Crain v. Northern, 2026 Tex. Bus. 72 (8th Div.) (mem. op.)

2026 Tex. Bus. 72
THE B USINESS COURT OF TEXAS
EIGHTH DIVISION
MICHAEL D. CRAIN,
Plaintiff,
v.
WILLIAM “WILL” NORTHERN.
Defendant.
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Cause No. 25-BC08A-0014
MEMORANDUM OPINION
¶ 1 	Before the Court is Defendant William Northern (“Northern”)’s Combined
Motion for Traditional and No-Evidence Summary Judgment (“Combined Summary
Judgment Motion”), filed May 29, 2026. Plaintiff Michael D. Crain (“Crain”) untimely
filed his Response to Defendant Will Northern’s Combined Motion for Summary Judgment
(“Response”) on June 27, 2026. Northern did not consent to the late-filed Response, Crain
did not seek leave of court prior to late-filing the Response, nor did Crain otherwise
demonstrate good cause to permit the late-filed Response.1 Northern filed his Objection and
1 If a party moves for no-evidence summary judgment, the nonmovant must file a response sufficient
to raise a genuine issue of material fact. See TEX . R. C IV. P. 166a(h)(3); Ford Motor Co. v. Ridgway, 135 S.W.3d
598, 600 (Tex. 2004). The nonmovant must file its response within 21 days after the no -evidence summary
judgment motion is filed, and may not file a response after the deadline “[e]xcept on leave of court or
FILED IN
BUSINESS COURT OF TEXAS
BEVERLY CRUMLEY, CLERK
ENTERED
10/7/2026

MEMORANDUM OPINION | P AGE 2
Motion to Strike Crain’s Response to Northern’s Combined Motion for Summary Judgment
(“Objection and Motion to Strike”) on June 29, 2026.
¶ 2 	On July 15, 2026, the Court held a hearing on Northern’s Objection and
Motion to Strike and Northern’s Summary Judgment Motion. 	At the hearing, the Court
sustained Northern’s Objection, granted Northern’s Motion to Strike, ruled it would not
consider Crain’s Response in ruling on Northern’s Combined Motion for Summary
Judgment, and granted Northern’s Combined Motion for Summary Judgment. On July 17,
2026, the Court memorialized its rulings and issued its Interlocutory Order on Defendant
William 	Northern’s 	Combined 	Motion 	for 	Traditional 	and 	No-Evidence 	Summary
Judgment and Order for Briefing for Legal Matter to be Decided by the Court under Texas
Rule of Civil Procedure 166(g) (“Interlocutory Order”). 	The Interlocutory Order also
advised that, following entry of a final judgment,2 the Court would issue a written opinion
further detailing its findings and conclusions with respect to Northern’s Combined
Summary Judgment Motion. This is the Court’s Opinion.
I. 	BACKGROUND
¶ 3 	Crain and Northern created Northern Crain Realty, LLC and its subsidiaries,
Northern Crain, LLC and Northern Crain Property Management, LLC (collectively with
Northern Crain Realty, LLC, the “NC Entities”) in 2020. 	Plaintiff’s Second Amended
agreement of the parties[].” 	Tex. R. Civ. P. 166a(d)(1). 	To obtain leave of Court, the nonmovant must
demonstrate good cause for its failure to timely respond; the nonmovant must show its delay (1) was not
intentional or the result of conscious indifference, but the result of accident or mistake, an d (2) allowing the
late response will not cause undue delay or otherwise injure the party seeking summary judgment. 	See
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 688 (Tex. 2002).
2 The Court entered its Final Judgment on August 6, 2026. To correct a scrivener’s error, the Court
subsequently signed a Judgment Nunc Pro Tunc on September 4, 2026.

MEMORANDUM OPINION | P AGE 3
Petition (“Sec. Am. Pet.”) at 4. Crain and Northern’s business and personal relationship
ultimately crumbled after a dispute concerning a “lucrative real estate opportunity
involving the acquisition of Woodhaven Country Club” (hereinafter, the “Woodhaven
Project”). 	In 2025, Crain brought individual and derivative claims on the NC Entities’
behalf against Northern.3 Northern subsequently filed a series of dispositive motions:
• 	Northern’s Motion for Summary Judgment for Specific Performance of
Buy-Sell Purchase, filed October 23, 2025;
• 	Northern’s Motion to Dismiss Plaintiff/Counter-Defendant Michael
Crain’s 	Derivative 	Claims 	for 	Lack 	of 	Standing—Plea 	to 	the
Jurisdiction (“Plea to the Jurisdiction”), filed February 3, 2026; and
• 	Northern’s Motion for Summary Judgment on Counterclaim for
Declaratory Judgment on Corporate Opportunity, filed March 19,
2026.
¶ 4 	The Court ruled on each above-listed motion. 	In his latest summary
judgment motion—Northern’s Combined Summary Judgment Motion—Northern asks the
Court to dispose of all Crain’s remaining claims against him: breach of contract, quantum
meruit, 	conspiracy, 	misappropriation 	of 	confidential 	information, 	fraud/intentional
misrepresentation, negligent misrepresentation, common law fraud, and fraud by non-
disclosure. Combined Summary Judgment Motion (“Combined SJ Mot”) at 2. Northern
argues each claim ought to be dismissed because (1) the claim lacks one or more essential
3 Crain also brought various individual and derivative claims against Tyler Goldthwaite
(“Goldthwaite”) arising out of an alleged attorney-client relationship between Goldthwaite, Crain, and the
NC Entities. The Court found it lacked jurisdiction to hear Crain’s legal malpractice/professional negligence
claims and found Crain’s remaining claims against Goldthwaite were impermissibly fractured malpractice-
based claims. See Order on Defendant Tyler Goldthwaite’s Amended 91a Motion to Dismiss. No claims
against Goldthwaite remain.

MEMORANDUM OPINION | P AGE 4
element, and/or (2) Northern has affirmatively shown no genuine issue of fact exists, and/or
(3) Northern has negated at least one element of each claim. Id. at 3.
II. 	LEGAL STANDARDS
A. No-Evidence Summary Judgment
¶ 5 	A no-evidence summary judgment is akin to a pretrial directed verdict.
Mathis v. Restoration Builders, Inc., 231 S.W.3d 47, 50 (Tex. App.—Houston [14th Dist.]
2007, no pet). Here, the movant represents there is no evidence of one or more essential
elements of the claims for which the nonmovant bears the burden of proof at trial. TEX . R.
CIV . P. 166a(a)(2), (b)(2)(D); Lowe’s Home Ctrs., Inc. v. GSW Mktg., Inc., 293 S.W.3d 283,
287 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). The Court sustains a no-evidence
summary judgment when:
• 	There is a complete absence of evidence of a vital fact;
• 	The court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact;
• 	The evidence offered to prove a vital fact is no more than a mere
scintilla; or
• 	The evidence conclusively establishes the opposite of the vital fact.
Lowe’s, 293 S.W.3d at 287-88 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d
706, 711 (Tex. 1997)); see also TEX . R. CIV . P. 166a(h)(3). 	“Evidence does not exceed a
scintilla if it is so weak as to do no more than create a mere surmise or suspicion” that the
challenged fact exists. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research
Corp., 299 S.W.3d 106, 115 (Tex. 2009) (internal quotations omitted). When determining
if more than a scintilla of evidence has been produced in response to a no-evidence motion

MEMORANDUM OPINION | P AGE 5
for summary judgment, the evidence must be viewed in the light most favorable to the
nonmovant. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex. 2002).
B. Traditional Summary Judgment
¶ 6 	In a traditional motion for summary judgment, the movant bears the burden
to show no genuine issue of material fact exists and entitlement to judgment as a matter of
law. TEX . R. CIV . P. 166a(a)(1); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.
1997). 	To prevail on a traditional summary judgment motion, a defendant must either
conclusively negate at least one essential element of each of the plaintiff’s causes of action
or conclusively establish each element of an affirmative defense. Id. Evidence is conclusive
only if reasonable people could not differ in their conclusions. City of Keller v. Wilson, 168
S.W.3d 802, 816 (Tex. 2005). Once the movant establishes a right to summary judgment
as a matter of law, the burden shifts to the nonmovant to present evidence raising a genuine
issue of material fact. Wal-Mart Stores, Inc. v. Xerox State & Loc. Sols., Inc., 663 S.W.3d
569, 584-85 (Tex. 2023). If a nonmovant files a late response without obtaining leave of
court, the court will not consider the late-filed response. See Benchmark v. Crowder, 919
S.W.2d 657, 663 (Tex. 1996).
III. 	DISCUSSION
¶ 7 	The Court previously dismissed Crain’s derivative claims for lack of standing.
See Memorandum Opinion and Order on Northern’s Plea to the Jurisdiction, dated March
11, 2026. Per the Interlocutory Order, the Court granted Northern’s Combined Summary
Judgment as to Crain’s remaining claims. 	More specifically, the Court concluded that
Northern was entitled to summary judgment on both no-evidence and traditional grounds.

MEMORANDUM OPINION | P AGE 6
The Court first addresses Northern’s no-evidence arguments and, when applicable,
Northern’s traditional arguments.4
A. Northern’s Arguments
a. 	Breach of Contract
¶ 8 	Crain’s breach of contract claim is missing vital fact evidence and must be
granted on no-evidence grounds. To prevail on a breach of contract claim, the plaintiff must
prove: (1) the existence of a valid contract, (2) the plaintiff performed its obligations under
the contract, (3) the defendant breached the contract, and (4) the plaintiff sustained
damages resulting from the breach. Pathfinder Oil & Gas, Inc. v. Great W. Drilling, Ltd.,
574 S.W.3d 882, 890 (Tex. 2019).
¶ 9 	Crain’s remaining breach of contract claim is against Northern, individually.
Northern avers the only contracts at issue are the NC Entities’ corresponding Company
Agreements to which Northern is not an individual party. Combined SJ Mot. at 5. He relies
on Crain’s deposition testimony in which Crain confirms no contracts exist between he and
Northern individually.5 See id. The Court agrees—the only contracts of record are the NC
Entities’ Company Agreements.
¶ 10 	Although Crain contends otherwise, he has not asserted a breach of contract
claim emanating from Northern’s contractual duties owed to him. Instead, Crain’s breach
4 When a party moves for both no-evidence and traditional summary judgments, the court will review
the propriety of the summary judgment under the no-evidence standard first. See First United Pentecostal
Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). But this rule is not absolute, especially if
both motions do not address the same grounds. See, e.g., Dunn v. Clairmont Tyler, LP, 271 S.W.3d 867, 870
(Tex. App.—Tyler 2008, no pet).
5 No third-party beneficiary arguments are before the Court.

MEMORANDUM OPINION | P AGE 7
of contract claim is based on contractual duties Northern owed to the NC Entities. 	Any
remedies for Northern’s alleged breaches would accrue to the NC Entities, not Crain.
Absent the existence of a valid contract between Crain and Northern or an alleged breach
of contractual duties owed directly to Crain, Crain’s breach of contract claim fails.
Northern’s Combined Summary Judgment Motion is granted on this no-evidence ground.
¶ 11 	Crain’s breach of contract claim against Northern also fails as a matter of law.
As discussed above, Northern has conclusively negated an essential element of Crain’s
cause of action: there exists no valid, enforceable contract between Crain and Northern and
there is no alleged breach of contractual duties owed directly to Crain. 	See, e.g., Sci.
Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997) (“[S]ummary judgment for a
defendant is proper only when the defendant negates at least one element of each of the
plaintiff’s theories of recovery.”). Accordingly, Northern’s Combined Summary Judgment
Motion on Crain’s breach of contract claim must also be dismissed on traditional grounds.
b. 	Quantum Meruit
¶ 12 	Crain’s evidence offered to prove his quantum meruit claim does no more than
create a mere surmise or suspicion of its existence and should be dismissed on no-evidence
grounds. 	See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). 	A quantum
meruit claim requires (1) plaintiff provide valuable services or materials to defendant, (2)
defendant accepted the services or materials, (3) under such circumstances as would
reasonably notify defendant of plaintiff’s payment expectation. 	See Speck v. First
Evangelical Lutheran Church of Hou., 235 S.W.3d 811, 815 (Tex. App.—Houston [1st Dist.]
2007, no pet). Quantum meruit is an equitable remedy independent of a contract. Colbert

MEMORANDUM OPINION | P AGE 8
v. Dal. Joint Stock Land Bank, 129 Tex. 235, 102 S.W.2d 1031, 1034 (1937). Generally, a
party may recover under quantum meruit only when there is no express contract covering
the services or materials furnished. 	Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988).
This remedy “is based upon the promise implied by law to pay for beneficial services
rendered and knowingly accepted.” Id.; see Campbell v. Nw. Nat’l Life Ins. Co., 573 S.W.2d
496, 498 (Tex.1978).
¶ 13 	In his Combined Summary Judgment Motion, Northern argues that Crain’s
deposition testimony “show[s] no evidence of any valuable services that [Crain] performed
for or provided to Northern individually to serve as the basis fora [quantum meruit] claim.”
Combined SJ Mot. at 7. 	Northern relies on Crain’s deposition testimony wherein Crain
confirmed his understanding of individual member compensation under the NC Entities’
Company Agreements. 	Id. at 8. 	Crain acknowledged, “no member is to receive
compensation [] for services to the company except if agreed and in writing by unanimous
consent of all the members.” Id.
¶ 14 	Crain has not produced more than a scintilla of evidence to support his
quantum meruit claim. In his Second Amended Petition, Crain pleads he “provided and
rendered a variety of valuable services” to Northern, that Northern, “on many occasions
recognized [Crain’s] services and their value,” and that Northern “had notice that [Crain]
expected to be paid for the services.” Sec. Am. Pet. at 48. These allegations are bare-boned
and unsupported. 	At his deposition, Crain stated he provided the NC Entities valuable
services of “time, [] expertise, [and] connections.” Id. at 8. These services were arguably
services expected of the NC Entities’ members under the Company Agreements—Crain’s

MEMORANDUM OPINION | P AGE 9
services were directed at the NC Entities and were neither directed at Northern nor intended
to benefit Northern. Further, there is no written, unanimous consent of the NC Entities’
members agreeing to receive compensation for any services rendered. 	The evidence
supporting Crain’s claim amounts to no more than a mere scintilla and Northern’s
Combined Summary Judgment must be granted on no-evidence grounds.
c. 	Civil Conspiracy
¶ 15 	Crain’s claim for civil conspiracy lacks all essential elements. 	A civil
conspiracy claim requires: (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) resulting proximate damages. Agar Corp., Inc. v. Electro Circuits Int’l, LLC, 580 S.W.3d
136, 141 (Tex. 2019) (quoting Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.
1983)); Tri v. J.T.T., 162 S.W.3d 552, 556 (Tex. 2005); see also Tilton v. Marshall, 925
S.W.2d 672, 681 (Tex. 1996) (likening a civil conspiracy claim to a “derivative tort”).
Northern argues he is entitled to no-evidence summary judgment and reasons, “[o]nce
again, Crain fails to provide evidence of the requisite elements,” including failure to
“identify the accused co-conspirator,” and “fail[ure] to set out what the alleged overt act
was or that the alleged co-conspirators committed any overt act that was criminal or
tortious.” Combined SJ Mot. at 11.
¶ 16 	Northern’s reasoning is sound—the civil conspiracy allegation in Crain’s
Second Amended Petition is no more than a recitation of the above elements. See Sec. Am.
Pet. at 49. Notably absent is Northern’s alleged co-conspirator. See id. Even assuming,
arguendo, Crain assigned Goldthwaite the co-conspirator role, Goldthwaite is no longer a

MEMORANDUM OPINION | P AGE 10
case party. See supra, n.2. Further, the allegation leaves the Court pondering what Crain
deems the requisite overt act and whether such overt act may be characterized as criminal
or tortious. 	The Court is left with unreasonable inferences from other facts and
circumstances which, alone, do not raise more than a mere suspicion of conspiracy. See Sw.
Bank & Tr. Co. v. Bankers Com. Life Ins. Co., 563 S.W.2d 329, 331 (Tex. App.—Dallas 1978,
writ ref’d). There is no evidence supporting the elements of Crain’s civil conspiracy claim
and Northern’s Combined Summary Judgment must be granted on this no-evidence basis.
¶ 17 	Crain’s civil conspiracy claim also fails as a matter of law. 	In Crain’s
pleading, 	there 	exists no 	identifiable 	co-conspirator, 	no 	proof 	of 	an 	agreement 	or
understanding between conspirators regarding the conspiracy’s object, and no overt act
taken to further the conspiracy. Northern has sustained his burden in showing no genuine
issue of fact exists concerning this claim and his Combined Summary Judgment Motion is
also granted on traditional grounds.
d. 	Misappropriation of Confidential Information
¶ 18 	Crain has not introduced more than a scintilla of evidence supporting his
claim 	Northern 	misappropriated 	Crain’s 	confidential 	information. 	Misappropriation
requires: (1) existence of a trade secret, (2) breach of a confidential relationship or improper
discovery of a trade secret, (3) use of the trade secret, and (4) damages. 	IBP, Inc. v.
Klumpe, 101 S.W.3d 461, 476 (Tex. App.—Amarillo 2001, pet. denied); see Hyde Corp. v.
Huffines, 158 Tex. 566, 314 S.W.2d 763, 777 (1958) (defining “trade secret”); Atl.
Richfield Co. v. Misty Prods., Inc., 820 S.W.2d 414, 421 (Tex. App.—Houston [14th Dist.]

MEMORANDUM OPINION | P AGE 11
1991, writ denied) (trade secret “use” means commercial use where a person seeks to profit
from using the secret).
¶ 19 	Crain 	alleges 	Northern 	“obtained 	non-public 	information 	of 	[the 	NC
Entities], used [the non-public information] without authorization, for [his] personal
benefit and to facilitate the Woodhaven Acquisition.” Sec. Am. Pet. at 49. Northern again
maintains Crain has neither alleged nor provided any evidence that 	personal trade secret
information exists, that Northern wrongfully acquired it, that Northern used it without
authorization, or that this damaged Crain. Combined SJ Mot. at 14.
¶ 20 	As 	a 	threshold 	matter, 	Crain’s 	allegations 	are 	indeed 	impermissibly
derivative. 	The Second Amended Petition does not allege Northern misappropriated
Crain’s confidential information—as pleaded, Crain alleges Northern obtained the NC
Entities’ confidential information. 	Sec. Am. Pet. at 49. 	Crain no longer has derivative
claims on behalf of the NC Entities against Northern. See Memorandum Opinion and Order
on Northern’s Plea to the Jurisdiction, filed March 11, 2026. 	Further, Crain has not
provided 	the 	Court evidence 	delineating 	the 	alleged 	trade 	secret, 	the 	confidential
information, the resulting breach or the causal damage. Simplified Telesys, Inc. v. Live Oak
Telecom, L.L.C., 68 S.W.3d 688, 693 (Tex. App.—Austin, 2000) (plaintiff has burden to
prove existence of trade secret in establishing misappropriation of both trade secret and
confidential information). 	Crain’s misappropriation of confidential information claim is
conclusory and does not rise to the level that would enable reasonable and fair-minded
people to differ in their conclusions. 	Accordingly, Northern’s Combined Summary
Judgment Motion must be granted on no-evidence grounds.

MEMORANDUM OPINION | P AGE 12
¶ 21 	Crain’s misappropriation of confidential information claim also fails as a
matter of law. Again, the crux of Crain’s claim is Northern’s alleged misappropriation of
the NC Entities’ trade secrets, not Crain’s trade secrets. Because Crain’s claim is derivative
on behalf of the NC Entities and because the Court previously dismissed Crain’s derivative
claims, 	no 	genuine 	issue 	of 	material 	fact 	exists 	concerning 	Northern’s 	alleged
misappropriation. Therefore, Northern’s Combined Summary Judgment Motion must also
be granted on traditional grounds.
e. 	Fraud/Intentional Misrepresentation and Common Law Fraud
¶ 22 	Crain’s fraud/intentional misrepresentation claim is missing evidence of vital
facts and accordingly fails. A plaintiff prevails on a fraud/intentional misrepresentation
claim upon showing: (1) the defendant made a material representation that was false , (2)
the defendant knew the representation was false or made it recklessly as a positive assertion
without any knowledge of its truth, (3) the defendant intended to induce the plaintiff to act
upon the representation, and (4) the plaintiff actually and justifiably relied upon the
representation and suffered injury as a result. JPMorgan Chase Bank, N.A. v. Orca Assets
G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018) (internal quotations omitted).
¶ 23 	Crain argues Northern falsely represented the NC Entities’ business and
business prospects, knowing the representations were both material and false and with the
intent Crain rely on his false representations. Sec. Am. Pet. at 45. It is undisputed Northern
did not inform Crain of all his actions and/or intentions concerning the Woodhaven Project.
But Crain has not shown the information Northern relayed to Crain regarding the
Woodhaven Project and/or the alleged competing entities was material to Crain. He also

MEMORANDUM OPINION | P AGE 13
has not shown Northern’s representations concerning the competing companies or the
Woodhaven Project were false. Nor has Crain shown Northern represented allegedly false
information to Crain in an effort to induce Crain to act. 	Rather, Crain argues Northern
sought to keep information concerning competing entities and the Woodhaven Project away
from Crain. 	Lastly, any injuries suffered would be borne by the NC Entities, not Crain
individually. Crain’s claim accordingly fails and Northern’s Combined Summary Judgment
Motion must be granted on this no-evidence basis.
f. 	Negligent Misrepresentation
¶ 24 	Crain’s negligent misrepresentation claim similarly fails for want of vital
facts. A plaintiff prevails on a negligent misrepresentation claim by establishing: (1) the
defendant made a representation in the course of his business, or in a transaction in which
he 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. 	Henry Schein, Inc. v. Stromboe, 102 S.W.3d
675, 686 n. 24 (Tex. 2002) (internal quotations omitted). 	Negligent misrepresentation
requires a showing of both actual and justifiable reliance. Hendrick, LP v. Musgrave Enter.,
Inc., 380 S.W.3d 221, 238 (Tex. App.—Dallas 2012, no pet); Schlumberger Tech. Corp. v.
Swanson, 959 	S.W.2d 	171, 	181 	(Tex. 	1997) 	(holding 	fraud 	by nondisclosure 	is 	a
subcategory of fraud and because reliance is an element of fraud, it is likewise an element
of fraud by nondisclosure).

MEMORANDUM OPINION | P AGE 14
¶ 25 	Crain 	alleges 	Northern 	negligently 	misrepresented 	the 	NC 	Entities’
“business and business prospects,” knowing the representations were false and with the
intention that Crain act on the false representations. Sec. Am. Pet. at 45. Crain insists he
reasonably relied on the representations because he and Northern shared a fiduciary
relationship. Id. Without specifics, Crain avers, “[b]y virtue of the misrepresentations, and
the transactions described [], Defendant[] fraudulently obtained secret profits, which were
unknown to Plaintiff.” 	Id. at 45-46. 	For his part, Northern again argues Crain has not
shown Northern falsely represented any material fact or that Crain relied on a false
representation to his detriment. Combined SJ Mot. at 16.
¶ 26 	There 	is 	(1) 	no 	evidence 	Northern 	made 	any 	actionable 	and 	false
representation to Crain concerning the Woodhaven Project and/or the alleged competing
entities, (2) no evidence Northern failed to exercise reasonable care of competence in
communicating the allegedly false information to Crain, and (3) no evidence Northern’s
allegedly false representations proximately caused Crain injury. 	Crain’s allegation is
therefore unsupported and conclusory. Gonzales v. Shing Wai Brass & Metal Wares Factory,
Ltd., 190 S.W.3d 742, 746 (Tex. App.—San Antonio 2005, no pet) (“A conclusory
statement is one that does not provide the underlying facts to support the conclusion, and
is insufficient to create a question of fact to defeat summary judgment.”). 	Accordingly,
Northern’s Combined Summary Judgment Motion must be granted on no-evidence basis.

MEMORANDUM OPINION | P AGE 15
g. 	Fraud by Nondisclosure
¶ 27 	The record lacks evidence Northern had a duty to disclose, and failed to
disclose, a material fact to Crain concerning the Woodhaven Project and that Crain was
damaged by the nondisclosure. 	Fraud by nondisclosure is a sub-category of fraud.
Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997). To establish fraud
by nondisclosure, plaintiff must prove: (1) the defendant failed to disclose facts to the
plaintiff, (2) the defendant had a duty to disclose those facts, (3) the facts were material,
(4) the defendant knew the plaintiff was ignorant of the facts and the plaintiff did not have
an equal opportunity to discover the facts, (5) the defendant was deliberately silent when it
had a duty to speak, (6) by failing to disclose the facts, the defendant intended to induce the
plaintiff to take some action or refrain from acting, (7) the plaintiff relied on the defendant’s
nondisclosure, and (8) the plaintiff was injured as a result of acting without that knowledge.
Horizon Shipbuilding, Inc. v. Blyn II Holding, LLC, 324 S.W.3d 840, 850 (Tex. App.—
Houston [14th Dist.] 2010, no pet).
¶ 28 	Crain merely recites the above elements in his Second Amended Petition. See
Sec. Am. Pet. at 48. However, in his deposition, Crain testified Northern’s nondisclosure
diminished the NC Entities’ income and damaged his personal ownership in the NC
Entities. 	Combined SJ Mot. at 22-23. 	Northern avers, “Crain admitted that he and
Northern had no personal fiduciary relationship and therefore Northern had no fiduciary
duty to disclose” any Woodhaven Project information. 	Id. at 22. 	As for Crain’s alleged
damage, Northern argues Crain’s testimony “demonstrates no personal damages.” Id. at
23.

MEMORANDUM OPINION | P AGE 16
¶ 29 	The absence of vital facts derails Crain’s claim. First, the Court has already
established Crain and Northern did not enjoy a formal fiduciary relationship. See Court’s
Order on Formal Fiduciary Duty Claim, filed August 6, 2026 (dismissing Crain’s remaining
claims that he and Northern had a formal fiduciary relationship). Crain’s pleading does not
support Northern owed Crain a duty to disclose information concerning the Woodhaven
Project. 	Ins. of N. Am. v. Morris , 981 S.W.2d 667, 674 (Tex. 1998) (no disclosure duty
absent evidence of confidential or fiduciary relationship). 	If any disclosure duty existed,
Northern owed disclosure to the NC Entities, not Crain individually. And, while Northern
did not disclose the Woodhaven Project to Crain, nothing before the Court supports the
nondisclosure was material in nature to Crain. 	MGR, Inc. v. Geico Cas. Co., No. 04-18-
00452-CV, 2019 WL 573968, at *4 (Tex. App. Feb. 13, 2019) (to state a claim for fraud by
nondisclosure, movant must have evidence nonmovant failed to disclose material facts to
movant). Further, as Crain presents, any resulting damage would affect the NC Entities,
not Crain individually. 	Crain has not established Northern had a duty to disclose the
Woodhaven Project to Crain and has not established the nondisclosure was material to
Crain. 	Therefore, Northern’s Combined Summary Judgment Motion on his fraud by
nondisclosure claim must be granted on a no-evidence basis.
¶ 30 	Crain’s fraud by nondisclosure claim also fails as a matter of law. As stated
above, Northern’s only disclosure duty, if any, is to the NC Entities. Simpson v. Simpson &
Hardball Express, LLC, No. 25-BC08A-0012, 2026 WL 2199530, at *12 (Tex. Bus. Ct.
July 29, 2026) (there is no duty to disclose without evidence of a confidential or fiduciary
relationship). 	Thus, any damages resulting from the nondisclosure, belong to the NC

MEMORANDUM OPINION | P AGE 17
Entities, not Crain individually. Northern has sustained his burden in proving no genuine
issue of material fact exists concerning Crain’s fraud by nondisclosure claim. Northern’s
Combined Summary Judgment Motion must also be granted on traditional grounds.
IV. 	CONCLUSION
¶ 31 	Based on the foregoing, the Court concludes Northern is entitled to summary
judgment on both no-evidence and traditional grounds. 	For these reasons, Northern’s
Combined Summary Judgment Motion is GRANTED and all of Crain’s claims against
Northern addressed in the motion are DISMISSED WITH PREJUDICE.
_____________________________
JERRY D. BULLARD,
Judge, Texas Business Court,
Eighth Division
SIGNED: October 7, 2026.

Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Envelope ID: 120906737
Filing Code Description: No Fee Documents
Filing Description: Memorandum Opinion
Status as of 10/7/2026 4:30 PM CST
Associated Case Party: MichaelDCrain
Name
Garette Amis
Carl Cecere
Avery McDaniel
BarNumber
24040425
24050397
24000121
Email
garette@averymcdaniel.com
ccecere@cecerepc.com
avery@averymcdaniel.com
TimestampSubmitted
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
Status
SENT
SENT
SENT
Associated Case Party: William Northern
Name
Randall LSchmidt
Larry Cotten
Jerold H.Mitchell
Elizabeth West
BarNumber
17775330
4861600
24085754
Email
rschmidt@cottenschmidt.com
lcotten@cottenschmidt.com
jmitchell@cottenschmidt.com
ewest@cottenschmidt.com
TimestampSubmitted
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
Status
SENT
SENT
SENT
SENT
Case Contacts
Name
Gregory Blaies
Gregory Gober
Tiffany Costanzo
John WProctor
Pam Carr
Kay Green
Business Court 8A
Trish Barbee
BarNumber
2412650
785916
16347300
Email
gregblaies@bhilaw.com
ggober@bhilaw.com
tcostanzo@brownproctor.com
jproctor@brownproctor.com
pcarr@cottenschmidt.com
kgreen@brownproctor.com
BCDivision8A@txcourts.gov
tbarbee@brownproctor.com
TimestampSubmitted
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
Status
SENT
SENT
SENT
SENT
SENT
SENT
SENT
SENT

Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Envelope ID: 120906737
Filing Code Description: No Fee Documents
Filing Description: Memorandum Opinion
Status as of 10/7/2026 4:30 PM CST
Case Contacts
Trish Barbee
Afton Sands
Emily Hutka
24060555
24143035
tbarbee@brownproctor.com
asands@brownproctor.com
ehutka@bhilaw.com
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
10/7/2026 4:14:02 PM
SENT
SENT
SENT