Date: 02-26-2007

Case Style: Mark III Systems, Inc. v. Sysco Corporation

Case Number: 01-05-00488-CV

Judge: George C. Hanks, Jr.

Court: Texas Court of Appeals, First District on appeal from the 259th District Court, Harris County

Plaintiff's Attorney:

Steven Engelhardt, Houston, Texas and Herbert N. Lackshin, Houston, Texas

Defendant's Attorney:

Brian Weil Zimmerman and Irving C. Stern Zimmerman Axelrad Et al. Houston, Texas

Description:

Appellant, Mark III Systems, Inc. ("Mark III"), appeals the trial court's rendition of summary judgment in favor of appellee, Sysco Corporation ("Sysco"). In 14 issues, Mark III challenges several of the possible grounds for the trial court's rendition of summary judgment against it and argues that issues of fact were raised as to each of its claims against Sysco. In three additional issues, Mark III argues that the trial court erred in (1) denying its objections to Sysco's summary judgment evidence and (2) granting Sysco's objections to Mark III's summary judgment evidence. We affirm. Background

A. The Parties and Their Dealings

In July of 2001, Sysco, a marketer and distributor of food service products in North America, issued a Request for Proposal ("RFP") seeking a vendor for IBM p-series and i-series products and services. The RFP was sent to several companies, including Mark III and Business Integrators, Inc. ("BI").

According to Mark III's statement of facts, at the time Sysco's RFP was issued, Mark III and BI were involved in a business relationship in which the two companies shared information and customers. The relationship between Mark III and BI was formalized in a General Products and Service Agreement ("GPS Agreement"), which established a procedure for recruiting new business by offering a more comprehensive line of products and services through the joint efforts of the two companies. Although Sysco was never made aware of the GPS agreement, Mark III alleges that it was pursuant to this agreement that the two companies submitted a joint proposal in response to Sysco's RFP. In the joint proposal, Mark III offered discount pricing on p-series products and BI offered to supply Sysco with i-series products.

Leslie Powell, CEO of Mark III, testified by deposition that, before selecting its vendors, Sysco asked the two companies to draft a document stating that they would work together as a single service provider. Mark III and BI complied and sent Sysco a letter stating that (1) Powell would serve as a single point of contact for any issues that might arise and (2) both companies understood that, "if there [were] any issues with either company that [could not] be resolved to [Sysco's] satisfaction, it would be grounds for both companies to lose [Sysco's] business." This letter is referred to by Mark III as the "letter agreement" and was signed by Powell and Bob Baugh, President of BI.

Approximately one month after it received the letter agreement, Sysco sent an email informing the companies that had responded to the RFP of its decision to use Mark III as its p-series vendor and BI as its i-series vendor. In relevant part, the email stated:

You should be proud. All the presentations were very informative and enlightening. Each company had their [sic] strengths and areas of expertise. However, after several weeks of discussions, the Sysco Corporation Selection Committee has selected Business Integrators as our IBM business partner for the i-series and Mark III as the IBM business partner for the p-series.

After sending this email, Sysco submitted purchase orders to Mark III and BI for the remainder of 2001 and the majority of 2002. Mark III alleges that Sysco had no complaints about the services it was provided during this time.

According to Powell's affidavit testimony, BI's recruiting division placed Clive Huckins at Sysco as the manager of all p-series and i-series projects involving Mark III and BI in late 2002. After obtaining this position, Huckins terminated several Sysco employees and replaced them with personnel obtained through BI's recruiting division. In February of 2003, he requested a meeting with Mark III. At the meeting, Huckins informed Mark III that he believed Sysco could acquire better pricing terms if it purchased all of its equipment from one IBM provider, namely BI. BI then informed Mark III that it would be handling a project for Sysco as a single IBM business partner, rather than together with Mark III. Subsequent to this solo project, BI began taking on other opportunities at Sysco without Mark III's approval.

Eventually, Mark III was informed that Sysco had elected to purchase all of its computer equipment from BI because BI was able to provide better pricing. According to Powell, BI was able to underbid Mark III only because Huckins provided BI with the pricing and configuration quotes Mark III originally submitted to Sysco. Powell conceded that Sysco had no knowledge of any agreement between Mark III and BI to keep pricing information confidential. Powell further conceded that both Mark III and BI reviewed all of the information, including the pricing discounts, that was provided to Sysco in their joint response to the RFP. Sysco terminated its relationship with Mark III and continued its relationship with BI.

B. The Lawsuit and Summary Judgments

Mark III filed suit against both BI and Sysco. Its initial allegations against Sysco included causes of action for (1) breach of contract, (2) tortious interference with business contracts and relationships, (3) conspiracy to breach BI's fiduciary duty and aiding and abetting BI's breach of fiduciary duty, and (4) spoliation of documents. Sysco responded by filing its first traditional and no-evidence motion for summary judgment, attacking each of the causes of action raised in Mark III's sixth amended petition. Before the trial court ruled on Sysco's first motion for summary judgment, however, Mark III filed its seventh amended petition alleging a new claim that Sysco participated in and assisted with BI's (1) breach of fiduciary duty, (2) breach of duty of good faith and fair dealing, (3) misappropriation of trade secrets, (4) tortious interference, and (5) fraudulent conduct. The trial court granted Sysco's first motion for summary judgment in December of 2004, disposing of only those claims asserted by Mark III in its sixth amended petition.

Mark III then filed an eighth and ninth amended petition, to which Sysco responded with a second, third, and fourth motion for summary judgment. No action was taken by the trial court on Sysco's second motion for summary judgment. The third and fourth motions attacked each of Mark III's remaining claims. The fourth motion prayed for final summary judgment and severance. The trial court granted Sysco's third and fourth motions for summary judgment and severance in April of 2005. Together with the December 2004 order granting Sysco's first motion for summary judgment, the trial court's order finally disposed of all causes of action asserted by Mark III against Sysco. Mark III filed this appeal.

Summary Judgment

A. Standard of Review

Sysco sought both traditional and no-evidence summary judgments in the trial court. The two forms of summary judgment invoke different standards of review. Compare Tex. R. Civ. P. 166a(c), with Tex. R. Civ. P. 166a(i). The movant for a traditional summary judgment must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Clarendon Nat. Ins. Co. v. Thompson, 199 S.W.3d 482, 486 (Tex. App.--Houston [1st Dist.] 2006, no pet.). That is, a defendant movant must conclusively negate at least one essential element of each of the plaintiff's causes of action or, alternatively, must conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Thompson, 199 S.W.3d at 486. Evidence is conclusive only if reasonable persons could not differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). Where the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence sufficient to raise a genuine issue of material fact. Thompson, 199 S.W.3d at 486-87. If the plaintiff does so, summary judgment is precluded. Id.

In contrast, a party moving for a no-evidence summary judgment, must assert only that, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the non-movant has the burden of proof at trial. Tex. R. Civ. P. 166a(i). Summary judgment is precluded if the non-movant then produces more than a scintilla of evidence raising a fact issue on the challenged elements. See id; Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id.

Under both the traditional and no-evidence standards of review, we take as true all evidence favorable to the non-movant, indulging every reasonable inference and resolving any doubts in the non-movant's favor. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (traditional summary judgment); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (no-evidence summary judgment). When, as here, a summary judgment does not specify the grounds on which it was granted, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. Joe, 145 S.W.3d at 157.

B. Breach of Contract

In its first through fourth issues, Mark III argues that summary judgment on its breach of contract claim was improper because the summary judgment evidence raised a fact issue as to whether: (1) there was a valid contract between Mark III and Sysco; (2) the terms of the alleged agreement were sufficiently definite; (3) the agreement was enforceable because it was at-will; and (4) enforcement was barred by the Statute of Frauds. (1) We disagree.

We begin with Mark III's second issue-that its summary judgment evidence raised a fact issue as to whether the terms of the Sysco agreement were sufficiently definite. To be legally binding, a contract must be sufficiently definite in its terms. See T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). "The rules regarding indefiniteness of material terms of a contract are based on the concept that a party cannot accept an offer so as to form a contract unless the terms of that contract are reasonably certain." Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000) (quoting Texas Oil Co. v. Tenneco Inc., 917 S.W.2d 826, 830 (Tex. App.--Houston [14th Dist.] 1994). If an agreement is so indefinite that a court cannot determine the legal obligations and liabilities of the parties, it is not an enforceable agreement. Moore v. Dilworth, 142 Tex. 538, 179 S.W.2d 940, 942 (1944).

Mark III asserts that its joint presentation with BI, the letter agreement, and Sysco's August 2001 email, which confirmed Mark III and BI as its IBM providers, collectively represent its agreement with Sysco. In its briefing, however, Mark III argues that its summary judgment evidence "shows that the terms of the letter agreement were the conditions upon which Sysco agreed to appoint Mark III and BI as its single IBM business partner." In its entirety, the letter states:

Dear Mike,

Thank you for allowing Mark III Systems and Business Integrators the opportunity to make our case for being your IBM business partner. We feel that we add value that no other business partner or IBM direct can provide.

We would like to offer Leslie Powell as a single point of contact for any issues that may arise. If Leslie is not available, Bob Baugh will be her back-up. Our contact information is as follows:

[contact information omitted]

We understand that Mark III Systems and Business Integrators are partnering as a single solution provider. Therefore, we also understand that if there are any issues with either company that cannot be resolved to your satisfaction, it would be grounds for both companies to lose your business.

Thank you again for your time. Please call either of us if you have any questions.

Sincerely,

___________________ ___________________

Leslie Powell Bob Baugh

Mark III emphasizes the statement in the letter that Mark III and BI "[understood] that if there [were] any issues with either company that [could not] be resolved to [Sysco's] satisfaction, it would be grounds for both companies to lose [Sysco's] business." According to Mark III, this language represents a promise on the part of Sysco to fire both companies if it fired either company. Even if we assume Mark III's argument that the letter represents the conditions upon which Sysco agreed to hire Mark III and BI is correct, the text of the letter does not define the legal obligations and liabilities of the parties. In fact, the letter fails to impose any legal obligations or liabilities on Sysco. No signature or acknowledgment by a Sysco representative appears on the document. In addition, the letter lacks any indication of the duration of the agreement, the type or quantity of products to be purchased, the terms of purchase, or any other information that would allow a court to discern the obligations and liabilities of the parties. See T.O. Stanley Boot Co., 847 S.W.2d at 221. Consequently, we hold that the statements in the letter are so indefinite that the letter does not constitute an enforceable agreement. In the absence of an enforceable agreement, the trial court did not err in granting summary judgment on the breach of contract claim. We overrule Mark III's second issue.

Because we dispose of the breach of contract claim by overruling Mark III's second issue, we do not reach his first, third, or fourth issues.

C. Tortious Interference

In its fifth issue, Mark III argues that summary judgment on its tortious interference claim was improper because there was more than a scintilla of evidence that Sysco tortiously interfered with Mark III's business contract and relationship with BI. We disagree.

In its motion for summary judgment, Sysco asserted that (1) there was no evidence that Sysco tortiously interfered with Mark III's contract and relationship with BI and, (2) even if there were some evidence of tortious interference, Sysco's conduct was justified. (2) The elements of tortious interference with a contract are (1) the existence of a contract subject to interference; (2) a willful and intentional act of interference; (3) that was a proximate cause of the plaintiff's damages; and (4) actual damage or loss. Swank v. Sverdlin, 121 S.W.3d 785, 800 (Tex. App--Houston [1st Dist.] 2003, pet. denied). To be subject to liability, 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. See Restatement (Second) of Torts §766 cmt. i; see also Steinmetz & Assocs., Inc. v.Crow, 700 S.W.2d 276, 277-78 (Tex. App.--San Antonio 1985, writ ref'd n.r.e.) (noting that "one element of a cause of action for interference with contract or business relation is that the interferer had actual knowledge of the contract or business relation in question, or knowledge of facts and circumstances that would lead a reasonable person to believe in the existence of the contract or business relationship").

Here, Mark III and BI had formalized their business relationship in the GPS Agreement. Powell testified that Sysco was made aware of the GPS Agreement through a conversation that she had with Roy Defee, a Sysco employee. Specifically, Powell's affidavit states that

Mike Fisher ("Fisher") at Sysco advised Mark III that to be a candidate to get Sysco's business, Mark III needed to be able to provide services for the iSeries. I advised Roy Defee ("Defee") at Sysco that Mark III had an agreement and special relationship with an iSeries IBM business partner known as BI and that Mark III and BI had worked jointly on certain customer projects . . . . I did not provide Sysco with a copy of the GPS Agreement nor discuss the terms of the GPS Agreement or referral fees with Sysco.

This testimony, however, was objected to as hearsay by Sysco, and the trial court properly sustained the objection. (3) As such, it is not considered in our analysis. The only other testimony from Powell regarding Sysco's knowledge of Mark III's contract and relationship with BI is the following testimony from her deposition:

Q. Could you identify that document, please?

A. That's-it's the general products and services agreement we signed-Mark III signed with Business Integrators.

Q. Okay. Was this agreement ever provided to Sysco?

A. No, a copy of it I don't believe was, by- at least by Mark III.

Q. Okay. Or by BI, to your knowledge?

A. To my knowledge, no.

Q. And as part of the RFP process, were you required to provide any agreement that you had- "you," meaning Mark III- with BI to Sysco?

A. No.

Additionally, in its summary judgment evidence, Sysco included the affidavit of Jon Bryan, Chief Executive Officer and Chairman of BI. Bryan's affidavit testimony indicates that:

[i]n terms of the General Products and Services Agreement, neither BI nor Mark III provided this agreement to Sysco. Further, that Agreement, including the terms and conditions, was never discussed with Sysco. The only explanation given to Sysco about the relationship between the two companies was that both Mark III and BI would serve as vendors of IBM Computer Systems, products, and services, and that we would cooperate as needed to assure that Sysco's needs for support would be met.

The deposition testimony of Powell and the affidavit testimony of Bryan indicates that Sysco had no knowledge of the agreement between Mark III and BI. Consequently, no fact issue was raised. Because no fact issue was raised, the trial court did not err in granting summary judgment on Mark III's tortious interference claim. We overrule Mark III's fifth issue.

D. Conspiracy

In its seventh, eighth, and eleventh issues, Mark III argues that the trial court's rendition of summary judgment was improper because there was more than a scintilla of evidence that Sysco conspired with BI to (1) breach BI's fiduciary duty to Mark III, (2) misappropriate Mark III's trade secrets, and (3) commit fraud against Mark III. We disagree.

To prevail on a civil conspiracy theory, Mark III had to establish the following elements: (1) a combination of two or more persons; (2) the objective to be accomplished is an unlawful purpose or a lawful purpose by unlawful means; (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. Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 675 (Tex. 1998). Merely proving a joint "intent to engage in the conduct that resulted in the injury" is not sufficient to establish a cause of action for civil conspiracy. Triplex Commc'ns, Inc. v. Riley, 900 S.W.2d 716, 719 (Tex. 1995). Rather, "civil conspiracy requires specific intent" to agree "to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Id.

Here, breach of fiduciary duty, misappropriation of trade secrets, and the commission of fraud are the unlawful purposes or means that form the basis for Mark III's conspiracy claims. Mark III offers the following as evidence of a conspiracy to carry out these unlawful purposes:

(1) After BI was appointed Sysco's IBM partner for the i-series products, BI's CEO, Bryan, instructed BI's Vice President to take over "the whole account" at Sysco;

(2) Without Mark III's knowledge, BI placed Clive Huckins into a position at Sysco where he was to supervise all of the decisions regarding the vendors of the p-series and i-series products and services;

(3) Huckins fired several Sysco employees under his management and replaced them with personnel obtained through BI's recruiting division;

(4) It was not until after Huckins began working at Sysco that Mark III was informed that there were problems with the services that it was providing Sysco;

(5) Huckins then initiated efforts to replace Mark III as Sysco's p-series provider;

(6) Huckins ignored and refused to respond to Mark III's requests for a meeting to disucss its relationship with Sysco;

(7) Huckins and other Sysco employees provided BI with Mark III's pricing quotes and configurations for the p-series;

(8) Huckins requested that BI provide a price quote on the p-series without Mark III's knowledge; and

(9) Huckins falsely represented that an IBM client representative had recommended that Sysco chose BI for all of its computer needs.

The majority of the conduct complained of here relates to the alleged wrongdoings of BI and Huckins, not of Sysco. The only reference to wrongdoing on the part of Sysco is the allegation that Sysco employees assisted Huckins in providing BI with Mark III's pricing quotes and configurations for p-series products. As Mark III conceded, through the testimony of Powell, Sysco had no knowledge of any agreement between Mark III and BI to keep pricing information confidential. In addition, as part of the joint presentation, BI reviewed all of the information provided by Mark III in response to Sysco's RFP.

None of the evidence set forth above indicates a specific intent on the part of Sysco to engage in an unlawful course of conduct. There is, thus, no evidence that Sysco and BI ever achieved a meeting of the minds. Because a meeting of the minds is an essential element of a cause of action for civil conspiracy, Mark III could not sustain its claims that Sysco conspired to breach BI's fiduciary duty, to misappropriate Mark III's trade secrets, and to commit fraud against Mark III. As such, the trial court did not err in rendering summary judgment on Mark III's conspiracy claims, and we overrule Mark III's seventh, eighth, and eleventh issues.

Because we overrule Mark III's seventh issue-whether Sysco conspired with BI to breach BI's fiduciary duty to Mark III, we need not reach Mark III's sixth issue-whether a fiduciary relationship existed between BI and Mark III.

E. Participating and Assisting

In its ninth issue, Mark III argues that the trial court's rendition of summary judgment, on the grounds that Texas courts do not recognize a cause of action for "participating and assisting," was erroneous. If a cause of action for "participating and assisting" does exist in Texas, Mark III further argues, in its 10th and 12th issues, that summary judgment was improper because there was more than a scintilla of evidence that Sysco participated in and assisted with (1) the misappropriation of Mark III's trade secrets and (2) the commission fraud against Mark III. We disagree.

As authority for its assertion that a cause of action for "participating and assisting" exists in Texas, Mark III directs us to a variety of cases addressing the liability of joint tortfeasors generally. See Gaulding v. Celotex, 772 S.W.2d 66, 69 (Tex. 1989) (concert of action); Mabrey v. Sand Stream, Inc., 124 S.W.3d 302, 317 (Tex. App.--Fort Worth 2003, no pet.) (aiding and abetting breach of fiduciary duty); Toles v. Toles, 113 S.W.3d 899, 912 (Tex. App.--Dallas 2003, no pet.) (aiding and abetting breach of fiduciary duty); Kline v. O'Quinn, 874 S.W.2d 776, 786-87 (Tex. App.--Houston [14th Dist.] 1994, writ denied) (knowing participation in breach of fiduciary duty); A.W. Crisp, Jr. v. S.W. Bancshares Leasing Co., 586 S.W.2d 610, 615 (Tex. App.--Amarillo 1979, writ ref'd n.r.e.) (aiding and abetting fraud). Mark III offers no authority, and we found none, that embraces a cause of action for participating and assisting with the misappropriation of trade secrets and commission of fraud. We decline to adopt such a cause of action today.

Because "participating and assisting" is not a recognized cause of action in the context of misappropriation of trade secrets and fraud, the trial court did not err in granting summary judgment on those claims. We overrule Mark III's ninth, 10th, and 12th issues.

G. Negligent Misrepresentation

In its 13th issue, Mark III argues that summary judgment on its claim of negligent misrepresentation was improper because its summary judgment evidence offered more than a scintilla of evidence to support the claim. Specifically, Mark III argues that a fact issue was raised as to whether Sysco misrepresented its intentions to deal with Mark III and BI as one company and to terminate its relationship with both companies if it decided to terminate its relationship with one ("fire one, fire both"). We disagree.

In its motion for summary judgment, Sysco asserted that there was no evidence of any of the elements of a negligent misrepresentation claim. The elements of a negligent misrepresentation claim are: (1) the defendant made a representation in the course of its business, or in a transaction in which it had a pecuniary interest; (2) the defendant supplied false information for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffered pecuniary loss by justifiably relying on the representation. Fondren Constr. Co., Inc. v. Briarcliff Housing Dev. Assocs., Inc., 196 S.W.3d 210, 218 (Tex. App.--Houston [1st Dist.] 2006, no pet.).

According to Mark III, when it asked Mark III and BI to draft the letter agreement, Sysco represented that it would fire both, if it fired one. As evidence that it relied on the "fire one, fire both" representation, Mark III offers its agreement to act with BI as Sysco's single business provider and points to numerous instances of cooperation between the two companies to meet Sysco's product and services needs. Where Mark III's evidence fails, however, is in demonstrating that these actions were taken in reliance on the "fire one, fire both" representation. Prior to responding to Sysco's RFP, Mark III and BI entered into a formalized agreement to share confidential business information and to combine their efforts to provide more comprehensive services to their customers. Pursuant to this agreement, the two companies responded jointly to Sysco's RFP. The actions taken by Mark III and BI after they were selected as Sysco's business provider are consistent with the formalized agreement and joint presentation. That is, there is no evidence that Mark III undertook these actions in reliance upon the alleged "fire one, fire both" representation. In fact, Jim Sorrells, a Mark III employee who was heavily involved in the process of responding to Sysco's RFP, testified that Mark III would have participated in the RFP process even if Sysco had not requested that the parties agree to the "fire one, fire both" condition.

We hold that there is no evidence that Mark III relied on Sysco's alleged "fire one, fire both" representation. Because reliance is an essential element of Mark III's negligent misrepresentation claim, the trial court did not err in granting summary judgment thereon. We overrule Mark III's 13th issue.

H. Promissory Estoppel

In its 14th issue, Mark III argues that summary judgment on its promissory estoppel claim was improper. We disagree.

In its motion for summary judgment, Sysco asserted that there was no evidence of any of the elements of a promissory estoppel claim. The elements of a promissory estoppel claim are: (1) a promise, (2) foreseeable reliance thereon by the promisor, and (3) substantial reliance by the promisee to its detriment. See Beverick v. Koch Power, Inc., 186 S.W.3d 145, 152 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). As discussed above in relation to Mark III's negligent misrepresentation claim, there is no evidence that Mark III relied on Sysco's alleged "fire one, fire both" representation. Because reliance is also an essential element of Mark III's promissory estoppel claim, we hold that the trial court did not err in granting summary judgment thereon. We overrule Mark III's 14th issue.

Evidentiary Objections

In its 15th through 17th issues, Mark III argues that the trial court erred in (1) denying its objections to Sysco's summary judgment evidence and (2) granting Sysco's objections to its summary judgment evidence. We disagree.

We review a trial court's decision to admit or exclude evidence for an abuse of discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show that the trial court's ruling was in error and that the error (1) probably caused the rendition of an improper judgment or (2) probably prevented the appellant from properly presenting the case to the court of appeals. Tex. R. App. P. 44.1; see Owens-Corning Fiberglas Corp., 972 S.W.2d at 43. Reversible error does not usually occur in connection with rulings on questions of evidence, unless the appellant can demonstrate that the whole case turns on the particular evidence admitted or excluded. Interstate Northborough P'ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).

In the instant appeal, Mark III complains of the trial court's ruling on 48 objections. Nowhere in Mark III's briefing, however, is the harm resulting from these rulings discussed. That is, no effort is made to meet Mark III's burden of showing how the rulings on any one of these 48 objections probably caused the rendition of an improper summary judgment. See Tex. R. App. P. 44.1. We overrule Mark III's 15th, 16th, and 17th issues.

Conclusion

We affirm the order of the trial court granting Sysco's motion for summary judgment.

Outcome: We affirm the order of the trial court granting Sysco's motion for summary judgment.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None