Neal Yanofsky v. Buff City Soap Investco, LLC, Michael Sutton and Guideboat Capital Partners, LLC

Affirmed and Opinion Filed December 6, 2024

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00957-CV

NEAL YANOFSKY, Appellant
V.
BUFF CITY SOAP INVESTCO, LLC, MICHAEL SUTTON AND
GUIDEBOAT CAPITAL PARTNERS, LLC, Appellees

On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-09871

MEMORANDUM OPINION
Before Justices Molberg, Reichek, and Smith
Opinion by Justice Molberg
Appellant Neal Yanofsky appeals the trial court’s order granting traditional

summary judgment on his third-party breach of contract claim against appellee

Guideboat Capital Partners, LLC (Guideboat)1 and granting no evidence summary

1
Yanofsky has not appealed any ruling regarding Buff City Soap Investco, LLP (“Buff City Soap”),
the entity that first brought the underlying lawsuit against Yanofsky, and Buff City Soap has made no
appearance in this appeal. As a result, we reach no issue in this appeal regarding any claims between Buff
City Soap and Yanofsky. We also reach no issue in this appeal regarding Yanofsky’s third-party claims
against Michael Sutton, Buff City Soap’s Chief Executive Officer and Guideboat’s Managing Partner, as
Yanofsky has only appealed the trial court’s summary judgment rulings on his breach of contract claim and
his claim for invasion of privacy based on misappropriation of his likeness—claims Yanofsky asserted only
against Guideboat, according to his latest pleading.
judgment on his third-party claim against Guideboat for invasion of privacy based

on misappropriation of his likeness. For the reasons that follow, we affirm the trial

court’s judgment in this memorandum opinion. See TEX. R. APP. P. 47.4.

I. BACKGROUND
Buff City Soap sued Yanofsky seeking a declaratory judgment that no valid,

enforceable contract existed between the two parties and seeking attorney’s fees.

Yanofsky answered, generally denied Buff City Soap’s claims, and asserted various

affirmative defenses.

Yanofsky also filed a third-party petition against appellees Guideboat and

Michael Sutton and later amended that petition. In his amended petition, Yanofsky

asserted third-party claims against both Guideboat and Sutton for fraud and

fraudulent inducement, as well as claims against Guideboat for breach of contract,

promissory estoppel, quantum meruit, and invasion of privacy from appropriation of

likeness.

Appellees filed a joint summary judgment motion. Buff City Soap moved for

traditional summary judgment on its declaratory judgment claim against Yanofsky,

and Sutton and Guideboat moved for (1) traditional summary judgment on

Yanofsky’s claims for breach of contract, quantum meruit, and promissory estoppel

and (2) no evidence summary judgment on Yanofsky’s claims for fraud, fraudulent

inducement, and invasion of privacy from appropriation of likeness.

–2–
Yanofsky responded to the joint summary judgment motion. He stated, in

part, “After further analysis, Yanofsky intends to go to trial on his breach of contract

and appropriation of likeness claims.” He included arguments opposing the

summary judgment motions on those two claims but not on any other claims.

The trial court granted summary judgment to Buff City Soap, Sutton, and

Guideboat, declaring no valid contract existed and dismissing all of Yanofsky’s

third-party claims. Yanofsky appealed, and though we initially questioned our

jurisdiction, we ultimately concluded we have jurisdiction over the appeal.2

II. ISSUES AND ANALYSIS
In two issues, Yanofsky argues the trial court erred in granting summary

judgment on his third-party claims for breach of contract and invasion of privacy

from appropriation of his likeness.

A. Applicable Standards
A party may move for summary judgment based on traditional or no evidence

grounds, or both. See TEX. R. CIV. P. 166a(c) (traditional grounds); see also id.

166a(i) (no evidence grounds).

2
Because the signed judgment initially included an incorrect date of August 25, 2021, we questioned
our jurisdiction, as it appeared Yanofsky’s appeal was untimely. Our concern regarding untimeliness was
addressed by receipt of supplemental clerk’s records showing the trial court granted a joint motion for entry
of judgment nunc pro tunc and entered a judgment nunc pro tunc (“judgment”) correctly reflecting the trial
court granted summary judgment on August 25, 2022.
However, while our concern regarding timeliness was addressed, because the trial court’s judgment did
not address Buff City’s claim for attorney’s fees, we again questioned our jurisdiction, as it did not initially
appear to us that the judgment was final. Ultimately, however, we concluded we have jurisdiction over this
appeal, as the trial court granted summary judgment to Buff City after Buff City orally stipulated in the
February 3, 2022 summary judgment hearing that it was not seeking attorney’s fees.
–3–
To prevail on a traditional summary judgment motion, a movant must

conclusively establish there is no genuine issue of material fact and, therefore, the

movant is entitled to judgment as a matter of law. Id. 166a(c). A matter is

conclusively established if ordinary minds cannot differ as to the conclusion to be

drawn from the evidence. Triton Oil & Gas Corp. v. Marine Contractors & Supply,

Inc., 644 S.W.2d 443, 446 (Tex. 1982). If the movant establishes its right to

judgment as a matter of law, then the burden shifts to the nonmovant to either present

evidence raising a genuine issue of material fact by producing more than a scintilla

of evidence regarding the challenged element, or conclusively prove all elements of

an affirmative defense. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013); M.D.

Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). More

than a scintilla of evidence exists when reasonable and fair-minded jurors could

differ in their conclusions in light of all of the summary judgment evidence.

Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).

A party may move for a no evidence summary judgment if there is no evidence

of one or more essential elements of a claim or defense on which an adverse party

would have the burden of proof at trial. TEX. R. CIV. P. 166a(i); Fort Worth

Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004); Randall’s Food

Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). No evidence summary

judgment is proper when:

–4–
(a) there is a complete absence of evidence of a vital fact, (b) the court
is barred by rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (c) the evidence offered to prove
a vital fact is no more than a mere scintilla, or (d) the evidence
conclusively establishes the opposite of the vital fact.
Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).

To defeat a no evidence summary judgment motion, the nonmovant must

produce more than a scintilla of probative evidence raising a genuine issue of

material fact as to each challenged element of its cause of action. Id. If the

nonmovant fails to do so, the trial court must grant a no evidence summary judgment

motion. See TEX. R. CIV. P. 166a(i). “Less than a scintilla of evidence exists when

it is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.”

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred

v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

We review de novo the trial court’s ruling on a motion for summary judgment.

Ortiz v. State Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019); Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). 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.” Ortiz, 589

S.W.3d at 131 (quoting Dorsett, 164 S.W.3d at 661).

–5–
B. Breach of Contract
In his first issue, Yanofsky argues the trial court erred in granting summary

judgment for Sutton and Guideboat on his breach of contract claim. Yanofsky’s

amended petition alleged, in part:

Yanofsky and Guideboat entered into a contract whereby Yanofsky
would provide consulting services to it and, upon closing of the BCS
investment, Yanofsky’s consulting work would continue, he would
receive a board seat and compensation for that role, and receive options.
Yanofsky provided valuable consideration and fully performed . . . or
was excused from performing his contractual obligations under the
contract and satisfied all conditions precedent under the contract.
Guideboat breached the contract by refusing to follow the express
and/or implied terms of the contract[,] [and] [a]s a direct and proximate
consequence of Guideboat’s breach, Yanofsky suffered damages
. . . [and] had to retain attorneys to prosecute this action and agreed to
pay the retained attorneys a reasonable fee.
In appellees’ joint summary judgment motion, Sutton and Guideboat moved

for traditional summary judgment on Yanofsky’s breach of contract claim, see TEX.

R. CIV. P. 166a(c), arguing that, as a matter of law, no contract existed, and that, even

assuming a contract existed, no breach occurred.

In his summary judgment response, Yanofsky contested both issues, arguing

that the contract was formed in an email exchange between him and Sutton and

arguing that Guideboat breached that alleged contract by notifying him on

November 4, 2019 he “was no longer needed.”

In its judgment, the trial court did not specify whether its ruling was based on

the first ground (no contract), second ground (no breach), or both. The judgment

stated, in pertinent part:
–6–
Sutton and Guideboat are entitled to judgment as a matter of law on
. . . Yanofsky’s . . . breach-of-contract claim. Yanofsky’s breach-of-
contract claim against Sutton and Guideboat is dismissed with
prejudice as to re-filing same, and Yanofsky shall take nothing on his
breach-of-contract claim against Sutton and Guideboat[.]
When, as here, the trial court does not specify the grounds upon which it

granted summary judgment, we must affirm if any of the independent summary

judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22

S.W.3d 868, 872 (Tex. 2000).

For purposes of this opinion, we assume, without deciding, that Guideboat3

met its burden of establishing its right to judgment as a matter of law that no contract

with Guideboat existed and that Yanofsky presented evidence raising a genuine issue

of material fact by producing more than a scintilla of evidence that one did. See

Neely, 418 S.W.3d at 59; Willrich, 28 S.W.3d at 23 (discussing summary judgment

burdens).

Even with this assumption, however, we must also consider whether

Guideboat met its burden of establishing its right to judgment as a matter of law on

its other asserted basis for summary judgment—that no breach of that agreement

occurred—and if so, whether Yanofsky produced more than a scintilla of evidence

that Guideboat breached it. See Neely, 418 S.W.3d at 59; Willrich, 28 S.W.3d at 23

(discussing summary judgment burdens).

3
Despite the references to “Sutton and Guideboat” in the portion of the trial court’s judgment on
Yanofsky’s breach of contract claim, we refer here only to Guideboat because, as indicated previously,
Yanofsky asserted this claim only against Guideboat.
–7–
Based on the record before us, we conclude Guideboat met its burden but that

Yanofsky did not do so, as Yanofsky failed to produce more than a scintilla of

evidence that Guideboat breached the agreement. In appellees’ joint summary

judgment motion, Sutton and Guideboat argued that even if Yanofsky and Sutton’s

August 2019 email exchange was assumed or determined to be a valid contract,

summary judgment was still proper on Yanofsky’s claim for breach of contract

because “Yanofsky cannot identify a single contractual provision that Sutton or

Guideboat breached.” Among other items submitted with their summary judgment

motion, Sutton and Guideboat included the August 2019 email exchange Yanofsky

alleged constituted a contract, portions of the depositions of Yanofsky and Sutton,

and a declaration by Sutton. Citing the alleged contract, Sutton and Guideboat

argued that, because the alleged contract does not identify a start date or term of the

alleged employment relationship, any alleged employment contract was at will,

terminable by either party at any time with or without cause, and thus the decision

not to appoint Yanofsky as Buff City’s Executive Chairmain was, as a matter of law,

not a breach of the alleged contract.

In Yanofsky’s summary judgment response, he argued “Sutton and Guideboat

breached the contract on November 4, 2019.” He included with his response a

declaration stating, among other things, “On November 4, 2019, Sutton called me

and told me I was no longer needed.” Yanofsky identified no other alleged breach

in his summary judgment response.

–8–
“Texas follows the employment-at-will doctrine, and employment for an

indefinite term may be terminated at will and without cause.” Williams v. First

Tennessee Nat’l Corp., 97 S.W.3d 798, 802–03 (Tex. App.—Dallas 2003, no pet.).

“Absent a specific contract term to the contrary, this doctrine allows an employee to

quit or be terminated without liability on the part of the employer or the employee,

with or without cause.” Id. at 803; see Montgomery Cnty. Hosp. Dist. v. Brown, 965

S.W.2d 501, 502 (Tex. 1998) (For a binding contract of employment to exist, “the

employer must unequivocally indicate a definite intent to be bound not to terminate

the employee except under clearly specified circumstances.”).

Here, we agree with Sutton and Guideboat’s argument that Yanofsky has

failed to specify a particular provision within the alleged agreement that Guideboat

allegedly breached. Sutton and Guideboat provided as part of their summary

judgment evidence the same alleged agreement that Yanofsky cites as proof of his

alleged contract, and nothing within that agreement provides for any particular term

of employment or limits either party’s ability to terminate the agreement, even

assuming it exists, for any reason and at any time. Thus, even assuming the email

chain between Sutton and Yanofsky constituted an employment contract between

Guideboat and Yanofsky, because the assumed contract lacks any specific term to

the contrary, the employment-at-will doctrine allowed Yanofsky to quit or be

terminated without liability on the part of Guideboat or Yanofsky, with or without

cause. See Williams, 97 S.W.3d at 803.

–9–
We overrule Yanofsky’s first issue.

C. Invasion of Privacy From Appropriation of Likeness
In his second issue, Yanofsky argues the trial court erred in granting summary

judgment for Sutton and Guideboat on his claim for invasion of privacy from

appropriation of his likeness.

In his live pleading, Yanofsky alleged, in pertinent part, “Guideboat has

appropriated Yanofsky’s likeness for the value associated with it[,]” Yanofsky “can

be identified from Guideboat’s appropriation of his likeness in its investment-related

materials[,]” “Guideboat has received some advantage or benefit from its

appropriation of Yanofsky’s likeness[,]” and “Yanofsky has suffered injury as a

result of Guideboat’s appropriation of his likeness, while Guideboat has been

unjustly enriched.”

Sutton and Guideboat moved for no evidence summary judgment on this

claim. See TEX. R. CIV. P. 166a(i). Specifically, appellees’ joint summary judgment

motion stated, “While there is no dispute that Yanofsky’s name was listed in certain

investment materials . . . no evidence has been put forth that Sutton or Guideboat

received any benefit from the use of Yanofsky’s name” and that “Yanofsky has not

put forth any evidence that he suffered any injury from the use of his likeness.”

In the portion of his summary judgment response addressing this claim,

Yanofsky argued Guideboat received a benefit from the misappropriation of his

–10–
likeness, but he did not address the argument that he had no evidence he suffered

any injury from the use of his likeness.

As to the alleged benefit to Guideboat, Yanofsky’s summary judgment

response claimed “Sutton and Guideboat appropriated the name for its benefit to

close the deal” and cited, as the only evidence, an email response to Sutton from an

executive recruiter, Helen Lao. In the email chain between the two, Sutton informed

Lao that Guideboat was in the process of buying an entrepreneurial-owned, plant-

based soap production company and referred to Yanofsky as an “exec chairman”

Guideboat had “teed up” as part of the “senior team.” Sutton also stated there were

still two positions Guideboat was “trying to identify pre-close” and he would love

to talk with Lao about one of them, a franchise sales position. Lao responded by

stating she would “love to talk further” and by stating, “I think VERY highly of Neal

Yanofsky and know if he is involved in any way, it will be a big success.”

The trial court granted the no evidence summary judgment motion. On

appeal, Yanofsky argues this was error, again citing Lao’s email response to Sutton

as the only evidence of the benefit to Guideboat by the misappropriation of his

likeness. Sutton and Guideboat, in contrast, argue Lao’s email response constitutes

no evidence or alternatively no more than a scintilla of evidence on any alleged

benefit to Guideboat.

The three elements of invasion of privacy by misappropriation are: (1) the

defendant appropriated the plaintiff’s name or likeness for the value associated with

–11–
it; (2) the plaintiff can be identified from the publication; and (3) there was some

advantage or benefit to the defendant. Express One Int’l, Inc. v. Steinbeck, 53

S.W.3d 895, 900 (Tex. App.—Dallas 2001, no pet.). Texas law does not protect a

name per se, but the value associated with it. Id. Liability for invasion of privacy

arises only when the defendant appropriates for his own benefit the commercial

standing, reputation, or other values associated with the plaintiff’s name. Id.

Generally, an appropriation becomes actionable when the name is used “to advertise

the defendant’s business or product, or for some similar commercial purpose.” Id.

In their no evidence summary judgment motion, Sutton and Guideboat argued

Yanofsky had no evidence to satisfy the third element. Both in the trial court and on

appeal, the only evidence on this element cited by Yanofsky is Lao’s email response

to Sutton, which we quoted above. Taking as true all evidence favorable to

Yanofsky, and indulging every reasonable inference and resolving any doubts in his

favor, see Ortiz, 589 S.W.3d at 131, we agree with Sutton and Guideboat’s view that

Yanofsky presented no more than a scintilla of evidence that Guideboat received

some advantage or benefit from Sutton’s misappropriation of Yanofsky’s likeness

on Guideboat’s behalf.

Although Yanofsky does not cite to the use of his name in Guideboat’s

investment materials as evidence of any benefit to Guideboat, even if we considered

that evidence along with Lao’s email response to Sutton, based on the record before

us, such evidence does no more than create a mere surmise or suspicion that the use

–12–
of Yanosky’s name benefited Guideboat, and summary judgment was thus proper.

See Express One Int’l, Inc., 53 S.W.3d at 900 (concluding claimant produced no

evidence defendant appropriated a particular name for the defendant’s own benefit

because of any value associated with the name); see also Merriman, 407 S.W.3d at

248; King Ranch, Inc., 118 S.W.3d at 751 (both discussing no evidence summary

judgment standards).

On this record, we conclude the trial court did not err in granting no evidence

summary judgment on Yanofsky’s claim against Guideboat4 for invasion of privacy

based on misappropriation of his likeness. We overrule Yanofsky’s second issue.

III. CONCLUSION
We affirm the trial court’s judgment.

220957f.p05 /Ken Molberg/
KEN MOLBERG
JUSTICE

4
The trial court’s summary judgment order and its later judgment nunc pro tunc stated, in part,
“Guideboat is entitled to no-evidence summary judgment on Yanofsky’s invasion of privacy from
appropriation of likeness claim,” Yanofsky “shall take nothing” on this claim against Guideboat[,]” and
such claim “against Sutton and Guideboat is dismissed with prejudice as to re-filing same.” Despite the
trial court’s description of the invasion of privacy from appropriation of likeness claim as being “against
Sutton and Guideboat,” Yanofsky asserted this claim only against Guideboat, not against Sutton. Thus, in
deciding Yanofsky’s second issue, we consider only whether the trial court erred in granting no evidence
summary judgment to Guideboat on this claim and conclude it did not.
–13–
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

NEAL YANOFSKY, Appellant On Appeal from the 191st Judicial
District Court, Dallas County, Texas
No. 05-22-00957-CV V. Trial Court Cause No. DC-20-09871.
Opinion delivered by Justice
BUFF CITY SOAP INVESTCO, Molberg. Justices Reichek and Smith
LLC, MICHAEL SUTTON AND participating.
GUIDEBOAT CAPITAL
PARTNERS, LLC, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.

It is ORDERED that appellee GUIDEBOAT CAPITAL PARTNERS, LLC
recover its costs of this appeal from appellant NEAL YANOFSKY.

Judgment entered this 6th day of December, 2024.

–14–