Vertex Services, LLC v. Oceanwide Houston, Inc., Oceanwide Texas, Inc., and Oceanwide America, Inc.

Opinion issued August 13, 2019

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-18-00125-CV

———————————

VERTEX SERVICES, LLC, Appellant

V.

OCEANWIDE HOUSTON, INC., OCEANWIDE TEXAS, INC.,

AND OCEANWIDE AMERICA, INC., Appellees

On Appeal from the 55th District Court

Harris County, Texas

Trial Court Case No. 2016-30943A

OPINION

In four issues,1 appellant Vertex Services, LLC (Vertex) challenges the trial

court’s rendition of no-evidence and traditional summary judgment in favor of

1

Vertex presents its four issues as follows:

appellees Oceanwide Houston, Inc., Oceanwide Texas, Inc., and Oceanwide

America, Inc. (collectively Oceanwide) on Vertex’s claims of tortious interference

with contract, tortious interference with prospective business relations, common-

law misappropriation, and civil conspiracy.

We affirm.

Background

Vertex is in the business of providing offshore labor and staffing to clients in

the energy industry. After losing contracts with its long-time foreign labor supplier,

Sea Cross Marine PTE (Sea Cross), and its client, oil and gas company TETRA

Applied Technologies, LLC (TETRA),2 Vertex sued competitor Oceanwide.

According to Vertex, Oceanwide “poached” the foreign workers that Vertex had

“located and groomed” for its contract with TETRA and then offered them to

1. The trial court erred when it improperly concluded that “if [Plaintiff’s claim

for] misappropriation fails then all four causes of action against the

Oceanwide defendants fail because it is the underlying tort.”

2. The trial court erred when it failed to recognize that misappropriation is a

valid cause of action and encompasses Vertex’s claims for unfair

competition.

3. Oceanwide’s motion for summary judgment failed to address Vertex’s

claim for tortious interference with its contract with Sea Cross Marine.

4. Vertex presented ample summary judgment evidence to support the

essential elements of all four of its claims against the Oceanwide

Defendants.

2

Vertex also sued TETRA Applied Technologies, LLC and DHD Offshore

Services, LLC, neither of which were parties to the summary-judgment motion

Oceanwide appeals.

2

TETRA, “forc[ing] Vertex out of the loop and adversely effect[ing] its business.”

The dispute arises out of the following events.

Vertex entered into a contract (Vertex-TETRA contract) to supply both

foreign and domestic contract labor to TETRA’s “Hedron” barge from January 1,

2014 until December 31, 2015. To meet its supply obligations, Vertex procured its

foreign labor through Sea Cross pursuant to a June 20, 2010 contract (Vertex-Sea

Cross contract)3 which stated that Sea Cross would provide laborers, who would

remain Sea Cross employees, to Vertex on an as-needed basis. Although the

Vertex-Sea Cross contract stated an end date of October 9, 2010, the parties

continued to operate under it past that date.

On December 1, 2015, TETRA gave Vertex written notice that it was not

extending the Vertex-TETRA contract past the initial term because it needed to

find lower cost options as a result of the downturn in the energy market. The notice

stated that TETRA would contact Vertex “as to how we can continue to partner

with Vertex for our offshore contractor labor needs.” On the same day, Melanie

Fite, TETRA’s strategic sourcing manager of global supply chain and

procurement, emailed Jason Green, Vertex’s vice president and commercial

contract contact, advising him that TETRA had sent its notice not to extend the

3

The contract is between Vertex and Blue Marine Offshore Pte Ltd, which later

changed its named to Sea Cross Marine PTE. In this opinion, we use the name Sea

Cross to include Blue Marine.

3

Vertex-TETRA contract and stating that “we really need to talk about next year

and a way for TETRA to secure a reduction in the cost for the same.”

On December 15, 2015, Fite emailed Green asking him to confirm that

Vertex would be able “to submit a proposal by the end of this week on next year’s

commercial terms, including the discount on rates we spoke about.” She also

forwarded Green a letter from TETRA’s chief operating officer to its suppliers

asking for price reductions to meet the effects of falling oil prices. On that same

day, Jimmy Ho, owner of Sea Cross, sent Vertex a letter stating:

Our company has had an ongoing relationship with Vertex Services

for the past 6 years (DB1 and Hedron) and business relationships with

their owners since 2002. We are happy with the agreement between

the companies and prefer to work with them on the Hedron. As we

were approached by TETRA Technologies (TOS) to switch to another

US company, it is in our best interest to continue our relationship with

Vertex Services. With the assistance of Vertex Services, we believe

the crews provided to TETRA Technologies (TOS) are some of the

best in the world and have been on the Hedron since 2011. We hope

to continue the relationship with Vertex Services and provide

personnel through them to TETRA Technologies.

On December 21, 2015, Green responded by email to Fite’s request for

Vertex’s bid to supply labor to the Hedron for the 2016 season. He attached

Vertex’s proposal and stated that it was “unprofessional” for TETRA “to try to go

behind our backs and cut us out.”

In “February 2016,” Sea Cross terminated the Vertex-Sea Cross contract.

4

On February 2, 2016, TETRA invited Oceanwide to bid on supplying its

foreign labor, thus beginning the negotiations between the two companies for the

provision of foreign labor to work offshore on the Hedron.

In the first four days of February 2016, John Ford, Oceanwide’s president,

and Jimmy Ho, owner of Sea Cross, exchanged numerous text messages, including

the following:

Ford: Any news on who Tetra will utilize as your partner for the

foreign labor? Us?

Ho: My sincere apologies for not being able to give you any

feedback on Tetra before as everything is still on the discussion

stage. We had several meetings while in Houston and emails

and phone conversation with Tetra of how we should go about,

with our contract with them. They propose to us to use GMC

but we told them we prefer [Oceanwide]. Now, I need to get an

agreement from you as with GMC we are able to maintain our

rates with them and they mark up a percentage to Tetra. If you

are agreeable to a mark up between the safety courses

reimburseable by Tetra (they agree) then I can go back to Tetra

and tell them we want to go through [Oceanwide].

....

Ford: We have run the numbers and if this is what [V]ertex agreement

was or similar we can see why there may have been some issues

with their finances.

....

Ho: We have some issue with Vertex which we need to seriously

deal with before we can say yes or no to you.

Ford: Ok. If we can help let me know.

5

On February 8, 2016, James Ireland, Vice-President of Oceanwide America,

Inc., emailed Ho asking, “Who is Sea Cross?” Ho responded, “Sea Cross is one of

our company[ies].” Ho then provided information about its services and made

several statements about its previous provision of labor to TETRA through a “local

agent,” including advising that courses in rigging, firewatch, and fall protection

had been supervised “by local agent and billed at cost + [redacted],” and that

TETRA would require deck foremen and lead electricians.

That same day, Ireland sent Fite an email entitled “Oceanwide proposal to

provide foreign labor to Tetra on board the Hedron.” Among other things, the

email confirmed that “TETRA will be provided with same members of the foreign

labor as was supplied by Sea Cross during 2015,” and relayed the information Ho

had emailed to Ireland regarding Sea Cross’s previous provision of labor to

TETRA (discussing supervision and billing of certain courses and requirements for

certain categories of labor).

On February 22, 2016, TETRA sent Vertex a letter rejecting the bid it had

submitted on December 21, 2015. The letter noted that “as long as the issue of non-

payment of Sea Cross for labor supplied to the Hedron in 2015 continues, further

discussion of commercial terms for 2016 labor remains unlikely.”

On March 4, 2016, TETRA and Oceanwide entered into a labor-supply

contract (TETRA-Oceanwide contract) that required Oceanwide “to ensure that

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TETRA is provided the same members of the foreign labor contingent supplied by

Sea Cross or its affiliates to the Hedron during the 2015 season.”

Vertex filed suit against Oceanwide for “stealing” the labor force it “spent a

considerable amount of money and time” training to fulfill its obligations under the

Oceanwide-TETRA contract. Its petition alleged causes of action against

Oceanwide for (1) tortious interference with the Vertex-Sea Cross contract,

(2) tortious interference with a prospective business relationship with Sea Cross,

(3) misappropriation of Vertex’s “knowledge of the industry, business practices,

and trained employees,” and (4) conspiracy to tortiously interfere with the Vertex-

Sea Cross contract.

Oceanwide filed a combined no-evidence and traditional summary-judgment

motion on all of Vertex’s claims against it. The trial court signed an order granting

Oceanwide’s motion. After stating that “[t]he Motion is granted on all grounds

stated therein,” the order continued:

Plaintiff makes the sensible argument that, as one court put it, the

defendants should not be able to reap where they have not sown. This

“free ride” is couched as a claim for misappropriation. But if

misappropriation fails then all four causes of action against the

Oceanwide defendants fail because it is the underlying tort.

The Court has not found any case which applies the concept of

misappropriation to people. The topic of workers being restricted in

their movement has been extensively treated in its own case law, and

more recently through Business and Commerce Code section 15.50.

Because of this law and policy, the Court observes that had the

workers in question been employed by the Plaintiff they could not

7

have been prevented from going to work for Defendants or anyone

else. Why, then, where the Plaintiff does not employ the workers in

question, could Plaintiff prevent them going to work for Defendants

or anyone else?

This case is not about non-compete contracts. However, preventing

competition and free movement of workers is what the case against

the Oceanwide defendants is about. Plaintiff cannot do indirectly what

it could not do directly.

Vertex appealed.

Summary Judgment

A. Standard of Review

We review a trial court’s summary judgment de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins.

Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take

as true all evidence favorable to the nonmovant, and we indulge every reasonable

inference and resolve any doubts in the nonmovant’s favor. Valence Operating,

164 S.W.3d at 661; Knott, 128 S.W.3d at 215.

A party seeking summary judgment may move for both traditional and no-

evidence summary judgment. Binur v. Jacobo, 135 S.W.3d 646, 650 (Tex. 2004);

see TEX. R. CIV. P. 166a(c), (i). When a party has sought summary judgment on

both grounds, we typically review first the propriety of the summary judgment

under the no-evidence standard. See Merriman v. XTO Energy, Inc., 407 S.W.3d

244, 248 (Tex. 2013); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004).

8

Following an adequate time for discovery, a party may move for summary

judgment on the basis that there is no evidence of one or more essential elements

of a claim on which the adverse party would have the burden of proof at trial. TEX.

R. CIV. P. 166a(i); LMB, Ltd. v. Moreno, 201 S.W.3d 686, 688 (Tex. 2006). To

defeat a no-evidence motion, the nonmovant must produce at least a scintilla of

evidence raising a genuine issue of material fact as to the challenged elements.

Lightning Oil, 520 S.W.3d at 45. “More than a scintilla of evidence exists if the

evidence ‘rises to a level that would enable reasonable and fair-minded people to

differ in their conclusions.’” Essex Crane Rental Corp. v. Carter, 371 S.W.3d 366,

376 (Tex. App.—Houston [1st Dist.] 2012, pet denied) (quoting Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

A defendant moving for traditional summary judgment bears the burden of

proving that no genuine issues of material fact exist on at least one essential

element of the cause of action asserted against it and that it is entitled to judgment

as a matter of law. TEX. R. CIV. P. 166a(c); Lightning Oil Co. v. Anadarko E&P

Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017). If the movant meets its burden, the

burden then shifts to the nonmovant to raise a fact issue precluding summary

judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

When a trial court does not specify the grounds it relied upon in making its

determination, we will affirm a summary-judgment ruling if any of the grounds

9

asserted in the motion are meritorious. Lightning Oil, 520 S.W.3d at 45; Beverick

v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005,

pet. denied).

B. The Summary-Judgment Order

In its first issue, Vertex complains about the trial court’s statement in its

summary-judgment order that “if misappropriation fails then all four causes of

action against the Oceanwide defendants fail because it is the underlying tort.”

According to Vertex, this indicates that the trial court failed to consider each of its

four claims against Oceanwide individually.

The challenged statement does not supplant the trial court’s statement that

Oceanwide’s motion is granted “on all grounds stated therein.” Further,

conclusions of law are not appropriate under summary judgment procedure

because “if summary judgment is proper, there are no facts to find, and the legal

conclusions have already been stated in the motion and response.” Hudson v. City

of Houston, 392 S.W.3d 714, 720 n.6 (Tex. App.—Houston [1st Dist.] 2011, pet.

denied). Thus, to the extent the complained-of statement can be characterized as a

legal conclusion (as opposed to an offer of insight into the trial court’s legal

reasoning), we will not consider it in our review for that additional reason. See IKB

Indus. v. Pro Line Corp., 938 S.W.2d 440, 441 (Tex. 1997) (“[F]indings and

10

conclusions following summary judgment can have no purpose, should not be

filed, and if filed, should be ignored by the trial court . . . .”).

We therefore overrule Vertex’s first issue.

C. Misappropriation

In its second issue and in a portion of its fourth, Vertex challenges the trial

court’s rendition of no-evidence summary judgment on its misappropriation claim.

It argues that it presented evidence of each of the elements of misappropriation,

and that the trial court failed to recognize that misappropriation “covers the type of

unfair business practices Oceanwide engaged in.”

The elements of common law misappropriation (also called unfair

competition) are “(1) the creation of plaintiff’s product through extensive time,

labor, skill, and money; (2) the defendant’s use of that product in competition with

the plaintiff, thereby gaining a special advantage in that competition (i.e., a “free

ride”) because defendant is burdened with little or none of the expense incurred by

the plaintiff; and (3) commercial damage to the plaintiff.” BP Auto., L.P. v. RML

Waxahachie Dodge, L.L.C., 448 S.W.3d 562, 571–72 (Tex. App.—Houston [1st

Dist.] 2014, no pet.); United States Sporting Prods., Inc. v. Johnny Stewart Game

Calls, Inc., 865 S.W.2d 214, 218 (Tex. App.—Waco 1993, writ denied).

In both of its issues challenging the trial court’s rendition of summary

judgment on its misappropriation claim, Vertex argues that its “knowledge of the

11

sourcing and provision of offshore labor to TETRA” qualifies as a “work product”

within the meaning of the first element. According to Vertex, the trial court erred

by “narrowly focusing on the workers as sort of a commodity” because a common-

law misappropriation claim “encompasses the value of one’s labor (i.e., expertise,

plus time, toil and talent).” Specifically, Vertex maintains that the “institutional

knowledge that it developed over time and used to craft this pool of labor,” the

training and certifications that it provided to the labor pool, and its “ability to

navigate the international customs issues involved” constitute its work product.

Recognizing that knowledge, training, and expertise are not typically

considered “products,” Vertex relies on a 1993 Waco Court of Appeals case to

support its argument that such intangibles are capable of misappropriation. In U.S.

Sporting Products, Inc. v. Johnny Stewart Game, 865 S.W.2d 214 (Tex. App.—

Waco 1993, writ denied), a company that sold tape recordings of animal sounds

sued a sporting goods company and its president for tortious misappropriation of

the recordings. The court held that the tape recordings could be misappropriated

because “[a] complainant has a protectable property interest in the product of his

labor, regardless of subject matter, so long as that matter confers on him a

commercial advantage.” Id. at 219.

We do not disagree with the Waco court. But its holding addresses a saleable

product with commercial value and thus does nothing to answer the question

12

whether knowledge, training, and expertise of human labor can be considered

products capable of misappropriation.

In Thomason v. Collins & Aikman Floorcoverings, Inc., No. 04-02-00870-

CV, 2004 WL 624926, at *4 (Tex. App.—San Antonio Mar. 31, 2004, pet. denied)

(mem. op.), a carpet salesperson sued a carpet manufacturer, alleging it had

misappropriated the “fruits of [his] knowledge, work and efforts.” The salesperson

argued that his efforts to convince the State of Texas to adopt particular carpet

specifications that only the carpet manufacturer could fulfill constituted a “work

product” that could be misappropriated. Id. The court of appeals disagreed, holding

that “[a]lthough there is no doubt that [plaintiff]’s time, labor, and skill went into

securing [defendant]’s position on the [contract], these efforts did not result in a

‘work product’ subject to appropriation by a competitor.” Id.

We conclude that Vertex’s knowledge, effort, and expertise are not work

products capable of being misappropriated. Similarly, training and certification are

not distinct saleable work products, because once imparted, they are inseparable

from the laborers themselves. Cf. Wooters v. Unitech Int’l, Inc., 513 S.W.3d 754,

763 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (“An employee . . . may

use his general skills and knowledge obtained through employment to compete

with the former employer.”); Sharma v. Vinmar Int’l, Ltd., 231 S.W.3d 405, 424

(Tex. App.—Houston [14th Dist.] 2007, no pet.) (former employees not barred

13

from using “general knowledge, skill, and experience acquired during

employment” in subsequent employment).

Finally, to the extent Vertex argues that the workforce itself was a product,

the Vertex-Sea Cross contract it relies on to defeat summary judgment belies this

assertion: it states that Sea Cross “agrees to provide laborers, on an as needed

basis,” and that “all employees are employed, paid by, and under the direct

supervision” of Sea Cross. Vertex did not have the right to any particular Sea Cross

employees. See Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d at 727 (“When two

parties are competing for interests to which neither is entitled, then neither can be

said to be more justified or privileged in his pursuit. If the conduct of each is

lawful, neither should be heard to complain that mere unfairness is actionable.”).

All the Vertex-Sea Cross contract entitled Vertex to receive was a supply of

laborers at specified rates. Thus, losing access to the particular Sea Cross

employees it had honed and improved to work on TETRA’s Hedron was Vertex’s

risk to bear. Because Vertex failed to present evidence that it created a product

subject to misappropriation, the trial court did not err by granting Oceanwide’s no-

evidence summary-judgment motion on Vertex’s common-law misappropriation

claim.

We overrule Vertex’s second issue and the portion of its fourth issue

addressing the common-law misappropriation claim.

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D. Tortious Interference with Contract

In its third issue and a portion of its fourth, Vertex argues that the trial court

erred by granting Oceanwide’s motion for summary judgment on its claim for

tortious interference with contract because (1) the motion addressed the wrong

contract, and (2) there is more than a scintilla of evidence to support each of the

elements of its claim.

Vertex argues that Oceanwide’s summary-judgment motion failed to address

the correct contract, and therefore did not assert grounds for summary judgment on

its tortious interference with contract claim. Vertex alleged in its petition that

Oceanwide interfered with its contract with Sea Cross Marine. But in its summary-

judgment motion, Oceanwide mistakenly addressed only Vertex’s contract with

TETRA.4 For example, Oceanwide stated that “Vertex did not have an existing

contract with Tetra that was subject to interference during the relevant time period”

and “Oceanwide did not commit a knowing and intentional act of interference with

Vertex’s contract with Tetra.” Likewise, Oceanwide attached evidence that

pertained only to the Vertex-TETRA contract.

We conclude that Oceanwide’s summary-judgment motion addressed the

wrong contract and therefore did not place Vertex’s claim for tortious interference

4

Oceanwide explains that the Vertex-TETRA contract “was the only contract that

discovery had revealed was in existence and the only contract with which

Oceanwide had any involvement. The loss of the Vertex/TETRA contract was the

only basis upon which Vertex could base a claim for damages.”

15

before the trial court. See Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.

2009) (trial court may not grant summary judgment on grounds not presented in

motion); Narnia Invs., Ltd v. Harvestons Sec., Inc., No. 14-10-00244-CV, 2011

WL 3447611, at *5 (Tex. App.—Houston [14th Dist.] Aug. 9, 2011, no pet. (mem.

op.) (trial court erred in granting summary judgment on claims not addressed in

summary-judgment motion because motion “neither conclusively disprove[d] any

element” “nor challenge[d] the existence of any evidence of any element” of

unmentioned claims); see also Nnah v. 125 Interests, Inc., No. 14-15-00443-CV,

2016 WL 4543685, at *6 (Tex. App.—Houston [1st Dist.] Aug. 31, 2016, pet.

denied) (mem. op.) (two appellees failed to seek summary judgment on appellant’s

breach of contract claim against them where their no-evidence motion challenged

only appellant’s contract with different appellee). Therefore, the trial court erred by

granting appellees more relief than they sought in their summary judgment motion.

Conceding as much, Oceanwide argues that its no-evidence summary-

judgment motion adequately challenged Vertex’s claim with regard to the Vertex-

Sea Cross contract by including statements such as “Vertex has no evidence to

support critical elements of each of the causes of action that it has asserted against

Oceanwide,” and requesting dismissal of “all claims in this matter” against it. But

because these general statements do not identify which elements of Vertex’s claim

for tortious interference with the Vertex-Sea Cross contract Oceanwide is

16

challenging, they do not satisfy the “specificity requirement” for a no-evidence

motion. See TEX. R. CIV. P. 166a(i) (no-evidence summary judgment must state

“elements as to which there is no evidence”); see also Nnah, 2016 WL 4543685, at

*6 (no-evidence motion that did not address breach of specific contract failed to

seek judgment on that contract despite global statements that motion is directed to

“all remaining causes of action” and that nonmovant had no support for “element

numbers 1 through 6”); Guest v. Cochran, 993 S.W.2d 397, 402 (Tex. App.—

Houston [14th Dist.] 1999, no pet.) (holding that sentence in summary-judgment

motion purporting to seek judgment “regarding all claims and causes of action

asserted” in plaintiff’s response to special exceptions and first amended petition

was insufficient to place all claims at issue because motion made “no mention of or

reference to” of certain of plaintiff’s claims). We conclude that because it argued,

presented evidence, and challenged elements of tortious interference only with

regard to the Vertex-TETRA contract, Oceanwide’s motion did not raise grounds

for summary judgment on Vertex’s claim for tortious interference with the Vertex-

Sea Cross Marine contract.

Oceanwide next argues that even if its summary-judgment motion itself did

not succeed in putting Vertex’s claim for tortious interference with the Sea Cross

contract before the court, Vertex’s response and its reply did. A summary-

judgment motion “must stand or fall on the grounds expressly presented in the

17

motion.” McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.

1993). And with specific regard to replies, we have held that when a plaintiff

amends its petition to add claims against a summary-judgment movant, the movant

may not address the new claims by reply but must instead file an amended or

supplemental motion. Blancett v. Lagniappe Ventures, Inc., 177 S.W.3d 584, 592

(Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing McConnell, 858 S.W.2d at

341). The purpose of this rule is to avoid unfairness to the nonmovant by assuring

it sufficient information and time to respond to the summary-judgment motion. See

McConnell, 858 S.W.2d at 340–41 (Rule 166a(c) does not permit summary

judgment movant “to place, or possibly hide, grounds for summary judgment in a

brief filed in support of the motion or in accompanying summary judgment

evidence); Sanders v. Capitol Area Council, 930 S.W.2d 905, 911 (Tex. App.—

Austin 1996, no writ) (“The purpose of the time requirements in [R]ule 166a(c), to

give the nonmovant notice of all claims that may be summarily disposed of and the

specific grounds on which the movant relies, would be severely undercut if a

movant’s ‘reply’ in which new independent grounds were presented could be

treated as an amended motion for summary judgment.”); Sams v. N.L. Indus., Inc.,

735 S.W.2d 486, 488 (Tex. App.—Houston [1st Dist.] 1987, no writ) (granting

summary judgment on grounds added in reply would deprive nonmovant of

hearing and mandatory 21–day notice of hearing required by Rule 166a(c)); cf.

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Sartin v. Beacon Mar., Inc., No. 09-08-00166-CV, 2009 WL 1076815, at *3 (Tex.

App.—Beaumont Apr. 23, 2009, no pet.) (mem. op.) (“A trial court cannot grant

summary judgment on a cause of action addressed only in movant’s reply brief,

which in this case was filed the Friday afternoon before the Monday hearing.”).

Disregarding the parties’ summary-judgment briefing addressing Vertex’s

claim for tortious interference with the Sea Cross contract would serve no purpose

here, where Oceanwide’s reply did not introduce a summary-judgment ground that

Vertex had not had occasion to address. Rather, it replied to the assertion in

Vertex’s response that Oceanwide had misidentified the contract with which it had

allegedly interfered. By its reply, Oceanwide corrected its mistake, specifically

identifying the elements of Vertex’s claim for tortious interference with its contract

with Sea Cross that it contended lacked evidentiary support. See TEX. R. CIV. P.

166a(i) (no-evidence summary judgment must state “elements as to which there is

no evidence”). Importantly, Vertex does not claim to have been prejudiced by this,

and we cannot imagine how it could have been, given that in its response, it not

only argued but also presented evidence in an effort to defeat no-evidence

summary judgment on its pleaded claim of tortious interference with the correct

(Vertex-Sea Cross) contract. See Blakey v. Texas Dep’t of Health, No. 03-02-

00682-CV, 2004 WL 334866, at *6 (Tex. App.—Austin Feb. 12, 2004, no pet.)

(mem. op.) (“If a nonmovant is not prejudiced and deprived of fair notice of the

19

grounds underlying the motion for summary judgment and had a fair opportunity

to respond, we are not convinced that a movant always would be prohibited from

including an additional ground for summary judgment in a reply.”). And there is no

indication from the record that the trial court’s hearing on the motion, response,

and reply took place sooner than 21 days after Oceanwide filed its reply. See id.;

see also Sams, 735 S.W.2d at 488 (granting summary judgment on grounds added

in reply would deprive nonmovant of hearing and mandatory 21–day notice of

hearing required by Rule 166a(c)).

Furthermore, our review of Vertex’s response and Oceanwide’s reply

indicates that both parties directly addressed and fully briefed Oceanwide’s no-

evidence grounds for summary judgment on Vertex’s claim for tortious

interference with its contract with Sea Cross. The trial court’s order granting

summary judgment confirms that it considered the motion “along with the

Response, Reply, summary judgment evidence and oral argument.” For these

reasons, we, too, consider the response and reply in holding that the issue was tried

by consent. See PAS, Inc. v. Engel, 350 S.W.3d 602, 610 (Tex. App.—Houston

[14th Dist.] June 28, 2011, no pet.) (“Trial by consent may be appropriate in some

limited summary judgment contexts.” (citing Roark v. Stallworth Oil & Gas Inc.,

813 S.W.2d 492, 495 (Tex. 1991))); Henny v. JPMorgan Chase Bank, N.A., No.

01-10-00476-CV, 2012 WL 524429, at *4–5 (Tex. App.—Houston [1st Dist.] Feb.

20

16, 2012, no pet.) (mem. op.) (applying concept of “trial by consent” to motion to

dismiss, but holding affirmative defenses not addressed in motion were not tried by

consent because it was unclear that they “were fully discussed and tried by the

parties [in their response and reply] as claimed by [movant]”). Because it was tried

by consent, the trial court did not err in granting summary judgment on Vertex’s

claim for tortious interference with its contract with Sea Cross.

With regard to the portion of its fourth issue dealing with its tortious

interference with contract claim, Vertex argues that it presented evidence to defeat

Oceanwide’s challenge to each of the elements of that claim. See TEX. R. CIV. P.

166a(i). To establish a cause of action for tortious interference with contract, a

plaintiff must prove that (1) a contract subject to interference exists, (2) the

defendant committed a willful and intentional act of interference with the contract,

(3) the act proximately caused injury, and (4) the plaintiff sustained actual damages

or loss. Exxon Mobil Corp. v. Rincones, 520 S.W.3d 572, 588 (Tex. 2017); Better

Bus. Bureau of Metro. Houston, Inc. v. John Moore Servs., Inc., 441 S.W.3d 345,

361 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

Oceanwide argues that there is no evidence that the Vertex-Sea Cross

contract was in effect when Oceanwide is alleged to have interfered with it. We

agree.

21

Vertex presented its June 20, 2010 contract with Sea Cross, along with

affidavit testimony that although the contract stated an end date of October 9,

2010, the parties continued to operate pursuant to its terms “until February 2016

when Sea Cross Marine decided to no longer provide foreign labor for offshore use

to Vertex.” Vertex also presented Sea Cross’s December 15, 2015 letter stating that

Sea Cross “has had an ongoing relationship with Vertex Services for the past 6

years.” But Vertex did not present any evidence to pinpoint the date on which Sea

Cross ended this arrangement. Critically, the only evidence of Oceanwide’s alleged

interference consists of two emails between Oceanwide and Sea Cross, both dated

February 8, 2016. Thus, there is no evidence to show that Vertex and Sea Cross

were still operating under the extended contract, which Vertex claims ended in

“February 2016,” when Oceanwide is alleged to have interfered with it.5

Further, even if Vertex had presented evidence that its contract with Sea

Cross was in force when the alleged interference occurred, there is no evidence

that Oceanwide committed a willful and intentional act of interference with it. See

Rincones, 520 S.W.3d at 588. Indeed, Vertex has not offered any evidence to show

that Oceanwide knew that the Vertex-Sea Cross contract was in effect (if indeed it

was) at the time it was alleged to have interfered with it. Mark III Sys., Inc. v.

5

Further, Vertex’s summary-judgment response attached text messages dated

February 1–4, 2016, between Ho and Oceanwide’s president, John Ford, which

suggest that Oceanwide’s understanding was that the contract between Ho

(through one of his companies) and Vertex was no longer in effect.

22

Sysco Corp., No. 01-05-00488-CV, 2007 WL 529960, at *5 (Tex. App.—Houston

[1st Dist.] Feb. 22, 2007, no pet.) (mem. op.) (“To be subject to liability [for

tortious interference with contract], an actor must have knowledge of the contract

or relation with which he is interfering and of the fact that he is interfering with the

performance of that contract.”). All Vertex’s evidence shows is that Oceanwide

knew that Sea Cross had previously supplied TETRA’s Hedron labor force through

Vertex.

Even if Vertex had presented evidence that the Vertex-Sea Cross contract

was in effect at the pertinent time, and that Oceanwide was aware of it, to survive

no-evidence summary judgment, Vertex would still have to present evidence that

Oceanwide willfully and intentionally interfered with the contract. See Rincones,

520 S.W.3d at 588; see also Ellis v. McKinney, No. 01-00-01098-CV, 2001 WL

1445892, at *5 (Tex. App.—Houston [1st Dist.] Nov. 15, 2001, pet. denied)

(“Merely contracting with someone while knowing of that person’s contract with

another is not the same as inducing a breach.”). Vertex argues that the Oceanwide-

TETRA contract’s requirement that Oceanwide use the same workforce that

Vertex had supplied to TETRA through its contract with Sea Cross is evidence of

Oceanwide’s willful and intentional interference, because “the only way to obtain

the exact same labor force that was used during 2015 was to interfere with the

Vertex and Sea Cross Marine agreement in order to steal the workers then being

23

provided to Vertex.” The fact that the Oceanwide-TETRA contract required

Oceanwide to use the 2015 Hedron workforce does not compel the conclusion that

Oceanwide willfully and intentionally interfered with the Vertex-Sea Cross

contract. Missing is any evidence that Oceanwide was “more than a willing

participant” in any breach Sea Cross may have committed, or in other words, that it

“took an active part in persuading” or “knowingly induced” Sea Cross to breach its

contract with Vertex. See Ferrara v. Nutt, 555 S.W.3d 227, 243 (Tex. App.—

Houston [1st Dist.] 2018, no pet.) (“To establish a willful and intentional act of

interference, there must be evidence that the defendant was more than a willing

participant—the defendant must have knowingly induced one of the contracting

parties to breach its obligations under a contract.” (citation omitted)); see also

Fitness Evolution, L.P. v. Headhunter Fitness, L.L.C., No. 05-13-00506-CV, 2015

WL 6750047, at *23 (Tex. App.—Dallas Nov. 4, 2015, no pet.) (mem. op.) (to

survive summary judgment on tortious interference with contract claim,

nonmovant must present “some direct evidence of a willful act of interference”)

(citing Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 927 (Tex. 1993); Rugaart

v. Rodriguez, No. 13-02-00116-CV, 2003 WL 22671571, at *4 (Tex. App.—

Corpus Christi Nov. 13, 2003, no pet.) (mem. op.) (plaintiff must show that

defendant “took an active part in persuading” party to contract to breach).

24

Vertex next argues that the February 8, 2016 email from Jim Ireland of

Oceanwide to Melanie Fite of TETRA indicating that Ireland and Jimmy Ho had

earlier communicated about how the Vertex-Sea Cross contract dealt with certain

issues (supervision and billing for courses the Hedron laborers were required to

complete) shows Oceanwide’s willful and intentional interference. According to

Vertex, this shows that Oceanwide “committed an intentional act of interference

with the contract by contacting Jimmy Ho about breaching it.” We disagree.

First, there is no evidence that Ireland initiated the contact with Ho or sought

the information he relayed. Other of Vertex’s summary-judgment evidence

indicates that the opposite is true: Ho’s email to Ireland earlier that day set forth

the precise information relayed in the Ireland-Fite email at issue, in response to

Ireland’s one-line email asking, “Who is Sea Cross?” Second, the February 8, 2016

email shows only that Oceanwide and Ho had discussed certain aspects of

TETRA’s training and staffing needs, not that Oceanwide “knowingly induced”

Sea Cross (through Ho) to breach the Vertex-Sea Cross contract. See Ferrara, 555

S.W.3d at 243; see also Fluor Enters., Inc. v. Conex Int’l Corp., 273 S.W.3d 426,

443 (Tex. App.—Beaumont 2008, pet. denied) (defendant’s intent must be to effect

breach of the contract).6

6

The early February 2016 text messages between Ho and John Ford attached to

Vertex’s summary-judgment response are inconsistent with Vertex’s assertion that

Oceanwide induced Sea Cross (through Ho) to breach any contractual obligation it

25

Accordingly, we hold that Vertex has not presented evidence that

Oceanwide acted to induce Sea Cross to terminate its contract with Vertex. See

Lightning Oil, 520 S.W.3d at 45 (to survive no-evidence summary-judgment,

nonmovant must produce “at least a scintilla of evidence raising a genuine issue of

material fact as to the challenged elements”).

Finally, with regard to proximate cause, assuming again that the Vertex-Sea

Cross contract was still in effect, Vertex has not presented any evidence that Sea

Cross breached it. Vertex presented Green’s declaration stating that the parties

continued to operate under the contract past its expiration date of October 9, 2010

until February 2016. But Vertex has not offered any evidence or cited any legal

authority to show that Sea Cross did not have the right to terminate the contract

when it did. As the Texas Supreme Court has held, “merely inducing a contract

obligor to do what it has a right to do is not actionable interference.” ACS

Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). In other words,

Vertex has no cause of action against Oceanwide for inducing Sea Cross to do

what it had a right to do. See id.; Schimmel v. McGregor, 438 S.W.3d 847, 861

(Tex. App.—Houston [1st Dist.] 2014, pet. denied); see also Faucette v. Chantos,

may have had to Vertex. For example, the texts indicate that Ho was already in

separate discussions with TETRA when the text exchanges occurred. The texts

also show that Ford merely asked Ho whether he thought TETRA would consider

using Oceanwide as Ho’s (through Sea Cross) partner in supplying labor for 2016,

and that Ho responded that he would tell TETRA he wanted TETRA to use

Oceanwide if Ford would agree to allow Ho to maintain his rates.

26

322 S.W.3d 901, 914 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“[M]erely

inducing one of the parties to exercise his right to terminate contractual relations

after giving the required notice does not necessarily constitute tortious interference

with contract under Texas law.” (quotation omitted)). Any “harm that results only

from lawful competition is not compensable by the interference tort.” Wal-Mart

Stores, Inc. v. Sturges, 52 S.W.3d 711, 727 (Tex. 2001).

No reasonable juror could find that Oceanwide interfered with the Vertex-

Sea Cross contract based upon the record evidence. See Goodyear Tire & Rubber

Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (in reviewing summary judgment,

appellate courts “must consider whether reasonable and fair-minded jurors could

differ in their conclusions in light of all of the evidence presented”). We therefore

hold that Vertex has not presented any evidence that Oceanwide willfully and

intentionally interfered with the Vertex-Sea Cross contract.

We overrule Vertex’s second issue and the portion of its fourth issue

addressing its tortious interference with contract claim.

E. Tortious Interference with Prospective Business Relations

As part of its fourth issue, Vertex argues that the trial court erred in granting

Oceanwide’s motion for summary judgment on its tortious interference with

prospective business relations claim because it presented more than a scintilla of

27

evidence to support the essential elements of that claim.7 Vertex’s only appellate

challenge to the court’s rendition of summary judgment on this claim is that it

presented evidence that Oceanwide tortiously interfered with its prospective

business relations with TETRA. But in its live petition, Vertex only alleges

interference with its prospective business relations with Sea Cross. Likewise,

Oceanwide moved for summary judgment, and the trial court, in rendering

summary judgment on all grounds alleged in Oceanwide’s motion, granted

summary judgment on Vertex’s tortious interference with prospective business

relations claim based only on Vertex’s relations with Sea Cross.

Because Vertex has failed to challenge the only grounds on which the trial

court rendered summary judgment on Vertex’s tortious interference with

prospective business relations claim, we affirm the judgment of the trial court. See

Hernandez v. Kroger Texas L.P., No. 01-15-00836-CV, 2017 WL 1429200, at *2

(Tex. App.—Houston [1st Dist.] Apr. 20, 2017, pet. denied) (mem. op.) (“If

7

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 occurring; (3) the defendant either acted with a conscious desire

to prevent the relationship from occurring or knew the interference was certain or

substantially certain to occur as a result of the conduct; and (4) the plaintiff

suffered actual harm or damages as a result of the defendant’s interference. 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. William M. Mercer, Inc., 213 S.W.3d 469, 475 (Tex. App.—Houston [1st

Dist.] 2006, pet. denied).

28

summary judgment may have been rendered, properly or improperly, on a ground

not challenged, the judgment must be affirmed.”).

We overrule the portion of Vertex’s fourth issue addressing its tortious

interference with prospective business relations claim.

F. Conspiracy

In a portion of its fourth issue, Vertex argues that it produced sufficient

evidence on each of the elements of its civil conspiracy claim to survive

Oceanwide’s no-evidence summary-judgment motion.

The Texas Supreme Court has defined the elements of civil conspiracy as:

“(1) two or more 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.” Agar Corp., Inc. v. Electro Circuits Int’l, LLC,

No. 17-0630, — S.W.3d —, 2019 WL 1495211, at *4 (Tex. Apr. 5, 2019) (quoting

Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983)).

Civil conspiracy is not an independent tort, but a derivative tort that depends

on participation in 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, 2019 WL 1495211, at *3.

29

Vertex argues on appeal that Oceanwide conspired with TETRA to

wrongfully interfere with Vertex’s contract with Sea Cross. Because we have held

that Vertex’s tortious interference with contract claim did not survive summary

judgment, we further hold that its civil conspiracy claim “fails alongside” it. Id.

Conclusion

We affirm the trial court’s summary-judgment order.

Peter Kelly

Justice

Panel consists of Justices Keyes, Kelly, and Goodman.

30