In Vaschenko v. Novosoft, Inc., a partner from an alleged oral partnership sued his partner for breach of fiduciary duty. No. 03-16-00022-CV, 2018 Tex. App. LEXIS 771 (Tex. App.—Austin January 26, 2018, no pet. history). The trial court granted the defendant’s motion for summary judgment based on limitations, and the plaintiff appealed.
The court of appeals first held that the plaintiff waived his appellate argument that his claims were not barred because the partnership and the defendant’s fiduciary duties were still ongoing. The court held that a summary judgment nonmovant has to preserve its arguments or issues in the trial court. “To expressly present issues to the trial court, ‘the written answer or response to the motion must fairly apprise the movant and the court of the issues the non-movant contends should defeat the motion.’” Id. Further, “the fair-apprisal requirement ‘clearly contemplates that the trial court is not required to guess why a non-movant presents certain evidence or consider every possible reason the evidence might defeat summary judgment.’” Id. The court concluded: “the mere fact that the alleged existence of a partnership underpinned Vaschenko’s causes of action was insufficient to apprise the trial court, in a summary-judgment proceeding regarding the applicability of limitations, of his specific appellate argument that the limitations period was tolled because the partnership was never terminated.” Id. The court then addressed the issue that was preserved in the trial court:
We now turn to the general continuing-tort allegation that Vaschenko did raise in his response to Novosoft’s motion for traditional summary judgment. The allegedly tortious conduct that seems to form the basis of his defense are (1) Novosoft’s use of the Russian legal system to deprive him of assets, (2) that Brenan and Eure “deconstruct[ed] the business that Vaschenko had set-up into” various independent companies, and (3) that those companies are selling software he and Brenan developed to Vaschenko’s clients. However, Vaschenko fails to demonstrate how any such conduct constitutes tortious conduct that would support a continuing-tort defense to limitations. See Texas Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings, Inc., 219 S.W.3d 563, 587-88 (Tex. App.—Austin 2007, pet. denied) (“Texas Disposal has not offered any authority, nor have we found any, that broadens the continuing tort doctrine to include actions based on defamation, tortious interference, or tortious acts that are intermittent and irregular in nature. Rather, our research has revealed only contrary authority.”).
Id. The court affirmed the summary judgment for the defendant.