JOHN S. ANDERSON, Justice.
Appellant, Robin Singh Educational Services, Inc., appeals from the granting of a motion for summary judgment in favor of appellee, Test Masters Educational Services, Inc. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant and appellee both offer test preparation courses for various standardized scholastic examinations. Appellant is a California company based in Los Angeles, while appellee is a Texas company based in Houston. Appellee operates as "Test Masters Educational Services" and owns the domain name "www.testmasters.com" and corresponding email addresses. Appellant operates as "Testmasters" and owns the domain names "www.testmasters.net" and "www.testmasters180.com." Appellant and appellee have engaged in extensive litigation over the use of the name
Eventually, appellee moved for summary judgment. In its motion, appellee argued it was entitled to summary judgment because (1) email communications are intangible property incapable of being converted as a matter of law; and (2) receipt of misdirected intangible electronic communications is not conversion of property under Texas law. Following a hearing, the trial court granted appellee's motion without specifying the reason and dismissed appellant's claim. This appeal followed.
In two issues on appeal, appellant asserts the trial court erred when it granted appellee's motion for summary judgment. Initially, appellant contends the trial court erroneously determined that email communications are intangible property incapable of being converted under Texas law. In his second issue, appellant argues that if we conclude emails are intangible property, we should still reverse the summary judgment because the so-called merger exception applies to the misdirected emails.
I. The standard of review.
The movant for summary judgment has the burden to show there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). If there is no genuine issue of material fact, summary judgment should issue as a matter of law. Haase v. Gleaner, 62 S.W.3d 795, 797 (Tex.2001). In addition, summary judgment is proper where a plaintiffs claim is not cognizable under Texas law. See Express One Int'l v. Steinbeck, 53 S.W.3d 895, 898 (Tex.App.-Dallas 2001, no pet.). We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).
II. Does Texas conversion law encompass intangible property?
"The unauthorized and wrongful assumption and exercise of dominion and control over the personal property of another, to the exclusion of or inconsistent with the owner's rights, is in law a conversion." Hunt v. Baldwin, 68 S.W.3d 117, 131 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (quoting Waisath v. Lack's Stores, Inc., 474 S.W.2d 444, 447 (Tex.1971)). The elements of a cause of action for conversion are: (1) the plaintiff owned, had legal possession of, or was entitled to possession of the property; (2) the defendant assumed and exercised dominion and control over the property in an unlawful and unauthorized manner, to the exclusion of and inconsistent with the plaintiffs rights; and (3) the defendant refused plaintiffs demand for return of the property. Id.
Appellant's claim is based solely on the alleged conversion of intangible electronic communications which appellant alleges were mistakenly sent to appellee by potential customers of appellant. However, under Texas law, a tort action for conversion is limited to tangible property. See Express One, 53 S.W.3d at 901 ("Texas law has never recognized a cause of action for conversion of intangible property except
III. Did appellant waive its second issue?
In its second issue, appellant asserts that if we decide emails are intangible personal property, then the so-called "merger exception" should apply to defeat appellee's motion for summary judgment. Under the "merger exception," some courts have held that certain types of intangible property rights can be converted where the underlying intangible right has been merged into a physical document and that document itself has been converted. Pebble Beach Co. v. Tour 18 I, Ltd., 942 F.Supp. 1513, 1569 (S.D.Tex.1996). Under this so-called "merger exception," Texas courts have recognized conversion claims involving the following types of intangible property: lease documents, Prewitt v. Branham, 643 S.W.2d 122, 123 (Tex.1983); confidential customer lists, Deaton v. United Mobile Networks, L.P., 926 S.W.2d 756, 762 (Tex.App.-Texarkana 1996), rev'd in part on other grounds, 939 S.W.2d 146 (Tex.1997); and shares of stock, Watts v. Miles, 597 S.W.2d 386, 387-88 (Tex.Civ. App.-San Antonio 1980, no writ).
In response to this issue, appellee asserts appellant waived this argument on appeal because it was not presented in appellant's summary judgment response. To preserve an argument against the granting of a motion for summary judgment for appellate review, the non-movant must expressly present that argument to the trial court within its written response to the motion. Priddy v. Rawson, 282 S.W.3d 588, 597 (Tex.App.-Houston [14th Dist.] 2009, pet. denied). Appellant did not include in its summary judgment response any argument that the trial court should deny appellee's motion because the misdirected emails fall within the "merger exception." Thus, appellant failed to preserve this issue for appellate review. We overrule appellant's second issue.
Having overruled appellant's issues on appeal, we affirm the trial court's final judgment.
FROST, J., Concurring.
KEM THOMPSON FROST, Justice, concurring.
The appellant/plaintiff, a company in the business of preparing students for the Law School Admission Test, sued the appellee/defendant, a company that provides the same service, asserting a conversion claim based on the defendant's alleged refusal to give the plaintiff emails that the defendant received from consumers who allegedly thought they sent their emails to the plaintiff but, in fact, sent their emails to the defendant. The defendant moved for a traditional summary judgment on two grounds:
The trial court granted summary judgment on both grounds, but, on appeal, the plaintiff has not challenged the second ground. Rather than summarily affirm the trial court's judgment based on the failure to challenge both grounds, the majority affirms based on the first ground. In affirming on this ground, the majority holds, as a matter of first impression under Texas law, that a document in the form of an email cannot be converted as a matter of law, even though the same document could be converted if the email were printed or if it had been created in hard-copy form. In reaching today's holding the majority fails to address or analyze several key questions relevant to this cutting-edge legal issue. The better course would be to leave the resolution of this issue for another day and affirm based on the failure to challenge the second ground.
The Conversion Claim
Appellant/plaintiff Robin Singh Educational Services, Inc. ("Singh Services") filed suit in the trial court against appellee/defendant Test Masters Educational Services, Inc. ("Test Masters"). In its live petition, Singh Services asserted only a claim for common-law conversion, for which it sought legal and equitable relief In its summary-judgment motion Test Masters presumed the truth of all factual allegations in Singh Services's live pleading. In that live pleading, Singh Services alleged as follows:
The Summary Judgment Motion
Test Masters filed a summary-judgment motion in which Test Masters argued that, even presuming the truth of all factual allegations in Singh Services's petition, Singh Services's conversion claim fails as a matter of law. Test Masters noted that (1) it possesses all legal rights to its email addresses and the domain name for its website and (2) a federal district court has permanently enjoined Singh Services from applying for a federal trademark for the mark "testmasters." Test Masters sought a traditional summary judgment based on two grounds: (1) because emails are intangible property, as a matter of law, they cannot be converted and (2) as a matter of law Test Masters could not have wrongfully
Arguments in the Opening Appellate Brief
The trial court granted Test Masters's summary-judgment motion without specifying the grounds upon which the trial court relied. In this situation, this court must affirm the trial court's judgment if any of the independent summary-judgment grounds is meritorious. See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000); Ramco Oil & Gas Ltd. v. Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 826-27 (Tex.App.-Houston [14th Dist.] 2006, pet. denied). Unless Singh Services has challenged both of the summary-judgment grounds in its opening appellate brief, this court must affirm. See Bartee v. Baylor College of Medicine, No. 14-06-00324-CV, 2007 WL 2989614, at *5 (Tex.App.-Houston [14th Dist.] Oct. 16, 2007, no pet.) (mem. op.); Fish v. Marsters Co., No. 06-00129-CV, 2007 WL 1438555, at *6 (Tex.App.-Houston [14th Dist.] May 17, 2007, pet. denied) (mem. op.); Ramco Oil & Gas Ltd., 207 S.W.3d at 826-27. But Singh Services asserts in its opening brief that there is only one summary-judgment ground, and Singh Services does not challenge the second ground upon which the trial court granted summary judgment. This is clear from Singh Services's sole appellate issue,
In its appellate brief, Singh Services never mentions that the trial court granted summary judgment based on the second ground in which Test Masters asserted that it could not have wrongfully exercised dominion or control over the emails as a matter of law. Singh Services does not assert that the trial court erred in granting summary judgment on this ground, nor does Singh Services provide any argument, analysis, record citations, or legal authorities addressing this summary-judgment ground. Even interpreting Singh Services's appellate brief liberally, this court cannot reasonably conclude that Singh Services has challenged the second summary-judgment ground. See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex.App.-Houston [14th Dist.] 2005, no pet.); Fish, 2007 WL 1438555, at *5-6. Because Singh Services was required to attack both summary-judgment grounds and Singh Services failed to do so, this court must affirm the trial court's summary judgment. And, this court need not and should not address the merits of either of the summary-judgment grounds. See Bartee, 2007 WL 2989614, at *5; Fish, 2007 WL 1438555, at *6; Ramco Oil & Gas Ltd., 207 S.W.3d at 826-27.
No Waiver of Any Argument Regarding the Merger Doctrine
The majority concludes that Singh Services waived any argument based on the
Test Masters sought a traditional summary judgment, and rather than take issue with the facts alleged in Singh Services's petition, Test Masters presumed for the sake of argument that all of these facts were true. Therefore, Test Masters undertook the burden of proving, as a matter of law, that the emails described in Singh Services's petition are not the type of property upon which a conversion claim can be based under Texas law. If, under the merger doctrine, these emails would be the type of property that could be the subject of a conversion claim, then Test Masters had the burden to show that the merger doctrine did not apply as a matter of law. This court's role is to conduct a de novo review of the trial court's traditional summary judgment, and Singh Services is free to make any argument on appeal that would show that Test Masters was not entitled to judgment as a matter of law based on the summary-judgment evidence and the summary-judgment grounds asserted in Test Masters's motion. See County of Dallas v. Wiland, 216 S.W.3d 344, 358, n. 62 (Tex.2007); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000) (per curiam); Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979); Ward v. Johnston, 593 S.W.2d 422, 424 (Tex.Civ.App.-Houston [14th Dist.] 1980, no writ). Therefore, Singh Services did not waive the right to argue on appeal that the emails in question can be the basis of a conversion claim under the merger doctrine.
No Need to Address the Merits.
The parties have not cited and research has not revealed any Texas case addressing whether an email that has not been printed or otherwise converted into a hard copy can be the subject of a common-law conversion claim.
In one of these cases, the Court of Appeals of New York held that documents that are kept only in electronic form on the hard drive of a computer can be the subject of a common-law conversion claim, even though, under New York law, there is a general rule that only tangible property can be converted. See Thyroff v. Nationwide Mut. Ins. Co., 8 N.Y.3d 283, 832 N.Y.S.2d 873, 864 N.E.2d 1272, 1275-1278 (2007). Summarizing some of the considerations in analyzing this issue, the Thyroff court observed:
Id. at 1275-1278 (citations omitted).
The Supreme Court of Texas has not addressed whether an email can be the subject of a common-law conversion claim. But the Supreme Court of Texas has held
Are the emails described in Singh Services's petition documents under opinions such as this court's opinion in In re Davis? If so, are these emails subject to conversion under the Supreme Court of Texas's opinion in Prewitt v. Branham? If the Supreme Court of Texas has not held that emails cannot be the basis of a conversion claim, is this court free to hold that emails can be the basis of a conversion claim? These are important questions that deserve serious consideration and analysis. But because Singh Services has not challenged all of the summary-judgment grounds in the case under review, this court need not and should not decide the issue presented by Singh Services today.
ANDERSON, J., majority.