ACCEPTED 05-15-00375-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 6/11/2015 11:12:26 AM LISA MATZ CLERK
No. 05-15-00375-CV _______________________________ FILED IN 5th COURT OF APPEALS IN THE FIFTH COURT OF APPEALS DALLAS, TEXAS DALLAS, TEXAS 6/11/2015 11:12:26 AM _______________________________ LISA MATZ Clerk DIERS JONES & STARK, INC. Plaintiffs-Appellant
v.
COMERICA BANK Defendants-Appellee
On Appeal from the 298th District Court of Dallas County, Texas; Cause No. DC-14-06296 ____________________________
BRIEF OF APPELLANT DIERS JONES & STARK, INC. ____________________________
JOHN. C. CUNNINGHAM COUNSELOR AT LAW, P.C. State Bar No.05240150 5116 Bissonnet #367 Bellaire, Texas 77401 (713) 218-8985 Office (713) 218-8255 Facsimile (713) 703-1552 Cellular Email: cunningj1@comcast.net
ATTORNEY FOR APPELLANT DIERS, JONES & STARK, INC.
IDENTITY OF PARTIES AND COUNSEL
1 The undersigned counsel of record certifies that the following listed persons
and entities have an interest in the outcome of this case. These representations are
made in order that the judges of this Court may evaluate possible disqualification
or recusal.
A. John C. Cunningham Counselor at Law State Bar No.05240150 5116 Bissonnet #367 Bellaire, Texas 77401 (713) 218-8985 Office (713) 218-8255 Facsimile (713) 703-1552 Cellular Email: cunningj1@comcast.net ATTORNEY FOR APPELLANT DIERS, JONES & STARK, INC.
B. DIERS, JONES & STARK, INC. Ken Diers Harry Starks 9101 Lisa Lane Port Arthur, Texas 77640 APPELLANT
C. Scott Hayes State Bar No. :09280050 Vincent, Serifino, Lopez, & Jenevein 1601 Elm Street Suite 4100 Dallas, Texas, 75201 (214) 979-7400 Office (214) 979-7402 Facsimile ATTORNEY FOR APPELLEE COMERICA BANK
D. Comerica Bank
2 Charles Prack P.O. Box 650282 Dallas, Texas 75265-0282 APPELLEE
3 TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ……………………………………...2
TABLE OF CONTENTS ………………………………………………………….4
TABLE OF AUTHORITIES ………………………………………………………6
I. STATEMENT OF THE CASE…………………………………………………..9
II. STATEMENT OF THE FACTS........................................................................10
A. PROCEDURAL HISTORY ........................................................................ 10
B. FACTUAL BACKGROUND......................................................................
III. STATEMENT OF THE ISSUES......................................................................15
IV. SUMMARY OF THE ARGUMENT…………………………………………16
V. ARGUMENT AND AUTHORITIES ………………………………………....17
A. Whether DJ&S is entitled to Prevail on its Breach of Contract action against
Comerica when DJ&S complied with the contract and the contract was drafted by
Comerica and Ambiguous………………………………………………………...17
B. Whether DJ&S is entitled to pursue its claims for damages from Comerica
for fraud and negligent misrepresentation where Comerica represented to DJ&S
and DJ&S relied on the representations that Comerica wanted to seize and sell the
vessels at auction when Comerica claimed Comerica had cleared the titles to three
vessels without Comerica being in the chain of title. …………………………20
4 C. Whether DJ&S is entitled to pursue a recovery in quantum meriut when
DJ&S partially performed an express contract but was prevented from completing
that contract because of Comerica’s actions………………………………………28
D. Fact Issues Exist Precluding the Issuance of a Motion for Summary
Judgment. …………………………………………………………………………31
VI. CONCLUSION…………..…………...……………………………………....34
CERTIFICATE OF SERVICE……………………………………………………35
5 TABLE OF AUTHORITIES
Cases
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 54 Tex. Sup. Ct. J. 822, 830, 341 S.W.3d 323 (Tex. 2011) ……………………...21
Aquaplex, Inc. v. Rancho la Valencia, Inc., 297 S.W.3d 768, 774 (Tex. 2009) (per curiam)…………………………………..21
De Santis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990) ………………………………………………..21
Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex. 1977)………………………………………………...21
Federal Land Bank v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991………………………………………………….25
Truly v. Austin, 744 S.W.2d 934, 936 (Tex. 1988)…………………………………………………28
Vortt Exploration v. Chevron U.S.A., 787 S.W.2d 942, 944 (Tex. 1990)…………………………………………………29
Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102 S.W.2d 1031, 1034–1035 (1937)……………………………. 30
Colbert v. Dallas Joint Stock Land Bank of Dallas, 102 S.W.2d @ 1034–1035 ……………………………………………………….31
Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997) …………………………………………….......31
Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995)…………………………………………………32
Nixon v. Mr. Property Management Co.,
6 690 S.W.2d 546, 548-549 (Tex. 1985)…………………………………………….19
In re Estate of Price, 375 S.W.2d 900, 904 (Tex. 1964)…………………………………………………33
Mariner Financial Group v. H.G. Bossley, 79 S.W.3d 30, 32-33 (Tex. 2002)………………………………………………….33
Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557, 563 (1962)……………………………………….33
Nixon v. First State Bank of Corpus Christi, 540 S.W.2d 817, 820-821 (Tex. Civ. App.--Corpus Christi 1976), writ ref'd n.r.e. per curiam, 544 S.W.2d 378 (Tex. 1976)……………………………...32
J. R. Gray Company v. Jacobs, 362 S.W.2d 167, 171 (Tex. Civ. App.--Austin 1962, writ ref'd n.r.e………………19
O'Grady v. Gerald D. Hines, Inc., 683 S.W.2d 763, 765 (Tex. App.--Houston [14th Dist.] 1984, no writ…………....20
Stowers v. Harper, 376 S.W.2d 34, 41 (Tex. Civ. App.--Tyler 1964, writ ref'd n.r.e.)……………….. 20
Scherer v. Angell, 253 S.W.3d 777, 781 (Tex. App.—Amarillo 2007, no pet.) ...................................24
Abrams Ctr. Nat’l Bank v. Farmer, Fuqua, & Huff, P.C., 225 S.W.3d 171, 174–177 (Tex. App.—El Paso 2005, no pet.)…………………...25
Cook Consultants, Inc. v. Larson, 700 S.W.2d 231, 235 (Tex. App.—Dallas 1985, writ ref’d n.r.e.)………………...25
Walker & Associates Surveying v. Roberts, 306 S.W.3d 839, 858 (Tex. App.—Texarkana 2010, no pet.)……………………..28
Protocol Techs., Inc. v. J.B. Grand Canyon Dairy, L.P., 406 S.W.3d 609, 613–614 (Tex. App.—Eastland 2013, no pet. h.)……………….29
Bluelinx Corp. v. Tex. Constr. Sys.,
7 363 S.W.3d 623, 627 (Tex. App.—Houston [14th Dist.] 2011, no pet.)…………..29
Fulgham v. Fischer, 349 S.W.3d 153, 159 (Tex. App.—Dallas 2011, no pet.)………………………...29
Concept Gen. Contr. v. Asbestos Maintenance, 346 S.W.3d 172, 183 (Tex. App.—Amarillo 2011, pet. denied)…………………29
Smith v. Pulliam, Inc., 388 S.W.2d 329, 331 (Tex. Civ. App.—Fort Worth 1965), writ ref’d n.r.e. 394 S.W.2d 791 (Tex. 1965)…………………………….............30
Allen v. A & T Transp. Co. Inc., 79 S.W.3d 65, 68 (Tex. App.--Texarkana 2002, pet. denied)……………….........31
Jeter v. McGraw, 79 S.W.3d 211, 214 (Tex. App.--Beaumont 2002, pet. Denied)………………….31
In Matter of J.A.M., 945 S.W.2d 320, 322 (Tex. App.--San Antonio 1997, no writ)…………………..32
Bauer v. Jasso, 946 S.W.2d 552, 556 (Tex. App.--Corpus Christi 1997, no writ)………………...32
Robinson v. Chiarello, 806 S.W.2d 304, 307 (Tex. App.--Fort Worth 1991, den.)……………………….32
Casey v. Amarillo Hosp. Dist., 947 S.W.2d 301, 303-304 (Tex. App.--Amarillo 1997, den.)…………………….33
Statutes, Rules and Regulations
Tex. R. Civ. P. 166a(c) …………………………………………………………...32
Restatement (Second) of Torts § 552 …………………………………………….22
8 I.
STATEMENT OF THE CASE
This appeal arises out of the denial of a Partial Motion for Summary
Judgment filed by Appellant/Plaintiff DIERS, JONES& STARK, INC. (DJ&S) on
DJ&S’s breach of contract claim against Appellee/Defendant, Comerica Bank
(Comerica) and the partial granting of a Motion for Summary Judgment filed by
and rendered in favor of Comerica against DJ&S’s breach of contract claim on
October 17, 2014.
This appeal also arises out of the granting of Appellee/Defendant Comerica’s
Second Motion for Summary Judgment as to Appellant/Plaintiff DJ&S remaining
claims for monetary damages stemming from DJ&S’s allegations of Comerica’s
fraud, negligent misrepresentation and claims for quantum meriut on March 20,
2015. The granting of Comerica’s Second Motion for Summary Judgment resulted
in the final disposition of the case.
An appeal was perfected by DJ&S by the timely filing of a notice of appeal
on March 23, 2015.
II.
9 STATEMENT OF THE FACTS
The following facts are relevant to the issues raised on appeal.
A. PROCEDURAL HISTORY
Appellant/Plaintiff DJ&S filed suit against Appellee/Defendant, Comerica
alleging breach of contract and fraud on 06-12-2014. CR. 06. An Answer was filed
by Comerica on 07-14-2014. CR. 10. Comerica filed a Motion for Summary
Judgment on 07-21-2014. CR. 12. DJ&S filed a Motion for Partial Summary
Judgment on 07-30-1015.CR 23. Exhibits to support the Motion for Partial
Summary Judgment were filed with a Notice of filing on July 31, 2014. CR. 34
A Uniform Scheduling Order was issued on July 30, 2014. CR. 29. The
original trial judge issued an Order of Recusal on 07-30-2014. CR. 22. The case
was transferred to a new judge by an Order of Transfer on 07-30-2014. CR 32.
DJ&S filed a Response to Comerica’s Motion for Summary Judgment with
supporting evidence on 08-06-2014. CR. 46. DJ&S filed an Amended Notice of a
Hearing for its Partial Motion for Summary Judgment on August 12, 2014. CR. 66.
DJ&S filed a Supplement to its Partial Motion for Summary Judgment with
additional supporting evidence on 09-25-2014. CR. 68-82. Comerica filed a
Response to DJ&S’s Motion to Summary Judgment on 10-10-2014.CR. 89. DJ&S
filed an Amended Petition alleging new claims for quantum meriut on 09-30-2014.
CR. 83. The Court denied DJ&S’s Partial Motion for Summary Judgment on 10-
10 17-2014 CR. 112.The Court granted in part, Comerica’s Motion for Summary
Judgment on 10-17-2015. CR. 113.
A Request for a Jury Trial was made and the jury fee paid on 01-06-1015.
CR. 114. DJ&S filed a Second Amended Petition alleging a new claim for Claim
for negligent misrepresentation on 01-13-2015. CR. 117. Comerica filed an
Amended Answer on 03-10-2015. CR. 286.
Comerica filed a second Motion for Summary Judgment on 01-23-2015. CR.
125. DJ&S filed a Response to Comerica’s second Motion for Summary Judgment
with evidence on 03-11-2015. CR. 288. Comerica filed a Reply to DJ&S’s
Response to Comerica’s second Motion for Summary Judgment on 03-19-2015.
CR. 302.The Court Granted Comerica’s second Motion for Summary Judgment on
03-20-2015. CR. 305.
DJ&S filed a Notice of Appeal on 03-23-2015. CR. 306. A Bill of Costs was
filed. CR. 312. The Clerk’s record was filed as well. CR. 319.
B. FACTUAL BACKGROUND
It is and was undisputed as stated in the affidavits of Harry Stark in CR. 36-
38, CR. 288-290, 298-299, and 300, that on October 5, 2013, Diers, Jones and
Stark, Inc. (DJ&S.) accepted an assignment to assist Comerica Bank with taking
custody of the three Motor Vessels “TKL BARRIOS”, “BEVERLY G. BARRIOS”
and “CAPT. LES BARRIOS”, following bankruptcy court proceedings at the U. S.
11 District Court, Eastern District of Louisiana. DJ&S arranged for the vessels to be
transferred to the Custody of Washburn Marine Shipyard, and towed the three
vessels from Harvey, Louisiana, to Washburn Marine’s facility in Morgan City,
Louisiana, where the vessels would be hauled out of the water and blocked up
ashore, so they could be shown to prospective buyers. When DJ&S was making
the arrangements for the care and custody of the three (3) vessels, DJ&S asked
Comerica Bank if the U.S. Marshal Service would be meeting DJ&S at Harvey,
Louisiana, to legally seize the three (3) vessels, as DJ&S had seen in the past
following a bankruptcy. Id. The individuals at DJ&S are not lawyers. CR. 300.
Comerica advised that they did not want the U. S. Marshal Service involved, due to
the expense of their fees. CR. 288 and 300. Additionally, Comerica went on to
advise DJ&S that the vessel's titles had already been cleared of any and all liens by
the bankruptcy Court. Comerica further advised that they wanted to be able to sell
the three (3) BARROIS vessels without having Comerica Bank listed on any of the
titles. Comerica advised DJ&S that when the vessels would be sold, the titles
would be changed from the previous owner (BARROIS - Five B's) directly to the
new buyer.
Following the completion of the assignment to arrange for the transfer of the
vessels to the care and custody of Washburn Marine Shipyard, Morgan City,
Louisiana, Comerica Bank requested DJ&S prepare a contract for DJ&S to solicit
12 bids for Comerica Bank to sell the three (3) subject vessels. DJ&S prepared a
contract and sent it to Comerica Bank, however Comerica Bank rejected DJ&S’s
proposed contract. Rather, Comerica Bank had their attorneys draft a new contract
and submit the new contract to DJ&S for acceptance and signature. CR. 37.
DJ&S reviewed and signed the new contract that was prepared by Comerica
Bank's attorneys, on November 13, 2013. CR. 39-41, to solicit bids by bid request
letter, email, internet and publications. Comerica Bank agreed to pay DJ&S a 12%
commission for the Comerica Bank accepted bids. CR. 40 para. 11.
DJ&S began soliciting bids on December 9, 2013 and opened the bids on
January 10, 2014. After reviewing the bids, DJ&S notified Comerica Bank of the
highest bidders. After several telephone conversations, Comerica Bank instructed
DJ&S to attempt to obtain higher bids from the highest bidders. DJ&S was able to
substantially increase the amount of two of the bids. CR. 37. Upon getting the bids
increased, DJ&S forwarded the revised elevated bid amounts to Comerica, who
immediately accepted the higher bids. DJ&S was then instructed by Comerica to
contact the highest bidders and inform them that their bids were accepted, which
DJ&S did. Id. The bids accepted by Comerica are as follows:
M/V “BEVERLY G. BARRIOS” - $ 355,000.00,
M/V “CAPT. LES BARRIOS” - $ 226,000.00; and
M/V “TKL BARRIOS” - $ 90,000.00.
13 On January 13, 2013, Comerica Bank requested that the vessel buyer(s) wire
their funds to Comerica Bank so Comerica Bank could complete the transfer of
ownership and bill of sale to the buyers. With Comerica’s acceptance of the bids,
DJ&S met their contractual obligations as per the Comerica contract such that
DJ&S was and is entitled to its full commissions of 12% of$671,000 or
$80,520.00. Id.
Despite accepting the three (3) bids, Comerica Bank delayed the completion
of the sales through April 2, 2014 by not being able to furnish clean unencumbered
titles for the three (3) vessels. Due to Comerica Bank’s delays, on or about
February 1, 2014, the buyer of the “TKL BARRIOS” withdrew their bid. The
buyer of the “BEVERLY G. BARRIOS” and “CAPT. LES BARRIOS” also
withdrew their bids on April 22, 2014 due to Comerica Bank’s delays and inability
to furnish clean unencumbered titles. CR. 37-38.
. Following these new developments, Comerica Bank made arrangements for
the three (3) Barrios vessels to be seized and sold by the U. S Marshal Service. CR.
38. On June 4, 2014, Comerica Bank attended the federal marshal sale in
Lafayette, Louisiana. Comerica Bank was the buyer of the three (3) vessels. Upon
information and belief, Comerica Bank is believed to have obtained the three (3)
vessels for $655,000.00, which is $16,000.00 less than DJ&S had the vessels sold
14 for. CR. 38. As a result of Comerica’s delays, DJ&S also incurred post bid
acceptance fees and costs to date totaling $5,385.00. CR. 38, 42-45.
III.
STATEMENT OF THE ISSUES
A. Whether DJ&S is entitled to Prevail on its Breach of Contract action
against Comerica when DJ&S complied with the contract and the contract
was drafted by Comerica and Ambiguous.
B. Whether DJ&S is entitled to pursue its claims for damages from
Comerica for fraud and negligent misrepresentation where Comerica
represented to DJ&S and DJ&S relied on the representations that Comerica
wanted to seize and sell the vessels at auction when Comerica claimed
Comerica had cleared the titles to three vessels without Comerica being in the
chain of title.
C. Whether DJ&S is entitled to pursue a recovery in quantum meriut
when DJ&S partially performed an express contract but was prevented from
completing that contract because of Comerica’s actions.
D. Fact Issues Exist Precluding the issuance of a Motion for Summary
Judgment
15 IV.
SUMMARY OF THE ARGUMENTS
The District Court erred in denying Appellant/Plaintiff DJ&S’s Partial
Motion for Summary Judgment on DJ&S’s breach of contract claim against
Appellee/Defendant Comerica on October 17, 2014, when DJ&S complied with
the contract between DJ&S and Comerica and the contract was ambiguous and
drafted by Comerica. The District Court erred in granting Appellee/Defendant,
Comerica’s Motion for Summary Judgment rendered in favor of
Appellee/Defendant, Comerica, against Appellant/Plaintiff DJ&S on October 17,
2015 when the District Court found the contract between DJ&S and Comerica and
drafted by Comerica was unambiguous and ruled in favor of Comerica. The
District court also erred when it granted Comerica’s Motion for Summary
Judgment rendered in favor of Appellee/Defendant, Comerica, against
Appellant/Plaintiff DJ&S remaining claims on March 20, 2015 when evidence
existed to support DJ&S’s causes of action against Comerica and numerous fact
issues existed as to the claims brought by DJ&S against Comerica.
ARGUMENT AND AUTHORITIES
16 A. Whether DJ&S is entitled to Prevail on its Breach of Contract action
against Comerica when DJ&S complied with the contract and the contract
DJ&S filed a Motion for summary Judgment against Comerica claiming the
plain wording of the agreement shows that DJ&S earned its 12% commission from
Comerica. CR. 28, 34-45. Specifically the contract states in paragraph 11 that,
”Comerica agrees to pay DJ&S for the services rendered a commission of
twelve percent (12%) of the final bid price from the consummated sale of the
vessels accepted by Comerica.” CR. 40.
The highest bid prices were:
M/V “BEVERLY G. BARRIOS” - $ 355,000.000
M/V “CAPT. LES BARRIOS” - $ 226,000.00
M/V “TKL BARRIOS” - $ 90,000.00. CR. 25 and 37.
The total of the highest bids is $671,000. Id. DJ&S argued that it should be
entitled to 12% of the total of the highest bids or $80,520. It should be undisputed
that Comerica accepted the bids, however the affidavit of Harry Starks, attached as
evidence to the Motion for Summary Judgement also evidences these facts. CR.
37. Comerica took the position that the relevant sentence in the contract is
controlled and altered by the wording “from the consummated sale” and the next
sentence which states, “The full amount shall be due and payable to DJ&S from
17 the proceeds of the sale of the vessel at the Bid Sale.” DJ&S argued the terms
“from the consummated sale” and the second sentence of the contract only
describe where the money to pay DJ&S may come from, not when the commission
is fully earned by and due to DJ&S. CR. 26. Such should be decided by the
wording “Comerica agrees to pay DJ&S for the services rendered a
commission of twelve percent (12%) of the final bid price. . . ..”. Id.
For the District Court to hold that the terms “consummated sale of the
vessels” and the second sentence of the contract rules over the wording “Comerica
agrees to pay DJ&S for the services rendered a commission of twelve percent
(12%) of the final bid price. . . ..” would result in DJ&S being defrauded by
Comerica, in allowing DJ&S to do the work without any pay from Comerica. Such
should not be the result or Texas law, particularly since Comerica’s attorney’s
drafted the contract (CR. 36) and it was Comerica’s failure to provide clean titles,
not any fault of DJ&S that resulted in the sales failing CR. 36 and 38. This is
particularly true since DJ&S instructed Comerica how to obtain and notified
Comerica of the common practice for obtaining clear, clean titles of vessels after a
bankruptcy. CR. 36. It was Comerica’s decision not to go through a U. S. Marshal
Service sale even after having their attorney’s review the matter and draw up the
Comerica contract! DJ&S are not attorney’s and did not know the legal
18 significance of a marshal sale, only that DJ&S had seen it used in the past. CR. 292
and 300.
Contract language is considered unambiguous if it is susceptible to only one
meaning after applying the pertinent rules of construction. In such cases, the
construction of the contract is a matter of law and extrinsic evidence of the
intentions of the parties or of general practice or custom is not necessary or proper.
Nixon v. First State Bank of Corpus Christi, 540 S.W.2d 817, 820-821 (Tex. Civ.
App.--Corpus Christi 1976) , writ ref'd n.r.e. per curiam, 544 S.W.2d 378 (Tex.
1976) ; J. R. Gray Company v. Jacobs, 362 S.W.2d 167, 171 (Tex. Civ. App.--Austin
1962, writ ref'd n.r.e.). Here, the relevant sentence in the contract is unambiguous
and only made ambiguous by the inclusion of the second part of the sentence and
the references to a sale in sentence two. The issue of whether a contract is
ambiguous is, itself, a question of law O'Grady v. Gerald D. Hines, Inc., 683
S.W.2d 763, 765 (Tex. App.--Houston [14th Dist.] 1984, no writ. If there is doubt
regarding the construction of a contract, as it is here, the doubt must be resolved
against the party that drafted it. Stowers v. Harper, 376 S.W.2d 34, 41 (Tex. Civ.
App.--Tyler 1964, writ ref'd n.r.e.). Here the party that drafted the contract, with the
assistance of counsel, was Comerica, not DJ&S.
B. Whether DJ&S is entitled to pursue claims for damages from Comerica
for fraud and negligent misrepresentation where Comerica represented to
19 DJ&S and DJ&S relied on the representations that Comerica had cleared the
titles to three vessels without Comerica being in the chain of title such that
Comerica wanted to seize and sell the vessels at auction.
DJ&S brought claims against Comerica for fraud, negligent and intentional
misrepresentation CR. 120-121. The Trial Court erred in granting Comerica’s
Motion for Summary and dismissing DJ&S’s actions against Comerica for fraud,
negligent and intentional misrepresentation when DJ&S presented evidence to
support the claims and fact issues existed as to the claims 298-300, 305.
Comerica claimed in its Second Motion for Summary Judgment that DJ&S was not
entitled to bring a fraud or misrepresentation claims because DJ&S knew
Comerica’s misrepresentations were false. CR. 125. Such is not true and was
rebutted with evidence. CR. 300.
1. Fraud Claim
Texas law provides that the following actions constitute actionable fraud
based on misrepresentation:
(1) a material representation was made;
(2) the representation was false;
(3) when the representation was made, the speaker knew it was false or
made it recklessly without any knowledge of the truth and as a positive assertion;
20 (4) the speaker made the representation with the intent that the other party
should act upon it; (5) the party acted in reliance on the representation; and
(5) the party thereby suffered injury; Italian Cowboy Partners, Ltd. v.
Prudential Ins. Co. of Am., 54 Tex. Sup. Ct. J. 822, 830, 341 S.W.3d 323 (Tex.
2011) ; Aquaplex, Inc. v. Rancho la Valencia, Inc., 297 S.W.3d 768, 774 (Tex.
2009) (per curiam); De Santis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex.
1990) ; Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex. 1977).
In response to Comerica’s Motion for Summary Judgment and the earlier
Summary Judgment:
DJ&S presented evidence that Comerica represented to DJ&S that the three
vessel's titles had already been cleared of any and all liens by the bankruptcy
Court. CR. 62
DJ&S presented evidence that Comerica further advised that they wanted to
be able to sell the three (3) BARROIS vessels without having Comerica Bank
listed on any of the titles. Id.
DJ&S presented evidence that Comerica advised DJ&S that when the
vessels would be sold, the titles would be changed from the previous owner
(BARROIS - Five B's) directly to the new buyer. Id.
21 DJ&S presented evidence that Comerica represented that Comerica had
marketable titles (vessels that could be sold at a public auction) to sell the three
vessels when it did not. Id.
DJ&S showed that fact issues exist as to whether Comerica knew that it did
not have marketable titles. CR. 289.
DJ&S presented evidence that DJ&S knew that Comerica wanted to seize
and sell the vessels without Comerica being in the chain of title. CR. 64.
DJ&S presented evidence that although DJ&S knew that Comerica’s
approach was different from what DJ&S had seen in the past, the effect of
Comerica’s approach was unknown to DJ&S. CR. 300.
DJ&S showed that fact issues exist as to whether Comerica made false
allegations to get DJ&S to enter into the contract Comerica drafted and to have
DJ&S first seize and then auction three vessels for sale. CR. 63.
DJ&S presented evidence that DJ&S relied on the misrepresentations by
Comerica and entered into the contract with Comerica. Id.
DJ&S presented evidence that DJ&S suffered monetary damages as a result
of Comerica’s actions. CR, 64.
In response to Comerica’s Motion for Summary judgment and the earlier
Summary Judgment, DJ&S presented evidence to support the following issues and
22 that at a minimum fact issues exist to the following issues with respect to DJ&S’s
fraud cause of action:
(1) whether material representations were made by Comerica; CR. 62
(2) whether the representations made by Comerica were false; Id.
(3) whether Comerica knew the representations it made were false or made
them recklessly without any knowledge of the truth and as a positive assertion; Id.
(4) whether DJ&S knew the representations Comerica made were false or
made them recklessly without any knowledge of the truth and as a positive
assertion; CR. 300.
(5) whether Comerica made the representations with the intent that DJ&S
should act upon them; CR. 63
(6) whether DJ&S acted in reliance on the representations; Id. and
(7) whether DJ&S thereby suffered injury. CR. 64
2. Negligent Misrepresentation
DJ&S brought claims against Comerica for negligent misrepresentation. CR.
121. The Trial Court erred in granting Comerica’s Motion for Summary and
dismissing DJ&S’s actions against Comerica for negligent misrepresentation when
DJ&S presented evidence to support its claims and fact issues existed as to the
claims. CR. 298-300 and 305.
23 The courts of Texas have recognized the independent tort of negligent
misrepresentation, but have restricted it to the business context such as the business
that occurred between Comerica and DJ&S here.
(1) The defendant made the representation in the course of its business
or in a transaction in which it has a pecuniary interest;
(2) The defendant supplied false information for the guidance of
others in their business. See Scherer v. Angell, 253 S.W.3d 777, 781
(Tex. App.—Amarillo 2007, no pet.) (misrepresentation must relate to
some existing fact, not promise or statement as to future conduct);
(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.
The above elements of this tort can be found in Federal Land Bank v.
Sloane, 825 S.W.2d 439, 442 (Tex. 1991) and Restatement (Second) of Torts § 552:
See Abrams Ctr. Nat’l Bank v. Farmer, Fuqua, & Huff, P.C., 225 S.W.3d 171, 174–
177 (Tex. App.—El Paso 2005, no pet.) (liability for negligent misrepresentation
requires that defendant have actual knowledge of third party’s reliance on
information). The identification of the persons to whom a duty is owed is made by
scrutinizing the particular risk to which the victim was subjected, which involves
24 weighing several factors, including (1) the extent to which the transaction was
intended to affect the plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the
closeness of the connection between the defendant’s conduct and the injury
suffered; and (4) the potential liability. See Cook Consultants, Inc. v. Larson, 700
S.W.2d 231, 235 (Tex. App.—Dallas 1985, writ ref’d n.r.e.).
In response to Comerica’s Motion for Summary Judgment and the earlier
DJ&S presented evidence that Comerica represented to DJ&S that the three
subject vessel’s titles had already been cleared of any and all liens by the
bankruptcy Court. CR. 62
DJ&S presented evidence that Comerica advised DJ&S that Comerica
wanted to be able to sell the three (3) BARROIS vessels without having Comerica
Bank listed on any of the titles. Id.
DJ&S presented evidence that Comerica advised DJ&S that when the
vessels would be sold, the titles would be changed from the previous owner
DJ&S presented evidence that Comerica represented to DJ&S that Comerica
had marketable titles to the three (3) BARROIS vessels (vessels that could be sold
at a public auction) when Comerica did not. Id.
25 DJ&S showed that fact issues exist as whether Comerica knew or should
have known that Comerica it did not have marketable titles. CR. 289.
DJ&S presented evidence that the approach Comerica was taking was
different from what DJ&S had seen in the past. CR. 300
DJ&S presented evidence that the effect of Comerica’s approach was
unknown to DJ&S. Id.
DJ&S showed that fact issues existed that Comerica made false allegations
to get DJ&S to enter into the contract Comerica drafted and to have DJ&S first
seize and then auction the three vessels for sale. CR. 63.
DJ&S presented evidence that DJ&S relied on the misrepresentations by
DJ&S presented evidence that DJ&S has suffered monetary damages as a
result of Comerica’s actions. CR. 64
In response to Comerica’s Motion for Summary judgment and the earlier
Summary Judgment DJ&S presented evidence to support the following issues and
that at a minimum fact issues exist to the following issues with respect to DJ&S’
negligent misrepresentation cause of action:
DJ&S showed that issues exist with respect to this cause of action:
26 (1) Whether Comerica made the representations to DJ&S in the course
of its business or in a transaction in which it had a pecuniary interest;
CR. 62.
(2) Whether Comerica supplied false information to DJ&S for the
guidance of DJ&S in its business; Id.
(3) Whether Comerica did not exercise reasonable care or competence
in obtaining or communicating the information to DJ&S; Id and 64.
(4) whether DJ&S knew the representations Comerica made were
false or made them recklessly without any knowledge of the truth and
as a positive assertion; CR. 63-64 and
(5) Whether DJ&S suffered pecuniary loss by justifiably relying on
the representation. CR. 64.
C. Whether DJ&S is entitled to pursue a recovery in quantum
meriut when DJ&S partially performed an express contract but was
prevented from completing that contract because of Comerica’s actions.
DJ&S brought claims in quantum meriut against Comerica for recovery
for the reasonable value of the services DJ&S rendered to Comerica and
Comerica accepted. CR. 120. The Trial Court erred in granting Comerica’s
Motion for Summary and dismissing DJ&S’s actions against Comerica for
recovery for the reasonable value of the services DJ&S rendered to
27 Comerica and Comerica accepted when DJ&S presented evidence to
support the claims and fact issues existed as to the claims. CR. 298-300.
Comerica argued that Texas Law does not allow for recovery in
quantum meriut when there is an express contract. CR. 134. However,
DJ&S responded to Comerica’s Motion for Summary Judgment by showing
that Texas law does provide a quantum meriut cause of action, such as
DJ&S’s, is allowed when a plaintiff, such as DJ&S has partially performed
an express contract but is prevented from completing that contract because
of the defendant’s, such as Comerica’s, breach. CR. 294-295. See Truly v.
Austin, 744 S.W.2d 934, 936 (Tex. 1988); Walker & Associates Surveying v.
Roberts, 306 S.W.3d 839, 858 (Tex. App.—Texarkana 2010, no pet.).
Under Texas law, a plaintiff asserting a quantum meruit claim based on a
contract must establish that:
1. Valuable services were rendered or materials were furnished;
2. The services were rendered for the recipient sought to be charged;
3. The services and materials were accepted by the person sought to be
charged; and
4. The services and materials were accepted under such circumstances
as reasonably notified the defendant/recipient that the plaintiff, in
performing the services, expected to be paid by the recipient.
28 The above cause of action can be found in Vortt Exploration v.
Chevron U.S.A., 787 S.W.2d 942, 944 (Tex. 1990); Protocol Techs., Inc.
v. J.B. Grand Canyon Dairy, L.P., 406 S.W.3d 609, 613–614 (Tex. App.
—Eastland 2013, no pet. h.); Bluelinx Corp. v. Tex. Constr. Sys., 363
S.W.3d 623, 627 (Tex. App.—Houston [14th Dist.] 2011, no pet.);
Fulgham v. Fischer, 349 S.W.3d 153, 159 (Tex. App.—Dallas 2011, no
pet.); Concept Gen. Contr. v. Asbestos Maintenance, 346 S.W.3d 172,
183 (Tex. App.—Amarillo 2011, pet. denied).
1. DJ&S was prevented from completing the contract by
Comerica’s actions.
In its response to Comerica’s Motion for Summary Judgment, DJ&S showed
that fact issues existed as to whether DJ&S was prevented from fully performing
because Comerica had not cleared the titles to the three (3) BARROIS vessels in
bankruptcy, thus resulting in the winning bidders eventually withdrawing their
bids. CR. 294.
Accordingly fact issues exist as to:
1. Whether Comerica had properly cleared the titles to the three (3)
BARROIS vessels in bankruptcy;
2. Whether Comerica’s actions prevented DJ&S from fully performing.
2. Comerica accepted the services provided by DJ&S.
29 DJ&S also showed in its Response to Comerica’s Motion for Summary
Judgment, that Texas law only requires that a defendant, such as Comerica,
either accepted the services or accepted the benefit of the services. CR. 294-
295. Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102
S.W.2d 1031, 1034–1035 (1937). An example of the acceptance of services
may consist of work performed for the defendant/recipient of the services with
the recipient’s knowledge and consent. Smith v. Pulliam, Inc., 388 S.W.2d 329,
331 (Tex. Civ. App.—Fort Worth 1965), writ ref’d n.r.e. 394 S.W.2d 791 (Tex.
1965).
Comerica had argued that Texas law requires that the defendant
benefited from the services provided. This is not the law. There is no
requirement in Texas law, that the defendant benefited from the services
provided. Colbert v. Dallas Joint Stock Land Bank of Dallas, 102 S.W.2d @
1034–1035.
D. FACT ISSUES EXIST PRECLUDING THE ISSUANCE OF A
MOTION FOR SUMMARY JUDGMENT
In order for a Movant, such as Comerica, to obtain a Summary Judgment
they must establish that no genuine issue of fact exists, justifying a "take-nothing"
judgment as a matter of law, by negating at least one of the key elements of each of
the claimant's theories of recovery. See Science Spectrum, Inc. v. Martinez, 941
30 S.W.2d 910, 911 (Tex. 1997); Allen v. A & T Transp. Co. Inc., 79 S.W.3d 65, 68
(Tex. App.--Texarkana 2002, pet. denied); Jeter v. McGraw, 79 S.W.3d 211, 214
(Tex. App.--Beaumont 2002, pet. Denied. To prevail on a motion claiming
entitlement to summary judgment as a matter of law, the movant must offer
admissible evidence proving that no genuine issue of material fact exists and that
the movant is entitled to judgment as a matter of law on the issues expressly set out
in the motion. Tex. R. Civ. P. 166a(c). Such is not the case here. Evidence was
presented by DJ&S, not Comerica, that numerous fact issues exist which supported
DJ&S’s causes of actions.
This Appeals Court analyzing the evidence must apply the same principles in
assessing the movant's entitlement to summary judgment. See In Matter of J.A.M.,
945 S.W.2d 320, 322 (Tex. App.--San Antonio 1997, no writ). Courts have stated
these principles include the following:
(1) Any fact sought to be established (or negated) conclusively must be one
ordinarily subject to absolute verification or denial. Matters such as intent,
reliance, and reasonable care usually cannot be proved conclusively. See
Bauer v. Jasso, 946 S.W.2d 552, 556 (Tex. App.--Corpus Christi 1997, no
writ). Emphasis added.
(2) Evidence favoring the non-movant will be taken as true, with
reasonable inferences indulged and doubts resolved in the non-movant's
31 favor. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173
(Tex. 1995), and Nixon v. Mr. Property Management Co., 690 S.W.2d 546,
548-549 (Tex. 1985). Emphasis added.
(3) Evidence favoring the movant will not be considered if it is
controverted by the non-movant. See Robinson v. Chiarello, 806 S.W.2d
304, 307 (Tex. App.--Fort Worth 1991, den.) Stated another way,
uncontroverted evidence favoring the movant will be taken as true. See
Casey v. Amarillo Hosp. Dist., 947 S.W.2d 301, 303-304 (Tex. App.--
Amarillo 1997, den.). Emphasis added. This is the case here.
The Texas Supreme Court has often said that caution should be used
when considering summary disposition of all or part of a litigant's cause of
action or defense. The Court has said that summary judgment procedure is not
intended to deprive litigants of their right to a full hearing on the merits of any
real issue of fact, if there is some doubt as to the facts, summary judgment
should not be rendered, despite the desire for prompt disposal of judicial
business. See In re Estate of Price, 375 S.W.2d 900, 904 (Tex. 1964); See e.g.,
Mariner Financial Group v. H.G. Bossley, 79 S.W.3d 30, 32-33 (Tex. 2002).
The Court has explained that summary judgment is not intended to be a trial by
depositions and affidavits, rather, it is a device to determine whether genuine
32 issues exist for determination by the trier of fact. See Gaines v. Hamman, 163
Tex. 618, 358 S.W.2d 557, 563 (1962).
Here, DJ&S showed that DJ&S was entitled to a commission or in the
alternative that genuine facts exist as to whether the contract between DJ&S
and Comerica was drafted by Comerica and was ambiguous. Further, DJ&S
showed that numerous genuine facts existed as to whether Comerica
committed fraud and negligent misrepresentation as well as DJ&S’s quantum
meriut claim so as to preclude Summary Judgment. Also, no evidence was
presented by Comerica or to rebut DJ&S assertion that DJ&S did not
know Comerica’s representations were false. Further, there is no
requirement under Texas law that Comerica had to benefit from DJ&S’s
services for DJ&S to prevail in a quantum meriut claim, only that Comerica
accepted the services.
VI.
CONCLUSION
Based on the reasons and law set forth above, Appellant/Plaintiff DIERS,
JONES& STARK, INC. (DJ&S) requests the Judgments of the Trial Court be
reversed in all respects and that a judgment be rendered in Appellant/Plaintiff
DIERS, JONES& STARK, INC. (DJ&S) favor and the case be remanded back to
33 the District Court for a determination of attorney’s fees to be awarded DJ&S, if
any, or in the alternative, that this entire case be remanded for a trial on the merits.
Respectfully submitted,
S/John C. Cunningham__ John C. Cunningham Counselor at Law State Bar No.05240150 5116 Bissonnet #367 Bellaire, Texas 77401 (713) 218-8985 Office (713) 218-8255 Facsimile (713) 703-1552 Cellular Email: cunningj1@comcast.net COUNSEL FOR APPELLANT DIERS, JONES & STARK, INC.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument and the clerk’s record were served in compliance with the Texas Rules of Appellant Procedure on this 11th day of June 2015.
Scott Hayes Via email and overnight Vincent, Serifino, Lopez, & Jenevein mail 1601 Elm Street Suite 4100
34 Dallas, Texas, 75201
S/ John C. Cunningham______ John C. Cunningham