2003, pet. denied) ........................................... 36
559 A.2d 339 (Me. 1989) .................................................................................................. 21
Provident Life & Accident Ins. Co. v. Knott
128 S.W.3d 211 (Tex. 2003)....................................................................................... 14, 15
959 S.W.2d 171 (Tex. 1997)............................................................................................. 20
390 S.W.3d 289 (Tex. 2013)............................................................................................. 15
626 S.W.2d 726 (Tex. 1981)............................................................................................. 36
730 S.W.2d 769 (Tex. App. – Dallas 1987)...................................................................... 26
641 S.W.2d 903 (Tex. 1982)....................................................................................... 18, 28
Tex. Bus. & Comm. Code § 27.01................................................................................................ 26
Rule 21 of the Texas Rules of Civil Procedure............................................................................. 37
Texas Rule of Civil Procedure 166a(i) ............................................................................. 28, 29, 35
TRCP 166a(c) ..................................................................................................................... 7, 14, 35
partial summary judgment on their common
law fraud, fraud by concealment or nondisclosure, statutory fraud, promissory fraud, tortious
interference, promissory estoppel, and conversion claims. Plaintiffs have not conclusively
established all of the elements of these claims – indeed, for the reasons pointed out in Quanta’s
December 27, 2013, July 31, 2014, October 17, 2014, and November 14, 2014 summary
judgment filings, Quanta is entitled to summary judgment on all claims against it.
Summary of the Argument
Devaney worked for Quanta for more than eight years as a paid consultant. He used his
company Trident Ventures to bill Quanta each month for his consulting work. Quanta paid each
invoice, which totaled approximately $3 million. Eventually that consultancy ended. When it
did, Devaney submitted a final invoice. Unlike the previous 100 or so invoices, the final one had
something extra – a demand for an $8 million “bonus.”
Quanta had no written or oral agreement entitling plaintiffs to any bonus, much less a
bonus of $8 million. Quanta refused to pay the requested bonus and this suit followed. During
Plaintiffs have now filed seven petitions and eighteen causes of action against Quanta.
The majority of the eighteen claims plaintiffs assert (or have previously asserted) are attempts to
obtain a remedy . They seek to enforce an ever-changing list
of oral and indefinite “promises” for additional compensation that everyone agrees never resulted
in any binding, final agreement between the parties. Importantly, plaintiffs do not assert a claim
for breach of contract. That is because Devaney testified under oath during his deposition that
plaintiffs never had a binding, enforceable contract with Quanta for any compensation other
than what Quanta already paid plaintiffs for the 100 consulting invoices plaintiffs submitted to
Attempting to avoid this complete legal bar to their claims, plaintiffs allege a changing
and never ending series of oral “promises.” In seven petitions, and the various other pleadings
filed in this Court, plaintiffs have changed their story (no less than four times) about the
supposed oral “promises” they now seek to enforce – “oral promises” plaintiffs admit occurred
summary judgment is based almost entirely on their latest
theory, which is that plaintiffs
employment document that plaintiffs allege Quanta’s Board conditionally approved subject to
further review and approval on March 17, 2004. But it is undisputed that Quanta and plaintiffs
never reached agreement on that or any other final, binding employment agreement and that
plaintiffs instead served as outside consultants and submitted consulting invoices for their
services every month for eight years.
Unlike Quanta’s pending motions for summary judgment, which assume that the various
oral promises plaintiffs have alleged are true (despite the overwhelming evidence to the
contrary), plaintiffs’ motion – which seeks to have this Court find as a matter of law that a false
promise or misrepresentation was made – is based on heavily disputed facts. The summary
judgment evidence establishes that Quanta disputes all of the various allegations plaintiffs have
made:
Quanta’s former CEO John Colson testified that plaintiffs were never promised any
additional compensation other than the millions of dollars Quanta paid Devaney pursuant
The Exhibits in this motion were previously introduced into the summary judgment record as Exhibits to the
Affidavit of Matt Behncke in support of Quanta’s December 27, 2013 Motion for Summary Judgment. Quanta
incorporates all of the exhibits to its motions for summary judgment by reference.
to the consulting invoices plaintiffs submitted to Quanta every month for eight years. Ex.
Colson also testified that – contrary to plai did discuss proposed
employment terms, including salary, with Devaney after the Quanta Services’
compensation committee conditionally approved an offer of employment to Devaney on
March 17, 2004, but Devaney preferred to remain an outside consultant at 75:8-
Plaintiffs’ contemporaneous emails sent while they were consulting for Quanta
demonstrate that there was no promise or agreement for any additional compensation and
that plaintiffs to “ ” to receive additional compensation
if they landed a significant transaction for Quanta. Ex. 9 at 2; see also Ex. 10 at 1-2
(Devaney: “Let’s get back to optimism – and have a discussion about a bonus and
performance fee for me when Quan
Viewed in any light (much less the light most favorable to Quanta as required for plaintiffs’
motion for summary judgment), these fact disputes – which plaintiffs completely ignore in their
motion – by themselves require that the Court deny plaintiffs’ motion for summary judgment.
Putting aside the clear fact disputes underlying whether any false promises or
misrepresentations were made, Quanta is entitled to summary judgment on all claims against it –
because plaintiffs’ claims fail even if their allegations were true. It is undisputed – and Devaney
admitted during his deposition – that he never had a binding, formal agreement with Quanta for
any additional compensation. That is a complete bar to any attempt by plaintiffs to enforce any
alleged oral “promise” for additional compensation. As explained in Quanta’s July 31, 2014
motion for summary judgment, Texas law is clear that a part
contracts by enforcing an agreement that never existed through a claim for fraud (or any other
Plaintiffs’ are not entitled to summary judgment on the remaining claims in their motion,
and all of those claims fail as a matter of law:
Plaintiffs’ promissory estoppel claim fails because plaintiffs could not have relied in 2004
and draft employment agreement they allege they only
learned about a decade later in 2014.
Plaintiffs have admitted under oath that they were never promised the “stock, salary,
and bonuses” they now attempt to claim through an and draft
employment agreement.
Even if they could recover for promissory estoppel, plaintiffs would only be entitled
to reliance damages – but it is undi
Quanta on February 28, 2014 on plaintiffs’
tortious interference claim because plaintiffs failed to offer any evidence (or any response
at all) to Quanta’s December 27, 2013 no evidence motion for summary judgment.
Plaintiffs still cannot show entitlement to summary judgment on their tortious
interference claim because plaintiffs have not established (and cannot establish) that
Quanta committed any independent tort.
Plaintiffs’ claim for conversion is a new, unpleaded theory for which plaintiffs are not
entitled to summary judgment:
Plaintiffs cannot establish any of the elements for conversion of the draft employment
document.
Plaintiffs’ new conversion theory is based on a fundamental misunderstanding of the
law – that the draft employment document somehow became Devaney’s
“chattel” when Quanta’s board conditionally approved an offer of employment to
Plaintiffs’ argument relating to their negligence and breach of confidentiality claims does
not even attempt to meet the standard required for plaintiffs to show they are entitled to
summary judgment – instead plaintiffs merely argue that fact disputes preclude Quanta’s
motion for summary judgment on those claims.
Plaintiffs’ motion for summary judgment is nothing more than an attempt to manufacture
a fact dispute and defeat Quanta’s pending motions for summary judgment on all claims against
it. Plaintiffs’ motion should be denied, and the Court should grant Quanta’s motions for
summary judgment.
II.
For more than eight years, plaintiff Patrick Devaney served as an outside consultant for
Quanta Services, Inc., through his company, Trident Ventures. The relationship began in early
2004 when Quanta’s then CEO, John Colson, retained Devaney to assist Quanta with bidding for
work on a project to reconstruct Iraqi power transmission lines, which lasted through March,
For his consulting work in Iraq, Devaney invoiced Quanta at a rate of $1,500 per day.
His invoices identified the “Project” as the “Iraq Proposal” and stated that they were for
“professional services rendered by Patrick Devaney for Quanta Government Solutions.” Ex. 2.
Quanta did not win any work in Iraq, but paid the invoices Devaney prepared and submitted.
Once the work on the Iraq proposal ended, Quanta began to explore a continuing
relationship for Devaney in developing international and government business for Quanta
through QIL and QGS. Ex. 1 at 75:7-80:19. On March 17, 2004, the compensation committee
of Quanta’s Board of Directors gave conditional approval for Colson to make an offer of
employment to Devaney to become a Quanta employee, but made clear that Colson had broad
discretion to take whatever action he deemed necessary. The compensation committee minutes
make clear that any approval Quanta’s officers had to offer employment to Devaney was subject
provals within Quanta:
RESOLVED, that an employment agreement with Patrick Devaney, on
terms substantially similar to those presented to the Committee be, and it hereby
subject to the final review and approval of James Ball, Chairman of
; and
, that the appropriate officers of the Company are
hereby authorized to take such further action as they may deem necessary or
appropriate to effect the intent and accomplish the purposes of the foregoing
resolution.
It is undisputed that Devaney never signed any employment agreement with Quanta. In
fact, Devaney admitted during his deposition that he never had any binding, final agreement with
Quanta for any additional compensation other than the nearly $3 million dollars he received in
consulting fees pursuant to the monthly invoices he sent to Quanta for payment:
Q: Is it your – are you alleging or claiming that a binding final agreement
ever existed between you or Trident and any Quanta entity regarding the new
Q: No.
The parties dispute why Devaney never became a Quanta employee. John Colson
testified during his deposition that he did discuss employment terms with Devaney – including
salary – after raising the issue with the Quanta’s compensation committee but Devaney declined
to become a Quanta employee because he wanted to remain an outside consultant
Q: What prompted you to go the board
A: When our relationship was going to become more permanent.
Q: Exhibit 52 is a copy with redactions in it, but it’s a copy of minutes of the
meeting of the compensation committee of the board of directors of Quanta, and
A: That’s right.
Quanta0062672 is confidential, but plaintiffs made it part of the summary judgment record in their September 26,
2014 motion for partialsummary judgment. Quanta incorporates Exhibit 1.5 to plaintiffs’motion for partial
summary judgment and will bring a copy of Quanta 0062672 to the hearing for in camera inspection.
Q: And page five indicates that you reviewed with the Committee the
proposed terms of employment of Patrick Devaney, who is considered to run
Quanta Government Solutions. What were the terms of the employment that you
A: I don’t recall.
Q: Did you – do you have any recollection of presenting whatever those
terms were to Patrick Devaney?
A: I recall having the discussion with Patrick about becoming an employee
and I’m sure at that time we talked salary and so forth.
Q: . . . Do you have any specific memory of whatever his response was about
the unrecollected employment terms?
A: Yes.
Q: What was that?
A: That he did not want to become an employee.
Q: What did he want to become?
A: He wanted to stay as a consultant.
Plaintiffs’ motion ignores Colson’s sworn testimony and contends – without any citations
to the affidavits, deposition testimony, or summary judgment evidence that TRCP 166a(c)
requires – that Quanta never offered any employment agreement to Devaney and instead “hid” a
draft employment agreement that they claim (again without any evidentiary support) contained
the terms of employment that Quanta’s Board had conditionally approved on March 17, 2004.
But plaintiffs have not presented any competent summary judgment evidence in response to
Colson’s sworn testimony. Instead, they merely allege the following:
Quanta concealed the board ratified compensation agreement that belonged to
Devaney and never provided Devaney the position and benefits that they
represented (and approved) he would have. Devaney was induced to accept
payment for his services as a
Sixth Am. Pet. ¶ 6.
Plaintiffs allege that the terms of employment presented to Quanta’s compensation
committee on March 17, 2004 for conditional approval pending further review are contained in a
draft employment agreement Quanta produced as Quanta0064269 on February 20, 2014. That
document is one of two and otherwise incomplete draft documents that
Quanta produced from its legal department shared drive. It contains a draft employment
agreement for Devaney that called for Devaney to be employed for one year at a base salary of
substantially less than the $1000 per day consulting rate at which plaintiffs invoiced
Quanta for eight years. There is no date, nor is there any signature on the document for either
Quanta or Devaney, and it is undisputed the parties never reached agreement on this or any other
employment agreement.
Plaintiffs’ motion also ignores a second draft employment document found in Quanta’s
legal files, a document that confirms Colson’s testimony that Quanta actually offered Devaney
. Quanta0064281. The second draft employment document is a red-line version of
the first draft employment document. Importantly, the document makes clear the editing red-
lines are “
to the salary and benefits Devaney was to receive (for example, a
Quanta0064269 is confidential, but plaintiffs made it part of the summary judgment record in their September 26,
2014 motion for partialsummary judgment. Quanta incorporates Exhibit 1.8 to plaintiffs’motion for partial
summary judgment and will bring a copy of Quanta 0064269 to the hearing for in camera inspection.
Quanta0064281 is part of the summary judgment record as Exhibit 30 to Quanta’s Reply in Support of its July 31,
2014 Motion for Summary Judgment. Quanta 0064281, but Quanta will bring a copy of Quanta0064281 to the
January 9, 2015 hearing for in camera inspection.
Comments and questions indicating potentially problematic areas in the agreement
An exhibit list of non-Quanta projects that Devaney was permitted to work on
specifically identifying nume
Quanta00064281-0064293. Plaintiffs have not attempted to explain the red-lined version of the
draft employment agreement or Colson’s testimony that he discussed proposed employment
terms with Devaney but Devaney rejected them – they have simply ignored this evidence which
Plaintiffs Submitted 100+ Consulting Invoices to Quanta over Eight Years – and
None Mentioned Any Additional Compensation
The parties agree that neither Devaney nor Trident ever became a Quanta employee. It is
also undisputed that Quanta and Devaney eventually settled on a consulting arrangement under
which Devaney remained an outside consultant and received a daily consulting fee invoiced
every month for eight years along with reimbursement of all his Quanta-related expenses.
In connection with his responsibility to de nd government business,
him as the President of QIL and QGS. Quanta
issued those business cards because Devaney explained that he could not develop business in the
although Devaney carried cards identifying him as President of QIL and QGS, he, as a non-
employee paid consultant, “did not have the authority as a normal president would have because
he was not an employee.” Ex. 1 at 13:17-25.
Quanta timely paid all of plaintiffs’ invoices for eight years, and the consulting
agreement continued without significant incident until Quanta terminated the relationship in
2011. Quanta’s President and CEO Jim O’Neil terminated Devaney’s consulting relationship in
2011, but permitted plaintiffs to continue to submit invoices through April 2012. Ex. 11. On
April 23, 2012, Devaney emailed John Colson and Jim O’Neil about agreeing on a potential
completion bonus:
I thought you might have come to terms with a reasonable “competition bonus”
for the various govt programs
Devaney submitted a final invoice to Quanta on May 8, 2012. That invoice was similar
to his other invoice, except it contained an additional line item for a “Completion bonus” of $8
million:
Quanta did not pay the bonus (but did pay the standard daily rate for the time period
reflected on the invoice) and heard nothing at all from plaintiffs about their claimed $8 million
“completion bonus” until Plaintiffs filed this lawsuit.
Plaintiffs Repeatedly Change Their Story During Litigation
Plaintiffs filed suit on December 31, 2012, nearly nine years after Devaney’s consulting
relationship with Quanta began. That petition asserted a multitude of claims – most of which
arise from their claim that Quanta committed various kinds of fraud by promising Plaintiffs an
ownership interest (through a partnership, joint venture, or otherwise) in Quanta’s international
and government business.
On March 22, 2013, plaintiffs abandoned the $8 million “bonus” claim and instead
alleged that plaintiffs had formed a partnership or joint venture with Quanta for
international and government business, and that plaintiffs were entitled to 50% of the
profits in Quanta’s government and international business. Ex. 23 at 3; Ex. 24.
2013 deposition, Devaney abandoned his
partnership and joint venture claim and instead testified that Quanta “approved”
plaintiffs’ business plan that included an “employee carried interest plan” under which
plaintiffs (and anyone else who worked on Quanta’s government and international
business) would someday be entitled to an share of the profits in Quanta’s
government and international business once Devaney developed an amount
In opposing Quanta’s December 27, 2013 motion for summary judgment, Devaney filed
a rambling, 17-page affidavit in which he explicitly stated that he was not promised
“salary, bonuses and stock benefits” because Quanta did not want to compensate him as
an employee. Devaney Affidavit, Ex. 1 to Plaintiffs’ February 21, 2014 Opposition to
Quanta’s Motion for Summary Judgment.
On October 7, 2014 plaintiffs largely abandoned this “carried interest” profit sharing
claim and now allege that they are entitled to salary, bonuses, and stock benefits through
and draft employment document they allege Quanta’s board
conditionally approved on March 17, 2004, but never delivered to Devaney. See
Sixth Amended Petition.
All of Plaintiffs Legally Deficient Theories Are Subject to Pending Dispositive
Quanta currently has motions for summary judgment or motions to dismiss pending for all of
Quanta’s legal theories.
On December 28, 2013, Quanta filed a motion for summary judgment on all claims
against it.
Plaintiffs also initially claimed in an interrogatory response that they invested $1 million in a joint venture of
partnership for the development of international business with Quanta. Ex. 23 at 3. They served an amended
interrogatory response just before Devaney’s deposition and have since completely abandoned that claim. Ex. 24.
On March 14, 2014, two weeks after the parties argued Quanta’s motion, plaintiffs filed a
Quanta moved for summary judgment on all new claims in Plaintiffs’ Second Amended
Less than two weeks later on September 11, 2014, plaintiffs filed a Third Amended
Petition asserting new three additional causes of action against Quanta – false
imprisonment, intentional infliction of emotional distress, fraudulent concealment, and
Plaintiffs filed Fourth Amended Petition on September 17, 2014.
Quanta moved to dismiss Plaintiffs’ false imprisonment, intentional infliction of
emotional distress, and fraudulent concealment claims on September 26, 2014.
On October 7, 2014 plaintiffs filed a Fifth Amended Petition (the current live pleading)
that dropped their false imprisonment and intentional infliction of emotional distress
claims but added a claim for Statutory Fraud.
On October 17, 2014, Quanta moved to dismiss pl aud claim and filed
a motion for summary judgment on their conversion claim.
Exhibit 32 is a summary chart identifying plaintiffs’ claims and the dispositive motions to
Quanta’s motions for summary judgment and motions to dismiss explain the legal
deficiencies in each of plaintiffs’ causes of action and Quanta incorporates each of these (and all
exhibits) into its opposition to plaintiffs’ motion for summary judgment. The same fact disputes
that prohibit the Court from entering judgment in favor of plaintiffs have nothing to do with
Quanta’s motions because Quanta’s motions assume as true the admissible allegations in
stimony that he was promised additional
compensation (despite the overwhelming evidence to the contrary), but show that Quanta is still
entitled to judgment as a matter of law on plaintiffs’ claims because Texas law prohibits
plaintiffs from enforcing the benefit of an unenforceable bargain.
Objections to Plaintiffs’ Summary Judgment Evidence
The summary judgment evidence conclusively establishes that Quanta is entitled to
summary judgment on all claims against it. Plaintiffs’ response to this summary judgment
evidence is to simply ignore it. Instead of addressing the actual evidence, plaintiffs have filled
their motion for summary judgment chock full of unsupported and demonstrably false factual
allegations that are not summary judgment evidence under the Texas Rules of Civil Procedure.
Appendix A to this motion contains a detailed list of Quanta’s objections to plaintiffs’ summary
judgment evidence.
III.
Plaintiffs moved for partial summary judgment under TRCP 166a(c). Under Rule
166a(c), summary judgment is appropriate if the evidence shows that there is no genuine issue as
to any material fact and the moving party is entitled to judgment as a matter of law.
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-216 (Tex. 2003). “A plaintiff who
moves for summary judgment has the burden to conclusively prove all elements of its claim as a
matter of law.” Clef Constr. v. CCV Holdings LLC, No. 14-13-00569-CV, 2014 WL 4202503
2014) (citing TRCP 166a(c)); City of Houston v. Clear Creek
, 589 S.W.2d 671, 678 (Tex. 1979).
If the plaintiff satisfies its burden of proving all elements of its claim as a matter of law,
“the burden shifts to the defendant to preclude summary judgment by presenting evidence that
raises a genuine issue of material fact.” Id. In resolving plaintiffs’ motion for summary
judgment, the Court must “take as true all evidence favorable to [Quanta], and [] indulge every
y doubts in [Quanta]’s favor.” Provident Life & Accident
Argument
A plaintiff who moves for summary judgment has the burden to conclusively prove all
elements of its claim as a matter of law. TRCP 166a(c); City of Houston, 589 S.W.2d at 678.
Plaintiffs have not even attempted to meet their burden. Instead, the “argument” section of their
motion is a rambling collection of disjointed argument that ignores Quanta’s sworn deposition
testimony, the summary judgment evidence introduced in Quanta’s summary judgment briefing,
and the observation from the Court at the September 5, 2014 summary judgment hearing
acknowledging that the draft employment agreement plaintiffs now seek to enforce was never
executed and Quanta’s approval of a draft employment agreement for Devaney was conditional
and subject to further approval. Plaintiffs’ motion fails to “conclusively prove” all elements of
any of the claims and should therefore be denied on that basis alone. See State v. $90,235
S.W.3d 289, 292 (Tex. 2013) (stating that summary judgment is improper if the movant failed to
conclusively establish all elements of a claim or defense)
Even assuming that plaintiffs’ uncited and
true (contrary to plaintiffs’ burden on summary judgment), plaintiffs still would not be entitled to
summary judgment as a matter of law because they cannot enforce any of the alleged decade-old
promises that form the basis of their claims.
Plaintiffs Are Not Entitled to Summary Judgment on Their Fraud-Based Claims
Plaintiffs are not entitled to summary judgment on any of their common-law fraud, fraud
by concealment or nondisclosure, or promissory fraud claims for four separate reasons: (1)
genuine issues of material fact exist as to whether Quanta “hid” from plaintiffs the fact that
Quanta’s Board had conditionally approved an offer of employment to Devaney; (2) even if there
were no fact disputes, plaintiffs stillwould not be entitled to summary judgment for any fraud
claim based on the draft employment agreement because the agreement is not an enforceable
contract and Quanta had no duty to disclose what its board was willing to pay plaintiffs; (3)
Devaney’s only remedy – his desire to enforce the unsigned and unapproved draft employment
document – is plainly prohibited by Texas law, and (4) plaintiffs cannot enforce any of the
various oral promises they allege.
Fact issues regarding whether a misrepresentation was made preclude summary
judgment on plaintiffs’ fraud a
Plaintiffs’ motion for summary judgment on their fraud claims center on the Quanta
board’s conditional approval of an offer of employment for Devaney. Here is what plaintiffs
Here, when Quanta’s officers failed to deliver (Ex. 1.11 at 18-19; and at 21), or
failed to timely deliver (Ex. 1.8 at 30), the Board-approved ratified employment
contract with specific and definite terms their collective actions amount to active
deception of the Plaintiff. Instead, they induced Plaintiff to deliver to Quanta a
valuable benefit of establishing its international and government business for
substantially different terms (Ex. 1.11 at 30-31) than the Quanta Board agreed too
], for whatever reason the Board had. The Board is hierarchically superior to
Motion at 28. The Court cannot grant summary judgment on any of plaintiffs’ fraud-based
claims because the entire premise of plaintiffs’ motion – that Quanta “failed to deliver” or “failed
to timely deliver” an offer of employment to Devaney is a highly disputed fact
In fact, the only competent summary judgment evidence regarding the draft employment
document comes from Quanta’s CEO, John Colson, who said that he did discuss employment
and salary with Devaney after he sought board approval to hire Devaney, but Devaney did not
want to become a Quanta employee:
Q: Did you – do you have any recollection of presenting whatever those
terms were to Patrick Devaney?
A: I recall having the discussion with Patrick about becoming an employee
and I’m sure at that time we talked salary and so forth.
Q: . . . Do you have any specific memory of w
Preview
PATRICK O. DEVANEY, II and HARRIS COUNTY, TEXAS QUANTA SERVICES, INC.; QUANTA GOVERNMENT SOLUTIONS, INC.; QUANTA GOVERNMENT SERVICES, rd INC.; QUANTA INTERNATIONAL JUDICIAL DISTRICT LIMITED; and JOHN R. COLSON tial Summary Judgment Summary of the Argument........................................................................................................ Factual Background ............................................................................................................ Devaney Elects to Remain an Outside Consultant for Quanta ................................5 Plaintiffs Submitted 100+ Consulting Invoices to Quanta over Eight Years – and None Mentioned Any Additional Compensation ................................9 Plaintiffs Repeatedly Change Their Story During Litigation ................................11 All of Plaintiffs Legally Deficient Theories Are Subject to Pending Dispositive Motions ...............................................................................................12 mmary Judgment Evidence ........................................14 Legal Standard ................................................................................................................ Argument ...................................................................................................................... Plaintiffs Are Not Entitled to Summary Judgment on Their Fraud- Based Claims .........................................................................................................15 Fact issues regarding whether a misrepresentation was made preclude summary judgment on pl nondisclosure claims. .................................................................................16 Plaintiffs’ have no claim fo employment document regardless of any fact disputes. ............................18 Plaintiffs’ only remedy is prohibited by Texas law. ..................................22 Plaintiffs are not entitled to summary judgment on their promissory fraud claim because they cannot enforce any of their other alleged promises as a matter of law..........................................25 Plaintiffs Are Not Entitled to Summary Judgment on Their Statutory Fraud Claim ...........................................................................................................26 ry Judgment for Quanta on With Business Relations Claim..........................28 Plaintiffs’ Are Not Entitled to Summary Judgment on their Promissory Estoppel Claim .......................................................................................................31 Plaintiffs Are Not Entitled to Summary Judgment on Their Conversion Claim. .....................................................................................................................34 Plaintiffs Are Not Entitled to Summary Judgment on Negligence and Breach of Confidentiality. ......................................................................................35 Conclusion .................................................................................................................... 898 S.W.2d 269 (Tex. 1995).................................................................................................... 989 S.W.2d at 276 ............................................................................................................. 297 S.W.3d 768 (Tex. 2009)............................................................................................. 19 Baskin v. Mortgage & Trust, Inc. 837 S.W.2d 743 (Tex. App. – Houston [14 Dist.] 1992, writ denied) ........................ 28, 29 221 S.W.3d 632 (Tex. 2007)....................................................................................... 24, 30 Beverick v. Koch Power 186 S.W.3d 145 (Tex. App. – Houston [1 Dist.] 2005) .............................................. 21, 22 Bich v. Nguyen v. Allstate Ins. Co. 404 S.W.3d 770 (Tex. App. – Dallas 2013)...................................................................... 38 48 S.W.3d 749 (Tex. 2001)................................................................................... 19, 22, 23 190 S.W.3d 263 (Tex. App.—Houston [1st Dist.] 2006, no writ) .................................... 37 City of Houston v. Clear Creek Basin Auth. 589 S.W.2d 671 (Tex. 1979)....................................................................................... 14, 15 Clef Constr. v. CCV Holdings LLC No. 14-13-00569-CV, 2014 WL 4202503 (Tex. App. – Houston [14 Dist.] 2014) ......... 14 Collins v. Allied Pharmacy Management 871 S.W.2d 929 (Tex. App. – Houston [14 Dist.] 1994, no pet.) ..................................... 27 3 S.W.3d 598 (Tex. App. – San Antonio 1999, pet. denied) ............................................ 29 322 S.W. 3d. 901 (Tex. App – Houston [14th Dist.] 2010, .............................................. 32 273 S.W.3d 426 (Tex. App. – Beaumont 2008, pet. denied) ............................................ 33 135 S.W.3d 598 (Tex. 2004)............................................................................................. 38 778 S.W.2d 558 (Tex. App. – Dallas 1989, no writ) ........................................................ 33 62 S.W.3d 795 (Tex. 2001)............................................................................................... 25 Insurance Co. of North Am. v. Morris 981 S.W.2d 667 (Tex. 1998)............................................................................................. 20 98 S.W. 3d 766 (Tex. App. – Fort Worth 2003, pet. denied) ........................................... 36 559 A.2d 339 (Me. 1989) .................................................................................................. 21 Provident Life & Accident Ins. Co. v. Knott 128 S.W.3d 211 (Tex. 2003)....................................................................................... 14, 15 959 S.W.2d 171 (Tex. 1997)............................................................................................. 20 390 S.W.3d 289 (Tex. 2013)............................................................................................. 15 626 S.W.2d 726 (Tex. 1981)............................................................................................. 36 730 S.W.2d 769 (Tex. App. – Dallas 1987)...................................................................... 26 641 S.W.2d 903 (Tex. 1982)....................................................................................... 18, 28 Tex. Bus. & Comm. Code § 27.01................................................................................................ 26 Rule 21 of the Texas Rules of Civil Procedure............................................................................. 37 Texas Rule of Civil Procedure 166a(i) ............................................................................. 28, 29, 35 TRCP 166a(c) ..................................................................................................................... 7, 14, 35 partial summary judgment on their common law fraud, fraud by concealment or nondisclosure, statutory fraud, promissory fraud, tortious interference, promissory estoppel, and conversion claims. Plaintiffs have not conclusively established all of the elements of these claims – indeed, for the reasons pointed out in Quanta’s December 27, 2013, July 31, 2014, October 17, 2014, and November 14, 2014 summary judgment filings, Quanta is entitled to summary judgment on all claims against it. Summary of the Argument Devaney worked for Quanta for more than eight years as a paid consultant. He used his company Trident Ventures to bill Quanta each month for his consulting work. Quanta paid each invoice, which totaled approximately $3 million. Eventually that consultancy ended. When it did, Devaney submitted a final invoice. Unlike the previous 100 or so invoices, the final one had something extra – a demand for an $8 million “bonus.” Quanta had no written or oral agreement entitling plaintiffs to any bonus, much less a bonus of $8 million. Quanta refused to pay the requested bonus and this suit followed. During Plaintiffs have now filed seven petitions and eighteen causes of action against Quanta. The majority of the eighteen claims plaintiffs assert (or have previously asserted) are attempts to obtain a remedy . They seek to enforce an ever-changing list of oral and indefinite “promises” for additional compensation that everyone agrees never resulted in any binding, final agreement between the parties. Importantly, plaintiffs do not assert a claim for breach of contract. That is because Devaney testified under oath during his deposition that plaintiffs never had a binding, enforceable contract with Quanta for any compensation other than what Quanta already paid plaintiffs for the 100 consulting invoices plaintiffs submitted to Attempting to avoid this complete legal bar to their claims, plaintiffs allege a changing and never ending series of oral “promises.” In seven petitions, and the various other pleadings filed in this Court, plaintiffs have changed their story (no less than four times) about the supposed oral “promises” they now seek to enforce – “oral promises” plaintiffs admit occurred summary judgment is based almost entirely on their latest theory, which is that plaintiffs employment document that plaintiffs allege Quanta’s Board conditionally approved subject to further review and approval on March 17, 2004. But it is undisputed that Quanta and plaintiffs never reached agreement on that or any other final, binding employment agreement and that plaintiffs instead served as outside consultants and submitted consulting invoices for their services every month for eight years. Unlike Quanta’s pending motions for summary judgment, which assume that the various oral promises plaintiffs have alleged are true (despite the overwhelming evidence to the contrary), plaintiffs’ motion – which seeks to have this Court find as a matter of law that a false promise or misrepresentation was made – is based on heavily disputed facts. The summary judgment evidence establishes that Quanta disputes all of the various allegations plaintiffs have made: Quanta’s former CEO John Colson testified that plaintiffs were never promised any additional compensation other than the millions of dollars Quanta paid Devaney pursuant The Exhibits in this motion were previously introduced into the summary judgment record as Exhibits to the Affidavit of Matt Behncke in support of Quanta’s December 27, 2013 Motion for Summary Judgment. Quanta incorporates all of the exhibits to its motions for summary judgment by reference. to the consulting invoices plaintiffs submitted to Quanta every month for eight years. Ex. Colson also testified that – contrary to plai did discuss proposed employment terms, including salary, with Devaney after the Quanta Services’ compensation committee conditionally approved an offer of employment to Devaney on March 17, 2004, but Devaney preferred to remain an outside consultant at 75:8- Plaintiffs’ contemporaneous emails sent while they were consulting for Quanta demonstrate that there was no promise or agreement for any additional compensation and that plaintiffs to “ ” to receive additional compensation if they landed a significant transaction for Quanta. Ex. 9 at 2; see also Ex. 10 at 1-2 (Devaney: “Let’s get back to optimism – and have a discussion about a bonus and performance fee for me when Quan Viewed in any light (much less the light most favorable to Quanta as required for plaintiffs’ motion for summary judgment), these fact disputes – which plaintiffs completely ignore in their motion – by themselves require that the Court deny plaintiffs’ motion for summary judgment. Putting aside the clear fact disputes underlying whether any false promises or misrepresentations were made, Quanta is entitled to summary judgment on all claims against it – because plaintiffs’ claims fail even if their allegations were true. It is undisputed – and Devaney admitted during his deposition – that he never had a binding, formal agreement with Quanta for any additional compensation. That is a complete bar to any attempt by plaintiffs to enforce any alleged oral “promise” for additional compensation. As explained in Quanta’s July 31, 2014 motion for summary judgment, Texas law is clear that a part contracts by enforcing an agreement that never existed through a claim for fraud (or any other Plaintiffs’ are not entitled to summary judgment on the remaining claims in their motion, and all of those claims fail as a matter of law: Plaintiffs’ promissory estoppel claim fails because plaintiffs could not have relied in 2004 and draft employment agreement they allege they only learned about a decade later in 2014. Plaintiffs have admitted under oath that they were never promised the “stock, salary, and bonuses” they now attempt to claim through an and draft employment agreement. Even if they could recover for promissory estoppel, plaintiffs would only be entitled to reliance damages – but it is undi Quanta on February 28, 2014 on plaintiffs’ tortious interference claim because plaintiffs failed to offer any evidence (or any response at all) to Quanta’s December 27, 2013 no evidence motion for summary judgment. Plaintiffs still cannot show entitlement to summary judgment on their tortious interference claim because plaintiffs have not established (and cannot establish) that Quanta committed any independent tort. Plaintiffs’ claim for conversion is a new, unpleaded theory for which plaintiffs are not entitled to summary judgment: Plaintiffs cannot establish any of the elements for conversion of the draft employment document. Plaintiffs’ new conversion theory is based on a fundamental misunderstanding of the law – that the draft employment document somehow became Devaney’s “chattel” when Quanta’s board conditionally approved an offer of employment to Plaintiffs’ argument relating to their negligence and breach of confidentiality claims does not even attempt to meet the standard required for plaintiffs to show they are entitled to summary judgment – instead plaintiffs merely argue that fact disputes preclude Quanta’s motion for summary judgment on those claims. Plaintiffs’ motion for summary judgment is nothing more than an attempt to manufacture a fact dispute and defeat Quanta’s pending motions for summary judgment on all claims against it. Plaintiffs’ motion should be denied, and the Court should grant Quanta’s motions for summary judgment. II. For more than eight years, plaintiff Patrick Devaney served as an outside consultant for Quanta Services, Inc., through his company, Trident Ventures. The relationship began in early 2004 when Quanta’s then CEO, John Colson, retained Devaney to assist Quanta with bidding for work on a project to reconstruct Iraqi power transmission lines, which lasted through March, For his consulting work in Iraq, Devaney invoiced Quanta at a rate of $1,500 per day. His invoices identified the “Project” as the “Iraq Proposal” and stated that they were for “professional services rendered by Patrick Devaney for Quanta Government Solutions.” Ex. 2. Quanta did not win any work in Iraq, but paid the invoices Devaney prepared and submitted. Once the work on the Iraq proposal ended, Quanta began to explore a continuing relationship for Devaney in developing international and government business for Quanta through QIL and QGS. Ex. 1 at 75:7-80:19. On March 17, 2004, the compensation committee of Quanta’s Board of Directors gave conditional approval for Colson to make an offer of employment to Devaney to become a Quanta employee, but made clear that Colson had broad discretion to take whatever action he deemed necessary. The compensation committee minutes make clear that any approval Quanta’s officers had to offer employment to Devaney was subject provals within Quanta: RESOLVED, that an employment agreement with Patrick Devaney, on terms substantially similar to those presented to the Committee be, and it hereby subject to the final review and approval of James Ball, Chairman of ; and , that the appropriate officers of the Company are hereby authorized to take such further action as they may deem necessary or appropriate to effect the intent and accomplish the purposes of the foregoing resolution. It is undisputed that Devaney never signed any employment agreement with Quanta. In fact, Devaney admitted during his deposition that he never had any binding, final agreement with Quanta for any additional compensation other than the nearly $3 million dollars he received in consulting fees pursuant to the monthly invoices he sent to Quanta for payment: Q: Is it your – are you alleging or claiming that a binding final agreement ever existed between you or Trident and any Quanta entity regarding the new Q: No. The parties dispute why Devaney never became a Quanta employee. John Colson testified during his deposition that he did discuss employment terms with Devaney – including salary – after raising the issue with the Quanta’s compensation committee but Devaney declined to become a Quanta employee because he wanted to remain an outside consultant Q: What prompted you to go the board A: When our relationship was going to become more permanent. Q: Exhibit 52 is a copy with redactions in it, but it’s a copy of minutes of the meeting of the compensation committee of the board of directors of Quanta, and A: That’s right. Quanta0062672 is confidential, but plaintiffs made it part of the summary judgment record in their September 26, 2014 motion for partialsummary judgment. Quanta incorporates Exhibit 1.5 to plaintiffs’motion for partial summary judgment and will bring a copy of Quanta 0062672 to the hearing for in camera inspection. Q: And page five indicates that you reviewed with the Committee the proposed terms of employment of Patrick Devaney, who is considered to run Quanta Government Solutions. What were the terms of the employment that you A: I don’t recall. Q: Did you – do you have any recollection of presenting whatever those terms were to Patrick Devaney? A: I recall having the discussion with Patrick about becoming an employee and I’m sure at that time we talked salary and so forth. Q: . . . Do you have any specific memory of whatever his response was about the unrecollected employment terms? A: Yes. Q: What was that? A: That he did not want to become an employee. Q: What did he want to become? A: He wanted to stay as a consultant. Plaintiffs’ motion ignores Colson’s sworn testimony and contends – without any citations to the affidavits, deposition testimony, or summary judgment evidence that TRCP 166a(c) requires – that Quanta never offered any employment agreement to Devaney and instead “hid” a draft employment agreement that they claim (again without any evidentiary support) contained the terms of employment that Quanta’s Board had conditionally approved on March 17, 2004. But plaintiffs have not presented any competent summary judgment evidence in response to Colson’s sworn testimony. Instead, they merely allege the following: Quanta concealed the board ratified compensation agreement that belonged to Devaney and never provided Devaney the position and benefits that they represented (and approved) he would have. Devaney was induced to accept payment for his services as a Sixth Am. Pet. ¶ 6. Plaintiffs allege that the terms of employment presented to Quanta’s compensation committee on March 17, 2004 for conditional approval pending further review are contained in a draft employment agreement Quanta produced as Quanta0064269 on February 20, 2014. That document is one of two and otherwise incomplete draft documents that Quanta produced from its legal department shared drive. It contains a draft employment agreement for Devaney that called for Devaney to be employed for one year at a base salary of substantially less than the $1000 per day consulting rate at which plaintiffs invoiced Quanta for eight years. There is no date, nor is there any signature on the document for either Quanta or Devaney, and it is undisputed the parties never reached agreement on this or any other employment agreement. Plaintiffs’ motion also ignores a second draft employment document found in Quanta’s legal files, a document that confirms Colson’s testimony that Quanta actually offered Devaney . Quanta0064281. The second draft employment document is a red-line version of the first draft employment document. Importantly, the document makes clear the editing red- lines are “ to the salary and benefits Devaney was to receive (for example, a Quanta0064269 is confidential, but plaintiffs made it part of the summary judgment record in their September 26, 2014 motion for partialsummary judgment. Quanta incorporates Exhibit 1.8 to plaintiffs’motion for partial summary judgment and will bring a copy of Quanta 0064269 to the hearing for in camera inspection. Quanta0064281 is part of the summary judgment record as Exhibit 30 to Quanta’s Reply in Support of its July 31, 2014 Motion for Summary Judgment. Quanta 0064281, but Quanta will bring a copy of Quanta0064281 to the January 9, 2015 hearing for in camera inspection. Comments and questions indicating potentially problematic areas in the agreement An exhibit list of non-Quanta projects that Devaney was permitted to work on specifically identifying nume Quanta00064281-0064293. Plaintiffs have not attempted to explain the red-lined version of the draft employment agreement or Colson’s testimony that he discussed proposed employment terms with Devaney but Devaney rejected them – they have simply ignored this evidence which Plaintiffs Submitted 100+ Consulting Invoices to Quanta over Eight Years – and None Mentioned Any Additional Compensation The parties agree that neither Devaney nor Trident ever became a Quanta employee. It is also undisputed that Quanta and Devaney eventually settled on a consulting arrangement under which Devaney remained an outside consultant and received a daily consulting fee invoiced every month for eight years along with reimbursement of all his Quanta-related expenses. In connection with his responsibility to de nd government business, him as the President of QIL and QGS. Quanta issued those business cards because Devaney explained that he could not develop business in the although Devaney carried cards identifying him as President of QIL and QGS, he, as a non- employee paid consultant, “did not have the authority as a normal president would have because he was not an employee.” Ex. 1 at 13:17-25. Quanta timely paid all of plaintiffs’ invoices for eight years, and the consulting agreement continued without significant incident until Quanta terminated the relationship in 2011. Quanta’s President and CEO Jim O’Neil terminated Devaney’s consulting relationship in 2011, but permitted plaintiffs to continue to submit invoices through April 2012. Ex. 11. On April 23, 2012, Devaney emailed John Colson and Jim O’Neil about agreeing on a potential completion bonus: I thought you might have come to terms with a reasonable “competition bonus” for the various govt programs Devaney submitted a final invoice to Quanta on May 8, 2012. That invoice was similar to his other invoice, except it contained an additional line item for a “Completion bonus” of $8 million: Quanta did not pay the bonus (but did pay the standard daily rate for the time period reflected on the invoice) and heard nothing at all from plaintiffs about their claimed $8 million “completion bonus” until Plaintiffs filed this lawsuit. Plaintiffs Repeatedly Change Their Story During Litigation Plaintiffs filed suit on December 31, 2012, nearly nine years after Devaney’s consulting relationship with Quanta began. That petition asserted a multitude of claims – most of which arise from their claim that Quanta committed various kinds of fraud by promising Plaintiffs an ownership interest (through a partnership, joint venture, or otherwise) in Quanta’s international and government business. On March 22, 2013, plaintiffs abandoned the $8 million “bonus” claim and instead alleged that plaintiffs had formed a partnership or joint venture with Quanta for international and government business, and that plaintiffs were entitled to 50% of the profits in Quanta’s government and international business. Ex. 23 at 3; Ex. 24. 2013 deposition, Devaney abandoned his partnership and joint venture claim and instead testified that Quanta “approved” plaintiffs’ business plan that included an “employee carried interest plan” under which plaintiffs (and anyone else who worked on Quanta’s government and international business) would someday be entitled to an share of the profits in Quanta’s government and international business once Devaney developed an amount In opposing Quanta’s December 27, 2013 motion for summary judgment, Devaney filed a rambling, 17-page affidavit in which he explicitly stated that he was not promised “salary, bonuses and stock benefits” because Quanta did not want to compensate him as an employee. Devaney Affidavit, Ex. 1 to Plaintiffs’ February 21, 2014 Opposition to Quanta’s Motion for Summary Judgment. On October 7, 2014 plaintiffs largely abandoned this “carried interest” profit sharing claim and now allege that they are entitled to salary, bonuses, and stock benefits through and draft employment document they allege Quanta’s board conditionally approved on March 17, 2004, but never delivered to Devaney. See Sixth Amended Petition. All of Plaintiffs Legally Deficient Theories Are Subject to Pending Dispositive Quanta currently has motions for summary judgment or motions to dismiss pending for all of Quanta’s legal theories. On December 28, 2013, Quanta filed a motion for summary judgment on all claims against it. Plaintiffs also initially claimed in an interrogatory response that they invested $1 million in a joint venture of partnership for the development of international business with Quanta. Ex. 23 at 3. They served an amended interrogatory response just before Devaney’s deposition and have since completely abandoned that claim. Ex. 24. On March 14, 2014, two weeks after the parties argued Quanta’s motion, plaintiffs filed a Quanta moved for summary judgment on all new claims in Plaintiffs’ Second Amended Less than two weeks later on September 11, 2014, plaintiffs filed a Third Amended Petition asserting new three additional causes of action against Quanta – false imprisonment, intentional infliction of emotional distress, fraudulent concealment, and Plaintiffs filed Fourth Amended Petition on September 17, 2014. Quanta moved to dismiss Plaintiffs’ false imprisonment, intentional infliction of emotional distress, and fraudulent concealment claims on September 26, 2014. On October 7, 2014 plaintiffs filed a Fifth Amended Petition (the current live pleading) that dropped their false imprisonment and intentional infliction of emotional distress claims but added a claim for Statutory Fraud. On October 17, 2014, Quanta moved to dismiss pl aud claim and filed a motion for summary judgment on their conversion claim. Exhibit 32 is a summary chart identifying plaintiffs’ claims and the dispositive motions to Quanta’s motions for summary judgment and motions to dismiss explain the legal deficiencies in each of plaintiffs’ causes of action and Quanta incorporates each of these (and all exhibits) into its opposition to plaintiffs’ motion for summary judgment. The same fact disputes that prohibit the Court from entering judgment in favor of plaintiffs have nothing to do with Quanta’s motions because Quanta’s motions assume as true the admissible allegations in stimony that he was promised additional compensation (despite the overwhelming evidence to the contrary), but show that Quanta is still entitled to judgment as a matter of law on plaintiffs’ claims because Texas law prohibits plaintiffs from enforcing the benefit of an unenforceable bargain. Objections to Plaintiffs’ Summary Judgment Evidence The summary judgment evidence conclusively establishes that Quanta is entitled to summary judgment on all claims against it. Plaintiffs’ response to this summary judgment evidence is to simply ignore it. Instead of addressing the actual evidence, plaintiffs have filled their motion for summary judgment chock full of unsupported and demonstrably false factual allegations that are not summary judgment evidence under the Texas Rules of Civil Procedure. Appendix A to this motion contains a detailed list of Quanta’s objections to plaintiffs’ summary judgment evidence. III. Plaintiffs moved for partial summary judgment under TRCP 166a(c). Under Rule 166a(c), summary judgment is appropriate if the evidence shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-216 (Tex. 2003). “A plaintiff who moves for summary judgment has the burden to conclusively prove all elements of its claim as a matter of law.” Clef Constr. v. CCV Holdings LLC, No. 14-13-00569-CV, 2014 WL 4202503 2014) (citing TRCP 166a(c)); City of Houston v. Clear Creek , 589 S.W.2d 671, 678 (Tex. 1979). If the plaintiff satisfies its burden of proving all elements of its claim as a matter of law, “the burden shifts to the defendant to preclude summary judgment by presenting evidence that raises a genuine issue of material fact.” Id. In resolving plaintiffs’ motion for summary judgment, the Court must “take as true all evidence favorable to [Quanta], and [] indulge every y doubts in [Quanta]’s favor.” Provident Life & Accident Argument A plaintiff who moves for summary judgment has the burden to conclusively prove all elements of its claim as a matter of law. TRCP 166a(c); City of Houston, 589 S.W.2d at 678. Plaintiffs have not even attempted to meet their burden. Instead, the “argument” section of their motion is a rambling collection of disjointed argument that ignores Quanta’s sworn deposition testimony, the summary judgment evidence introduced in Quanta’s summary judgment briefing, and the observation from the Court at the September 5, 2014 summary judgment hearing acknowledging that the draft employment agreement plaintiffs now seek to enforce was never executed and Quanta’s approval of a draft employment agreement for Devaney was conditional and subject to further approval. Plaintiffs’ motion fails to “conclusively prove” all elements of any of the claims and should therefore be denied on that basis alone. See State v. $90,235 S.W.3d 289, 292 (Tex. 2013) (stating that summary judgment is improper if the movant failed to conclusively establish all elements of a claim or defense) Even assuming that plaintiffs’ uncited and true (contrary to plaintiffs’ burden on summary judgment), plaintiffs still would not be entitled to summary judgment as a matter of law because they cannot enforce any of the alleged decade-old promises that form the basis of their claims. Plaintiffs Are Not Entitled to Summary Judgment on Their Fraud-Based Claims Plaintiffs are not entitled to summary judgment on any of their common-law fraud, fraud by concealment or nondisclosure, or promissory fraud claims for four separate reasons: (1) genuine issues of material fact exist as to whether Quanta “hid” from plaintiffs the fact that Quanta’s Board had conditionally approved an offer of employment to Devaney; (2) even if there were no fact disputes, plaintiffs stillwould not be entitled to summary judgment for any fraud claim based on the draft employment agreement because the agreement is not an enforceable contract and Quanta had no duty to disclose what its board was willing to pay plaintiffs; (3) Devaney’s only remedy – his desire to enforce the unsigned and unapproved draft employment document – is plainly prohibited by Texas law, and (4) plaintiffs cannot enforce any of the various oral promises they allege. Fact issues regarding whether a misrepresentation was made preclude summary judgment on plaintiffs’ fraud a Plaintiffs’ motion for summary judgment on their fraud claims center on the Quanta board’s conditional approval of an offer of employment for Devaney. Here is what plaintiffs Here, when Quanta’s officers failed to deliver (Ex. 1.11 at 18-19; and at 21), or failed to timely deliver (Ex. 1.8 at 30), the Board-approved ratified employment contract with specific and definite terms their collective actions amount to active deception of the Plaintiff. Instead, they induced Plaintiff to deliver to Quanta a valuable benefit of establishing its international and government business for substantially different terms (Ex. 1.11 at 30-31) than the Quanta Board agreed too ], for whatever reason the Board had. The Board is hierarchically superior to Motion at 28. The Court cannot grant summary judgment on any of plaintiffs’ fraud-based claims because the entire premise of plaintiffs’ motion – that Quanta “failed to deliver” or “failed to timely deliver” an offer of employment to Devaney is a highly disputed fact In fact, the only competent summary judgment evidence regarding the draft employment document comes from Quanta’s CEO, John Colson, who said that he did discuss employment and salary with Devaney after he sought board approval to hire Devaney, but Devaney did not want to become a Quanta employee: Q: Did you – do you have any recollection of presenting whatever those terms were to Patrick Devaney? A: I recall having the discussion with Patrick about becoming an employee and I’m sure at that time we talked salary and so forth. Q: . . . Do you have any specific memory of w