Christus Health and Christus Health Gulf Coast v. Kone, Inc

• Court: Court of Appeals of Texas
• Decided: June 25, 2009
• Docket: 14-07-00786-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed June 25, 2009

Affirmed and Memorandum Opinion filed June 25, 2009.

In The

Fourteenth Court of Appeals

____________

NO. 14-07-00786-CV

CHRISTUS HEALTH AND CHRISTUS HEALTH GULF COAST, Appellants

V.

KONE INC., Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2005-49255

M E M O R A N D U M   O P I N I O N

Appellants Christus Health and Christus Health Gulf Coast (collectively, AChristus@) appeal the trial court=s order granting summary judgment on Christus= fraud and fraud-in-the-inducement claims relating to a contract for elevator-maintenance services.  In addition to responding to Christus= appellate issues, appellee KONE Inc. (AKone@) has moved to dismiss the appeal, arguing that it is moot because (1) the trial court=s judgment is supported by an independent ground not challenged on appeal, and (2) Christus has recovered from Kone all of the economic damages it claimed for fraud, and therefore the trial court could not award damages on that claim.  We deny Kone=s motion to dismiss and affirm the trial court=s judgment.

Factual and Procedural Background

In early 2002, Kone and Christus began negotiations for Kone to maintain the elevators at Christus St. Joseph Hospital and Christus St. John Hospital.  Tom Kautz, an assistant vice-president and regional sales manager for Kone, was the only Kone representative involved in negotiating and executing the contract with Christus.  In March 2002, the parties executed the contract that is the subject of this appeal.

The contract between Kone and Christus incorporated representations that Kone made to Christus, including the following:

[Kone] and [Kone] Personnel have the experience, skill and resources necessary to provide the Services consistent with the terms and conditions of this Agreement, consistent with industry standards and in a good and workman like manner.

The contract also included specific references to Christus= reliance on Kone=s representations when entering into the contract:

[Kone] hereby acknowledges that [Christus] is relying on these representations as essential elements to this Agreement, representing as they do, material inducements, without which [Christus] would not have entered into this Agreement.

In August 2003, while the contract was in effect, Dr. Hitoshi Nikaidoh, a surgical resident, was decapitated when the doors closed on him as he entered an elevator at Christus St. Joseph Hospital.  Immediately thereafter, Christus hired Persohn/Hahn Elevator Company to perform audits on all of its elevators that Kone serviced under the contract.  According to Christus, these audits identified necessary maintenance work that Kone was obligated to perform under the contract which it had not done.  Christus terminated the contract with Kone and hired ThyssenKrupp Elevator Company to replace Kone and to provide elevator-maintenance services at Christus St. Joseph Hospital and Christus St. John Hospital.

In July 2005, Christus sued Kone for fraud, breach of warranty, and breach of contract, alleging that Kone materially breached the elevator-maintenance contract in August 2003 by failing to properly maintain the elevators.  In January 2007, Kone filed both a traditional and a no-evidence motion for partial summary judgment on Christus= fraud claims.^[1]  Christus filed a combined response to Kone=s motions.

On March 14, 2007, the trial court granted Kone=s motions on fraud and fraud in the inducement.  By separate order, the trial court also granted Kone=s special exceptions, in which Kone argued that Christus= claim for exemplary damages should be dismissed on the grounds that after the trial court granted summary judgment in favor of Kone on Christus= fraud claims, there were no claims remaining in Christus= pleadings that would support an award of exemplary damages.

To recover attorney=s fees under chapter 38 of the Texas Civil Practice and Remedies Code, Christus made a written presentment to Kone in April 2007, seeking $2,146,549.75 in damages.  Kone unconditionally tendered to Christus a cashier=s check for the full requested amount.  Christus accepted the tender and the trial court signed an order that Christus= acceptance of Kone=s tender eliminated all remaining and pending claims.  In dismissing the remaining, pending claims, however, the trial court expressly ordered that the dismissal did not include any claims by Christus for the causes of action on which Kone was granted summary judgment, including the fraud claims.

Analysis

I.        Kone=s Motion to Dismiss

In its motion to dismiss and in its response brief on appeal, Kone argues that the appeal is moot on two grounds:  (1) there is no live issue regarding fraud; and (2) there is no live issue regarding fraud damages.  We disagree and explain below.

A.      Fraud Issue

Kone argues that Christus specifically limited its appeal to the order granting Kone=s no-evidence motion for summary judgment on Christus= fraud claim, and failed to challenge the trial court=s grant of summary judgment on fraud in Kone=s traditional motion for summary judgment.  Thus, Kone contends the appeal should be dismissed, or alternatively the judgment should be affirmed, because the trial court=s judgment is supported by an independent ground not affected by the appeal. 

In its second amended petition, Christus made the following allegation of fraud:

Kone committed fraud, including, but not limited to, Mr. Tom Kautz, during the contractual negotiations with Christus.  Kone made false and material representations of fact in promising to provide the necessary skill, experience, training and resources to maintain the elevators under the contract.  At the time Kone made such representations, it did not know they were true and did not care.  Further, Kone intended that its material misrepresentations would be relied upon by Christus, without which Christus would not have entered the contract.  Indeed, Christus relied upon these representations to its detriment, resulting in the injuries and damages set forth below.  Consequently, Kone is liable to Christus for actual damages under a theory of common law fraud and exemplary damages under Section 541.003(a)(1) of the Texas Civil Practice and Remedies Code.

Kone asserted different defenses to the fraud claim in its no-evidence and traditional motions for summary judgment.  In its no-evidence motion, Kone alleged that there was no evidence to support elements of either a fraudulent-inducement claim or fraud Aduring the contract.@  Kone=s traditional motion for summary judgment alleged that the merger clause in the parties= contract^[2] precluded Christus= fraud-in-the-inducement claim.

The trial court granted summary judgment on both motions for summary judgment, specifically ordering the following:

As a matter of law, KONE Inc. is not liable to Plaintiffs on Plaintiffs[=] claims set out in paragraph VII of Plaintiffs= 2nd Amended Petition re fraud and fraud in the inducement as the Court grants the 166(a)(c) motion on the ground of fraud due to representations at the time of the contract and the 166a(i) motion on the grounds of fraud and fraud in the inducement.

Because Christus did not appeal from the grant of summary judgment on its fraud claim on the merger-clause ground, Kone contends that this ruling independently supports the judgment.^[3]  But, although we agree that Christus appeals only the trial court=s grant of the no-evidence motion for summary judgment, we disagree that, under these facts, the trial court=s ruling on the merger clause independently supports the trial court=s judgment.

Courts recognize claims of fraudulent inducement to enter into a contract and fraud claims based on a representations made with no intention of performing, whether or not the representation is later subsumed into a contract.  See Formosa Plastics Corp. USA v. Presidio Eng=rs & Contractors, Inc., 960 S.W.2d 41, 46 (Tex. 1998).  In certain circumstances, the merger doctrine may apply to negate reliance on representations made during negotiations that fraudulently induce a party to enter into a contract.  See Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 177B81 (Tex. 1997); IKON Office Solutions, Inc. v. Eifert, 125 S.W.3d 113, 126B28 (Tex. App.CHouston [14th Dist.] 2003, pet. denied).  Accordingly, in IKON Office Solutions, this court distinguished between fraud claims based on certain representations made before the contract at issue was executed, which it held were barred by the merger doctrine, and claims based on representations that were ultimately included in the contract.  See IKON Office Solutions, Inc., 125 S.W.3d at 128B32.

Here, Christus alleges that the representations Kautz made to induce Christus to enter into the elevator-services contract were ultimately incorporated into the contract itself.  Thus, even though the trial court ruled that the merger doctrine barred any fraudulent-inducement claims based on statements made before the contract was executed, this ruling does not necessarily extinguish Christus= claims based on Kone=s representations in the contract that it had Athe experience, skill and resources necessary to provide the Services consistent with the terms and conditions of this Agreement, consistent with industry standards and in a good and workman like manner.@  Indeed, Kone acknowledged in the contract that Christus was Arelying on these representations as essential elements to this Agreement, representing as they do, material inducements,@ and without the representations, Christus Awould not have entered into this Agreement.@

Kone argues, however, that Christus= pleadings support only a fraudulent-inducement claim, and not a fraud claim based on misrepresentations in the contract.^[4]  Kone=s argument is predicated on this sentence in Christus= petition: AKone committed fraud, including, but not limited to, Mr. Tom Kautz, during the contractual negotiations with Christus@ (emphasis added).  A party=s pleadings need only provide Aa short statement of the cause of action sufficient to give fair notice of the claim involved.@  Tex. R. Civ. P. 47; Tex. Dep=t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 230 (Tex. 2004).  A court should uphold a plaintiff=s petition as to a cause of action that may be reasonably inferred from what is specifically stated.  Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993).  In the absence of special exceptions, Aa petition will be construed liberally in favor of the pleader.@  Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982); Stone v. Layers Title Ins. Corp., 554 S.W.2d 183, 186 (Tex. 1977). 

Here, Christus expressly states in its petition that its fraud claim Aincludes, but is not limited to@ such misrepresentations.  Thus, Christus= petition plainly encompasses additional representations, including representations made in the contract.  Moreover, Kone did not specially except to this alleged deficiency or ambiguity in Christus= pleadings.  Therefore, we liberally construe Christus= petition in its favor to include a claim of fraud based on contractual representations.  See Stone, 554 S.W.2d at 186.  And, even if we were to find that Christus= pleading did not support a fraud claim, we would conclude that the issue was tried by consent.  Unpleaded claims or defenses that are tried by express or implied consent are treated as if they had been raised by the pleadings, and any complaint about variances between a party=s pleadings and summary-judgment briefing cannot be raised for the first time on appeal.  See Roark v. Stallworth Oil & Gas, 813 S.W.2d 492, 495 (Tex.1991).  Below and in its appellate brief, Christus argues that summary judgment was improper because it raised more than a scintilla of evidence to support a fraudulent-inducement claim based on misrepresentations Kone made in the contract itself, as well as misrepresentations Kone made before the contract was executed that were ultimately adopted in the contract.  Kone did not object to any alleged variance between Christus= pleadings and its summary-judgment response.  Therefore, Kone tried the fraud claim based on representations made in the contract by consent and may not complain of any alleged pleading deficiencies for the first time on appeal.  See Roark, 813 S.W.2d at 495.

Therefore, we reject Kone=s argument that the trial court=s ruling on the merger clause independently supports the trial court=s judgment and renders Christus= appeal moot.

B.      Fraud Damages

Kone next argues that Christus= appeal is also moot because AChristus has recovered one-hundred percent of its claimed economic damages for fraud, and therefore the trial court could not award damages on the fraud claim.@  Specifically, Kone contends that Christus sought economic damages for its fraud claim totaling $2,146,549.75, the same amount and categories of damages it sought for its breach-of-contract claim.  After the trial court granted Kone=s motions for summary judgment on Christus= fraud claim, Kone tendered, and Christus accepted, a check for the full amount of these damages.  Thus, Kone contends, there is nothing left for Christus to recover.  In support of its contention, Kone relies on the one-satisfaction rule, citing Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303B04 (Tex. 2006), and argues that the appeal is moot because Christus= damages have Aceased to exist.@  See Spera v. Fleming, Hovenkamp & Grayson, P.C., 25 S.W.3d 863, 874 (Tex. App.CHouston [14th Dist.] 2000, no pet.) (stating that Auncertainty as to the fact of legal damages is >fatal to recovery=@) (citing McKnight v. Hill & Hill Exterminators, Inc., 689 S.W.2d 206, 207 (Tex. 1985)).  Again, however, we disagree.

Under the one-satisfaction rule, a successful litigant is required to elect between remedies so that she does not receive more than one recovery for the same injury.  Chapa, 212 S.W.3d at 303.^[5]  The Chapa court recognized that even though the successful plaintiff was limited to one recovery, she was Aentitled to recover on the most favorable theory the verdict would support.@  Id. at 314.  Moreover, she was not required to make that election Auntil she knows her choices.@  Id.  Thus, in Chapa, the circumstances involved a successful litigant who prevailed on several theories at trial and so was entitled to choose the most favorable remedy to compensate her for her injuries.  In contrast to Chapa, Christus has not had the opportunity to choose the most favorable remedy for its alleged injuries because the trial court granted summary judgment on its fraud claim.  Therefore, Chapa is distinguishable and the one-satisfaction rule does not render the appeal moot.

Moreover, should Christus succeed on its fraud claim, it may be entitled to alternative remedies, including economic damages in tort and exemplary damages, rather than the economic damages and attorney=s fees available for breach of contract.  See Chapa, 212 S.W.3d at 304.  Under Texas law, tort damages are recoverable for fraudulent representations, even when those representations cause only economic loss.  See Formosa Plastics Corp., 960 S.W.2d at 47.  Kone does not dispute that Christus has not yet recovered any tort damages resulting from Kone=s alleged fraud.^[6]  Therefore, should Christus= fraud claim be remanded to the trial court, a live issue would exist concerning its potential tort damages.

Further, a party may recover exemplary damages for fraud.  See Formosa, 960 S.W.2d at 47.  Christus has not received any exemplary damages from Kone.  Kone, however, contends that even if Christus=s fraud claim is remanded, Christus would not be entitled to exemplary damages in addition to actual damages.  Specifically, Kone contends that the trial court, by separate order, granted Kone=s special exceptions as to Christus=s exemplary-damages claim and struck Christus=s pleadings seeking exemplary damages, and because Christus failed to raise an issue or provide any argument challenging the trial court=s special-exceptions order, it has waived any error as to that order.  Kone cites several cases for the general proposition that a party may waive a complaint on appeal by failing to raise the complaint in its statement of the issues or in the body of its brief.

In this circumstance, however, we are guided by the supreme court=s recent decision in Perry v. Cohen, 272 S.W.3d 585 (Tex. 2008) (per curiam).  In that case, the supreme court reversed a court of appeals= holding that the plaintiffs waived error as to the merits of an order sustaining special exceptions when they did not separately challenge the order on appeal, and held that it was sufficient that the plaintiffs challenged the merits of the special-exceptions order in the body of its brief.  Id. at 586.  In that case, although the plaintiffs did not specify that they were challenging the trial court=s interlocutory order granting special exceptions, the bulk of the plaintiffs= briefing on their first issue challenged the basis for the trial court=s special-exceptions orderCthat the trial court=s dismissal of their causes of action for failing to comply with the order granting special exceptions was error.  See id. at 587.  As the supreme court explained, the plaintiffs were Aentitled to reversal of the trial court order dismissing their clauses of action for failing to comply with the order granting special exceptions if the order granting special exceptions was improper.@  Id.

Here, the sole basis for Kone=s special exceptions on exemplary damages was that Athere is no claim in [Christus=] lawsuit that would support the award of exemplary damages.@  The trial court=s order granting the special exceptions was issued after the trial court=s summary-judgment rulings on Christus= fraud claim.  Fraud was the only cause of action Christus advanced that would support the recovery of exemplary damages.  Thus, at the time the court granted Kone=s special exceptions, its order was proper under the circumstances.  But if summary judgment was not proper on Christus= fraud claim, no basis existed for the subsequently granted special exceptions.

In its opening brief, Christus argues in detail that the trial court erred in granting summary judgment on Christus= fraud claim.  As in Perry v. Cohen, therefore, Christus has challenged the merits of the trial court=s special exceptions order, as it challenged the sole substantive ground for the order.  See id.  Our conclusion also is consistent with the Perry court=s admonition that Adisposing of appeals for harmless procedural defects is disfavored@ and Aappellate courts should reach the merits of an appeal whenever reasonably possible.@  Id.  Accordingly, if Christus were to prevail on its fraud claim, a live issue would exist concerning exemplary damages.  

For the foregoing reasons, we conclude that Christus= appeal is not moot and we deny Kone=s motion to dismiss the appeal for want of jurisdiction.

II.       The Trial Court=s Order Granting Kone=s No-Evidence Motion for Summary Judgment

We now turn to the merits of Christus= appeal.  Specifically, Christus contends that the trial court erred in granting Kone=s no-evidence motion for summary judgment because it raised more than a scintilla of evidence on the elements of fraud.  In its no-evidence motion for summary judgment, Kone asserted that Christus had no evidence to support the following elements of fraud: (1) Kone made misstatements of material fact; (2) Kone knew the misstatements of material fact were false at the time they were made or asserted the statements without knowledge of their truth; (3) Kone intended Christus to rely on misstatements of material fact; and (4) Christus relied to its detriment on misstatements of material fact.^[7]  On appeal, Christus contends it has presented more than a scintilla of evidence on all of the elements of fraud; however, Kone responds to Christus= arguments concerning the first two elements only. 

A.      Standard of Review

A trial court must grant a no-evidence motion for summary judgment if: (1) the moving party asserts that there is no evidence of one or more specified elements of a claim or defense on which the adverse party would have the burden of proof at trial; and (2) the respondent produces no summary-judgment evidence raising a genuine issue of material fact on each of the challenged elements.  See Tex. R. Civ. P. 166(a)(i).  We review a no-evidence summary judgment for evidence that would enable reasonable and fair-minded jurors to differ in their conclusions.  Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)).

B.      Evidence that Kone Made Misstatements of Material Fact

As evidence that Kone made misstatements of material fact, Christus points to that portion of the elevator-services contract in which Kone represented that it had Athe experience, skill and resources necessary to provide the Services consistent with the terms and conditions of this Agreement, consistent with industry standards and in a good and workman like manner.@  To raise an issue that this representation was false, Christus relies on the affidavit of Mr. Zach McCain, Christus= retained elevator maintenance expert.  McCain opined that Kone=s elevator maintenance personnel Alacked the experience, skill, or resources necessary to provide services consistent with the terms and conditions of that maintenance contract, consistent with industry standards, or in a good and workmanlike manner.@ Christus maintains that this evidence is sufficient to raise a fact issue on this element of fraud.  In response, Kone contends that McCain=s affidavit is conclusory, a sham affidavit, and not timely provided, and that the trial court erroneously overruled Kone=s objections on these grounds.  We review a trial court=s evidentiary decisions by an abuse-of-discretion standard.  Nat=l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527B28 (Tex. 2000). 

Assuming for purposes of discussion that the alleged misstatements Christus relies on were material, we nevertheless agree with Kone that the McCain affidavit is conclusory because it fails to set out the basis for his opinions.  Additionally, McCain does not opine that Kone=s alleged misstatements of material fact were made at the time the parties entered into the contract.  After noting that he reviewed the audits performed by PersohnHahn and Kone and the work items performed by Thyssen Krupp in 2003 and 2004, McCain states in relevant part:

Based on reviewing those documents, among others, I have formed the opinion that the elevator maintenance personnel assigned by Kone to perform Kone=s obligations under the 2002 Elevator Maintenance Agreement lacked the experience, skill or resources necessary to provide services consistent with the terms and conditions of that maintenance contract, consistent with industry standards, or in a good and workmanlike manner.

Although McCain states in his affidavit that he has reviewed audits and work items performed by another contractor, he says nothing about the basis for that opinion; how those audits and work items revealed to him that Kone=s personnel lacked the experience, skill, or resources to perform the elevator services at the time the parties entered into the contract; what experience, skill, or resources were needed; or how the audits and the lack of experience, skill, or resources related to the accident. 

Conclusory statements in an affidavit unsupported by facts are insufficient to defeat summary judgment.  CA Partners v. Spears, 274 S.W.3d 51, 63 (Tex. App.CHouston [14th Dist.] 2008, pet. denied); 1001 McKinney Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27 (Tex. App.CHouston [14th Dist.] 2005, pet. denied) (citing Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997)).  A conclusory statement is one that does not provide the underlying facts to support the conclusion.  Id. (citing 1001 McKinney Ltd., 192 S.W.3d at 27); see also Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (stating that a witness=s affidavit is conclusory if it fails to explain the basis of the witness=s statements to link his conclusions to the facts).  Further, a conclusory statement of an expert witness is insufficient to create a question of fact to defeat summary judgment.  See McIntyre v. Ramirez, 109 S.W.3d 741, 749B50 (Tex. 2003) (citing Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam); see also Wadewitz, 951 S.W.2d at 466 (AConclusory statements by an expert are insufficient to support or defeat summary judgment.@).

We conclude that McCain=s affidavit is nearly identical in key respects to the affidavit considered by the supreme court in Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (per curiam).  In Anderson, an attorney sued for malpractice moved for summary judgment supported by his own affidavit, which stated in substance:

I have reviewed the Plaintiff's Original Petition, my file and the relevant and material documents filed with the Court, and it is clear that I acted properly and in the best interest of Mrs. Jimmie F. Anderson when I represented her, and that I have not violated the [DTPA].  I did not breach my contract with Mrs. Jimmie F. Anderson, and have not been guilty of any negligence or malpractice.  Mrs. Jimmie F. Anderson has suffered no damages or legal injury as a result of my representation of her.

Id. at 54.  The supreme court held that this affidavit was Awholly conclusory@ and would not support a summary judgment.  Id. at 55. 

Christus attempts to distinguish Anderson on the basis that in that case, the challenged affidavit merely referenced general documents and did not provide a list of items to support his allegations.  Here, Christus contends, McCain Adid not summarily review general documents and simply conclude that Kone had committed fraud in the inducement@; rather, Abased on specific documents detailing the many deficiencies in Kone=s work and his experience,@ he determined that Kone Alacked experience, skill, resources, and training to perform elevator maintenance services.@  Christus also contends that McCain=s affidavit is sufficient because it provides a Areasoned basis@ for his opinion.  See Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C., 180 S.W.3d 889, 893 (Tex. App.CDallas 2005, pet. denied).

We are not persuaded by Christus=s proffered distinction.  In his affidavit, McCain states no more than he has considered the relevant facts and concluded that Kone=s personnel lacked the required experience, skills, or resources to perform the services.  Significantly, he does not explain why Kone=s personnel lacked the required experience, skills, or resources to perform the services, who these personnel were, when the personnel lacked the experience (whether at the time the contract was executed or at the time of the accident), what experience, skill, or resources the personnel lacked, what the applicable industry standards were, or what experience, skill, or resources were necessary to perform the services in a good and workmanlike manner.  Moreover, McCain=s affidavit is easily distinguished from those at issue in Allbritton.  In that case, the experts= affidavits not only included a list of the documents reviewed and their ultimate conclusions, they also listed the underlying bases for their opinions.  See id. at 892B94.  In contrast, McCain failed to supply any reasoned basis for his conclusions, and without more, a reasonable person is left only to speculate about the factual basis for his conclusions.  Therefore, we conclude that the McCain affidavit is conclusory and fails to raise a genuine issue of material fact concerning whether Kone made misstatements of material fact at the time the parties entered into the contract.

In its reply brief, Christus argues that even if this court determines that McCain=s affidavit is conclusory, Christus provided other summary-judgment evidence independently establishing the same facts.  Specifically, Christus points to (1) the contract setting out Kone=s representations and providing that they were Amaterial inducements,@ (2) ThyssenKrupp work tickets that identified numerous items that Kone failed to do, and (3) Persohn/Hahn audits that identified additional deficiencies in Kone=s elevator maintenance services.  We have assumed that representations in the contract were material, but without McCain=s affidavit, there is no evidence raising a fact issue that they were false.  And the two other exhibits Christus identifies do not fill that void.  The AThyssenKrupp work tickets@ are invoices for work Thyssen/Krupp performed on Christus=s elevators between September 2003 and June 2004.  These invoices do no more than demonstrate that the elevators required maintenance and service during that time period.  They do not raise a fact issue concerning whether Kone made misrepresentations about its personnel=s experience, skills, or resources to perform the services at the time the contract was executed in 2002.  Similarly, the exhibit identified as Persohn/Hahn audits consists of what appears to be an evaluation of each of Christus=s elevators in August 2003.  The documents identify the specific elevators by number and description, and contain a chart reflecting each elevator=s Aoperating Conditions and Performance@ and listing the AItems to be corrected.@  But this exhibit does not include any summaries or other explanatory information concerning what they reflect, nor does it include any criticisms of Kone.  Reviewing these documents in the light most favorable to Christus, we conclude that they do not raise a fact issue concerning whether Kone made misstatements of material fact to Christus.

Therefore, we overrule Christus= issue.

Conclusion

We overrule Christus= issue and affirm the trial court=s judgment.

/s/      Jeffrey V. Brown

Justice

Panel consists of Justices Anderson, Frost, and Brown.     

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^[1]  Kone raised other grounds for partial summary judgment in its motions, but the trial court denied these and they are not relevant to this appeal.

^[2]  The contract=s merger clause provided as follows:  AEntire Agreement.  This Agreement and any exhibits supersede any previous contracts between the parties and constitute the entire agreement between the parties.  Both parties acknowledge that any statements or documents not specifically referenced and made a part of this Agreement shall not have any effect.@

^[3]  Christus initially argues that the trial court did not grant summary judgment on the merger clause, but instead granted summary judgment based on Arepresentations at the time of the contract@ which Christus contends is a Aseparate and mutually inconsistent ground@ from the merger doctrine.  Christus points out that Amerger@ is not mentioned in the trial court=s order, and because the merger doctrine applies to representations made prior to the time of the contractCnot Aat the time of the contract@ as the trial court stated in its orderCthe trial court=s stated ground is separate and distinct from the merger doctrine.  Thus, Christus contends, there was no reason for it to conclude that the merger doctrine was an issue on appeal because the trial court=s language gave it no notice that the merger doctrine was a basis for any summary-judgment ruling.  However, we do not read the trial court=s order so narrowly.  The merger doctrine was the only argument Kone directed to Christus= fraud claim in its traditional motion for summary judgment, and although the language the trial court used may have been imprecise, it is evident that the trial court intended to grant the traditional summary judgment on this ground.  We therefore reject Christus= contention that the trial court never ruled on the applicability of the merger doctrine.

^[4]  Kone makes this argument in its appellee=s brief rather than its motion to dismiss, but frames it as a basis for dismissing Christus= fraud claim, contending that AChristus is not entitled to the relief it requests before this Court because there were no pleadings to support this relief in the trial court.@  Therefore, we address this argument in this section of our opinion.

^[5]  Christus contends it has suffered separate and distinct injuries from Kone=s alleged fraud and breach of contract and distinguishes Chapa on this basis.

^[6]  Kone does argue that the appeal is moot because Christus introduced evidence of only economic fraud damages at the summary-judgment stage.  At this stage, however, Christus was not required to produce evidence of every potential element of damages to survive summary judgment.  See Mack Trucks v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (holding that once a party files a no-evidence motion for summary judgment under Rule 166a(i), the nonmoving party need only Apresent evidence raising an issue of material fact as to the elements specified in the motion@).  Here, Christus produced more than a scintilla of evidence of its economic damages, which was all that was required.  

^[7]  Both parties agree that the elements of a fraud claim are (1) a material misrepresentation, (2) that was either known to be false when made or was asserted without knowledge of its truth, (3) which was intended to be acted upon, (4) which was relied upon, and (5) which caused injury.  See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).  Kone did not challenge the fifth element, injury, in its no-evidence motion for summary judgment.