Opinion
No. 01-03-00272-CV
Opinion Issued March 24, 2005.
On Appeal from the 85th District Court, Brazos County, Texas, Trial Court Cause No. 46961-85-CV.
Panel consists of Justices NUCHIA, JENNINGS, and ALCALA.
MEMORANDUM OPINION
Appellants, G.W. McKinzie Company (McKinzie Co.) and The Air Conditioning Store, Inc. (collectively McKinzie), appeal from a final summary judgment rendered in favor of appellees, Raytheon Appliances, Inc. f/k/a Amana Refrigeration, Inc. d/b/a Amana Southwest and Amana Refrigeration Southwest, Amana Company, L.P., and Goodman Holding Company (collectively "Amana"). This case concerns McKinzie's assertion of various causes of action that alleged that Amana breached certain agreements it made with McKinzie relating to McKinzie's services for Amana as a heating and air conditioning dealer. In three issues, McKinzie contends that the trial court erred by granting Amana's no-evidence motions for summary judgment because it presented sufficient evidence on all of its causes of action in response to the motion, and by granting Amana's traditional motion for summary judgment because (1) McKinzie raised a fact issue as to each cause of action, (2) Amana did not negate at least one necessary element of each cause of action, and (3) Amana did not establish an affirmative defense as to each cause of action. We affirm in part and reverse in part.
Raytheon Appliances, Inc. f/k/a Amana Refrigeration, Inc. d/b/a Amana Southwest and Amana Refrigeration Southwest, Amana Company, L.P., and Goodman Holding Company are all named separately as appellees. The parties, however, have stipulated that Amana Company, L.P. is the successor in interest to Raytheon Appliances, Inc., and Goodman Holding Company is the general partner of Amana Company, L.P. Therefore, we will refer to the appellees collectively as Amana.
Background
In 1991, McKinzie Co. entered into a written agreement with Amana. This agreement provided that McKinzie Co. was an authorized Amana dealer. From 1991 through 1993, McKinzie Co. purchased the following from Amana: heating and air-conditioning equipment, repair parts, technical support, and credit services for business in the Harris and Montgomery county areas. McKinzie Co. also sold many "Asure Extended Service Plan" agreements (Asure warranties) to its customers. By extending Amana's manufacturer's warranty on purchased Amana equipment, the Asure warranty entitled the bearer of the Asure warranty to free replacement parts and related service from Amana at no additional cost. In 1993, McKinzie Co. and Amana mutually terminated the dealership agreement.
In 1996, McKinzie Co. sold the majority of its assets to Jerry Russell and signed a noncompete agreement stating that McKinzie Co. would not compete with Russell in Harris and Montgomery Counties for a period of three years. Gary McKinzie assigned most of McKinzie Co.'s remaining assets to The Air Conditioning Store, which he opened for business in the Bryan/College Station area. In April 1997, The Air Conditioning Store signed a "Dealer Program Summary" and became an Amana dealer. On September 8, 1997, Amana terminated the business relationship with The Air Conditioning Store effective September 20, 1997.
Procedural History
McKinzie filed an original petition and four amended petitions. The Fourth Amended Original Petition, which is the last petition McKinzie filed before the final summary judgment motion was granted, asserted causes of actions as follows: (1) "The Asure Warranty" claims for breach of contract, fraud, fraudulent inducement, negligent misrepresentation, violations of the Deceptive Trade Practices and Consumer Protection Act (DTPA), breach of fiduciary duty, and violations of the duty of good faith and fair dealing; (2) "The Dealership Agreement" claims for breach of contract, fraud, negligent misrepresentation, DTPA violations, and breach of fiduciary duty; (3) The "Financing Services" claims for breach of fiduciary duty, as well as allegations of DTPA violations and breach of contract. McKinzie also asserted claims against Amana for tortious interference with existing and prospective contracts and tortious interference with existing and prospective business relations.
See TEX. BUS. COM. CODE ANN. § 17.46 (Vernon 2002 Supp. 2004-2005).
On appeal, McKinzie has not complained of the trial court's rendering summary judgment concerning the Financing Services claims for DTPA violations and breach of contract, and has therefore waived any error. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998); Vawter v. Garvey, 786 S.W.2d 263, 263 (Tex. 1990); Allright, Inc. v. Pearson, 735 S.W.2d 240, 240 (Tex. 1987) (holding that failing to present point or argument waived right to complain of error and that appeals court will err by reversing on that ground in absence of properly assigned error).
After Amana filed a series of motions for summary judgment, which were followed by McKinzie's responses, the trial court signed a "Final Summary Judgment" in favor of Amana, disposing of all claims and all parties. The trial court's order rendering final judgment in favor of Amana granted motions that Amana entitled, "Motion for Partial Summary Judgment" "Supplement to Motion for Partial Summary Judgment"; and "Second Supplement to Motion for Partial Summary Judgment." The order does not specify the grounds on which the summary judgment motions were granted. Amana's "Supplement to Motion for Partial Summary Judgment" requested a traditional summary judgment and a no-evidence summary judgment on McKinzie's causes of action relating to the Asure Warranties and the Dealership Agreement. See TEX. R. CIV. P. 166a(c), (i). Amana's "Second Supplement to Motion for Partial Summary Judgment" requested a no-evidence summary judgment by asserting that McKenzie had no evidence of certain elements necessary for causes of action related to financing services and credit reporting claims. See TEX. R. CIV. P. 166a(i).
Before signing the final summary judgment order, the trial court signed a partial summary judgment order in favor of Amana that ordered McKinzie to take nothing of and from Amana on the financing services and credit reporting causes of action alleged in McKinzie's First Amended Original Petition. Because McKinzie reasserted the financing services causes of action that were alleged in his First Amended Original Petition in his Fourth Amended Original Petition, we address his complaints concerning those financing causes of action under that section of this opinion. McKinzie has not complained, however, of the trial court's ruling in Amana's favor in its partial summary judgment order concerning the "Credit Reporting" causes of action that included claims for violations of DTPA and the Fair Credit Reporting Act, libel, and slander. Therefore, any error concerning the trial court's summary judgment ruling on McKinzie's "Credit Reporting" claims is waived. See Pat Baker Co., 971 S.W.2d at 450; Vawter, 786 S.W.2d at 263; Allright, Inc., 735 S.W.2d at 240.
Amana's "Motion for Partial Summary Judgment" requested a traditional summary judgment and a no-evidence summary judgment on McKinzie's "live pleadings" in "Plaintiff's Original Petition." See TEX. R. CIV. P. 166a(c), (i). Amana asserted that there was no evidence on one or more essential elements that were specifically identified concerning the breach of contract and breach of warranty causes of action, the DTPA claims, the Magnuson-Moss Warranty Act Claims, the Debt Collection Practices Act, the Intentional Infliction of Emotional Distress, Fraud, Tortious Interference with Contractual Relations, Defamation, and Invasion of Privacy. McKinzie abandoned many of the causes of action asserted in his original petition from the later filed amended original petitions and has not complained on appeal of the trial court's actions in granting final summary judgment concerning these claims not reasserted in his Fourth Amended Original Petition. Thus, any error has been waived in the trial court's granting final summary judgment concerning these claims asserted in McKinzie's original petition that were not reasserted in his Fourth Amended Original Petition. See Pat Baker Co., Inc., 971 S.W.2d at 450; Vawter, 786 S.W.2d at 263; Allright, Inc., 735 S.W.2d at 240.
Standards of Review
A party moving for a traditional summary judgment must establish that no material fact issue exists, and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); M.D. Anderson Hosp. Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In determining whether a disputed, material fact issue precludes summary judgment, the court must take evidence favorable to the nonmovant as true and indulge every reasonable inference in favor of the nonmovant. Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985). If there is no genuine issue of material fact, judgment should issue as a matter of law. Haase v. Glazner, 62 S.W.3d 795, 797 (Tex. 2001). Because the rendition of summary judgment is a question of law, we review the trial court's decision de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
When, as here, the trial court's summary judgment order does not specify the ground or grounds on which summary judgment was rendered, we will affirm if any of the grounds stated in the motion is meritorious. See Mayes v. Goodyear Tire and Rubber Co., 144 S.W.3d 50, 55 (Tex.App.-Houston [1st Dist.] 2004, no pet. h.) (citing Ernst Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001)).
After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i); Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 722 (Tex.App.-Houston [1st Dist.] 2003, no pet.). The motion must specify which essential elements of the opponent's claim or defense lack supporting evidence. Roventini, 111 S.W.3d at 722. Once the party seeking the no-evidence summary judgment files a proper motion, the respondent must bring forth evidence that raises a fact issue on the challenged elements. Id. The party with the burden of proof at trial thus has the burden of proof in the summary judgment proceeding. Id. If the respondent does not produce more than a scintilla of evidence to raise a genuine issue of material fact on the challenged element or elements, the trial court must grant the motion. Id. To defeat a no-evidence motion for summary judgment, the respondent is not required to marshal its proof in its response and need only point out evidence that raises a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i); Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002).
McKinzie has never disputed that an adequate time for discovery had passed. See TEX. R. CIV. P. 166a(i).
The Asure Warranty Claims
When Amana filed its summary judgment motion, "The Asure Warranty" claims asserted (A) breach of contract, (B) fraud, (C) fraudulent inducement (D) negligent misrepresentation, (E) violations of the DTPA, and (F) tortious interference with existing and prospective contracts, and tortious interference with existing and prospective business relations. After Amana filed its summary judgment motion, McKinzie added claims for breach of fiduciary duty and violations of the duty of good faith and fair dealing. A. Breach of Contract Claim
All claims for tortious interference will be addressed together in a section entitled "Tortious Interference" that appears following the section entitled "Dealership Agreement Claims."
All claims for breach of fiduciary duty and violations of the duty of good faith and fair dealing will be addressed together in a section entitled "Other Claims" that appears following the section entitled "Tortious Interference."
In its breach of contract claim, McKinzie contends that, during the parties' first business relationship (entered into in 1991 and terminated in 1993), in an oral contract and in three written documents — the Asure warranties, the Dealer Sales Manual, and the Amana Advantage Asure Program brochure — Amana formed an agreement with McKinzie to provide McKinzie with Amana parts for the life of the outstanding Asure warranties that McKinzie sold to its customers. McKinzie further contends that Amana breached those agreements by refusing to provide warranty parts and service payments to McKinzie as promised in those agreements. Amana responds that no written agreement between McKinzie and Amana existed, and that any oral agreement violated the Statute of Frauds and was therefore unenforceable.
1. Written Representations
The essential elements of a breach of contract action are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages sustained by the plaintiff as a result of the breach. Hussong v. Schwan's Sales Enters., Inc., 896 S.W.2d 320, 326 (Tex.App.-Houston [1st Dist.] 1995, no writ).
Summary judgment is appropriate in cases involving the interpretation of an unambiguous document. See Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex. 1983); Bishop v. National Loan Investors, L.P., 915 S.W.2d 241, 245 (Tex.App.-Fort Worth 1995, writ denied); Bass v. Shell, 957 S.W.2d 159, 160 (Tex.App.-San Antonio 1997, no pet.). When a contract is unambiguous we will enforce it as written. Lopez v. Munoz, Hockema Reed, L.L.P., 22 S.W.3d 857, 862 (Tex. 2000). It is a basic rule of contract law that a court called upon to interpret a contract will give plain meaning to the words used in the writing. See City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518-19 (Tex. 1968). Our primary concern in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument. Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133 (Tex. 1994); Coker, 650 S.W.2d at 393. In interpreting a written contract to ascertain the parties' intent, we must examine and consider the entire writing in an effort to harmonize and give effect to all provisions of the contract so that none will be rendered meaningless. Coker, 650 S.W.2d at 393; Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 158 (Tex. 1951). Thus, no single provision taken alone will be given controlling effect, and all provisions must be considered with reference to the whole instrument. Coker, 650 S.W.2d at 393; Myers v. Gulf Coast Minerals Mgmt. Corp., 361 S.W.2d 193, 196 (Tex. 1962).
The plain language of the Asure warranty extended service plan shows that it is a contract, between Amana and the purchaser of the Asure warranty, that requires Amana to provide replacement parts to the purchaser of the warranty. The contract is not between Amana and McKinzie. Although McKinzie contends that language such as, "contact your installing dealer for service," and "contact your authorized Amana dealer to arrange for seasonal maintenance" bound McKinzie and Amana under the agreement, the warranties provide for the purchaser of the Asure warranty to obtain services from any authorized Amana dealer and, thus, not just from McKinzie. Therefore, the warranties did not obligate McKinzie in any way simply because it sold the Asure warranties. The Asure warranties thus do not show that a contract existed between Amana and McKinzie for McKinzie to provide any goods or services under the Asure warranties.
McKinzie alternatively contends that it formed an agreement with Amana through the Dealer Sales Manual, which included the following language: "Customers who buy them [Asure warranties] are now tied to the dealer for service as long as the contract remains in effect"; "Benefits for your customer"; "Talk to your distributor today about Amana's Asure Program"; and "Only Amana ASAP factory approved replacement parts are used." McKinzie also asserts that an agreement between McKinzie and Amana arose through a brochure for the Amana Advantage Asure Program that included statements such as: "Authorized Amana Dealer Responsibilities" to "Ensure all service is performed using genuine Amana parts."
Both the Dealer Sales Manual and the brochure contain statements to promote the sale of Amana's Asure warranty program; they do not include any specific parties, promises, or obligations between Amana and McKinzie concerning the Asure program. Contrary to McKinzie's claims, nothing in the Dealer Sales Manual or the brochure shows a contract that arose between Amana and McKinzie concerning the Asure warranties. Customers who purchased the Asure warranties could receive parts and services from any Amana dealer, and not just from McKinzie. Thus, when McKinzie ceased operating as an Amana dealer, the purchasers of the Asure warranties could go to any Amana dealer for parts and services. They were not required to continue with McKinzie. The Dealer Sales Manual and the brochure for the Amana Advantage Asure Program do not show a contract between Amana and McKinzie concerning the Asure warranties.
2. Oral Representations
McKinzie further contends that it entered into an oral contract with Amana that required Amana to provide McKinzie with Amana replacement parts for the life of the outstanding Asure warranties. Amana asserts that this alleged agreement violates the Statute of Frauds and is unenforceable because the Asure warranties involved the sale of thousands of dollars of parts and the agreements lasted for more than a year.
Section 26.01 of the Business and Commerce Code requires a signed writing memorializing "an agreement which is not to be performed within one year from the date of making the agreement." TEX. BUS. COM. CODE ANN. § 26.01 (Vernon 2002). McKinzie asserts that the contracts could be performed within a year. We need not address this issue because of our holding that the Statute of Frauds renders the alleged oral agreement unenforceable because of the value of the sale of goods.
Section 2.201 of the Business and Commerce Code contains the Texas version of the Uniform Commercial Code's statute of frauds. Section 2.201(a) states, in part as follows:
Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. . . .
Tex. Bus. Com. Code Ann. § 2.201(a) (Vernon 1994). Whether a contract falls within the statute of frauds is a question of law. Iacono v. Lyons, 16 S.W.3d 92, 94 (Tex.App.-Houston[1st Dist.] 2000, no pet.) McKinzie's pleadings allege that Amana agreed to sell "thousands of dollars" of warranty parts for multiple years. Because the alleged agreement thus contemplated a sale of goods at a price of $500 or more, the agreement is subject to section 2.201 and is unenforceable as a matter of law. TEX. BUS. COM. CODE ANN. § 2.201(a); Malone v. E.I. du Pont de Nemours Co., 8 S.W.3d 710, 715 (Tex.App.-Fort Worth 1999, pet. denied) (holding that statute of frauds applied to transaction that undisputedly contemplated alleged contract for more than $500).
The written documents here do not show that any agreement existed between Amana and McKinzie for the sale of goods or services under the Asure warranties. Under the Statute of Frauds, any oral agreement for the value of the goods or services asserted here was unenforceable. B. Fraud Claim
In its brief, McKinzie further alleges that the Statute of Frauds does not apply because of the doctrines of promissory estoppel and part performance. Because McKinzie did not raise these issue in its responses to the trial court, the issues are waived. TEX. R. CIV. P. 166a(c) (Issues not expressly presented to the trial court . . . shall not be considered on appeal as grounds for reversal.); see also McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 341 (Tex. 1993) ("[I]ssues a non-movant contends avoid the movant's entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence").
McKinzie's fraud claim asserts that Mckinzie relied on Amana's oral promises to continue to provide parts and payments to McKinzie.
To the extent that McKinzie contends that it was promised through any written representation that Amana would continue to provide parts and services to McKinzie under the Asure warranties, we note, as discussed earlier, that none of the pertinent documents shows any such agreement between Amana and McKinzie.
To prevail on a fraud claim, a plaintiff must prove that (1) the defendant made a material representation that was false; (2) the defendant knew the representation was false or made it recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended to induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied upon the representation and thereby suffered injury. Ernst Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001).
Amana responds that the Statute of Frauds prohibits McKinzie's fraud claim. In determining whether a fraud cause of action is barred by the Statute of Frauds, we must consider: (1) the relationship of the promise to the purpose of the statute and (2) the nature of damages sought. Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986); Leach v. Conoco, Inc., 892 S.W.2d 954, 960 (Tex.App.-Houston [1st Dist.] 1995, writ dism'd w.o.j.). In determining whether a plaintiff is attempting to use a fraud claim to circumvent the Statute of Frauds, the essential inquiry is into the nature of the injury alleged. Leach, 892 S.W.2d at 960. When the injury alleged is solely the economic loss to the subject of the contract itself, the action sounds in contract alone. Id. In other words, the Statute of Frauds bars the fraud cause of action of a plaintiff who seeks to obtain the benefit of the bargain that he would have obtained had the promise been performed. Id.
Here, McKinzie's fraud claim seeks the same damages as it contract claim. Because these damages constituted the benefit of McKinzie's alleged bargain with Amana, the Statute of Frauds renders McKinzie's fraud claim unenforceable. See id. C. Fraudulent Inducement Claim
Fraudulent inducement is a particular species of fraud that arises only in context of a contract and requires the existence of a contract as part of its proof. Haase, 62 S.W.3d at 798-99. This means that, in a fraudulent inducement claim, the elements of fraud must be established as they relate to an agreement between the parties. Id. As held above, neither the Asure warranty, the Dealer Sales Manual, the Amana Advantage Asure Program brochure, nor Amana's alleged oral promises to continue providing parts and payments formed an enforceable contract between McKinzie and Amana. Accordingly, McKinzie's fraudulent inducement claim must fail. See id. D. Negligent Misrepresentation Claim
To prevail on a negligent misrepresentation claim, a plaintiff must demonstrate (a) that the defendant (1) made a representation in the course of his business, or in a transaction in which he had a pecuniary interest, (2) supplied false information for the guidance of others in their business, and (3) did not exercise reasonable care or competence in obtaining or communicating the information, and (b) that the plaintiff suffered pecuniary loss by justifiably relying on the representation. Fed. Land Bank Ass'n. v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991); Coastal Bank SSB v. Chase Bank, N.A., 135 S.W.3d 840, 842-43 (Tex.App.-Houston [1st Dist.] 2004, no pet.).
Significantly, the sort of "false information" contemplated in a negligent-misrepresentation case is a statement of existing fact, not a promise of future conduct. New York Life Ins. Co. v. Miller, 114 S.W.3d 114, 125 (Tex.App.-Austin 2003, no pet.); Key v. Pierce, 8 S.W.3d 704, 709 (Tex.App.-Fort Worth 1999, pet. denied); Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied); Smith v. Sneed, 938 S.W.2d 181, 185 (Tex.App.-Austin 1997, no writ); Airborne Freight v. C.R. Lee Enters., 847 S.W.2d 289, 294-95 (Tex.App.-El Paso 1992, writ denied).
McKinzie contends that Amana represented that "if McKinzie Co. would agree to return as an Amana dealer Amana would provide warranty parts and warranty service payments even if McKinzie Co. later ceased to be an Amana dealer or servicer." This is not a statement of existing fact; it relates to promises regarding future conduct only and is therefore not actionable as negligent misrepresentation. See New York Life Ins. Co., 114 S.W.3d at 125; Key, 8 S.W.3d at 709.
E. DTPA Claim
Amana argues that McKinzie's DTPA claim is identical to its breach of contract claim, and that McKinzie is attempting to convert the alleged breach of contract claim into a DTPA claim. The supreme court has repeatedly held that, "An allegation of a mere breach of contract, without more, does not constitute a `false, misleading or deceptive act' in violation of the DTPA." Rocky Mountain Helicopters, Inc. v. Lubbock County Hosp. Dist., 987 S.W.2d 50, 53 (Tex. 1998); Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14-15 (Tex. 1996); Ashford Dev., Inc. v. USLife Real Estate Servs. Corp., 661 S.W.2d 933, 935 (Tex. 1983). Even if taken as true, Amana's statements were nothing more than representations that Amana would fulfill its contractual duty to continue to provide parts and payments to McKinzie. Thus, the breach of that duty sounds only in contract. See Crawford, 917 S.W2d at 14. Similarly, the statements themselves did not cause any harm beyond the alleged harm caused by the alleged breach of the contract. See id. Contract law, not the DTPA, is the appropriate mechanism to address the damages McKinzie claimed. See id. at 14-15.
Accordingly, in regard to the Asure warranty claims, we hold that the trial court did not err in granting summary judgment on McKinzie's claims for breach of contract, fraud, fraudulent inducement, negligent misrepresentation, and violations of the DTPA.
The Dealership-Agreement Claims
When Amana filed its motion for summary judgment, "The Dealership Agreement" claims were for (A) breach of contract, (B) fraud, (C) negligent misrepresentation, (D) DTPA violations, and (E) tortious interference with existing and prospective contracts, and with existing and prospective business relations. After Amana filed its motion, McKinzie added claims for breach of fiduciary duty. McKinzie contends that, in late 1995 or 1996, Amana and McKinzie entered into an oral dealership agreement. McKinzie contends that its dealership agreement with Amana contained the following provisions: (1) Amana would provide air conditioning and heating units, repair parts, technical support, credit services, advertising funds and extended warranty availability to McKinzie, (2) McKinzie would have a near-exclusive territory to market in and around the Bryan and College Station, Texas areas, (3) Amana would eventually terminate the authorized-Amana-dealer status of Russell Yates, (4) the dealership agreement would not be terminated as long as McKinzie advertised the Amana brand and as long as sales continued to increase in McKinzie's territory, and (5) Amana promised to reduce the dealership agreement to writing.
A. Breach of Contract Claim
McKinzie contends that Amana breached the alleged oral agreement by violating each of the provisions listed above. Although McKinzie alleges that Amana promised to reduce the oral agreement to writing, McKinzie has not claimed that Amana ever promised to sign a specific written agreement or that any written agreement was in existence when Amana made the alleged promise.
Amana responds to McKinzie's claim that an oral agreement existed by asserting that the Statute of Frauds renders the alleged agreement unenforceable. McKinzie's pleadings allege that the oral dealership agreement provided for the sale of thousands of dollars worth of Amana products for a term of multiple years. Thus, the alleged agreement here, for the sale of goods for the price of $500 or more, is unenforceable under the Statute of Frauds. TEX. BUS. COM. CODE ANN. § 2.201(a); Malone, 8 S.W.3d at 715.
McKinzie contends, however, that the Statute of Frauds does not bar enforcement of the oral agreement because of the promissory estoppel exception to the Statute of Frauds. Amana counters that, for the promissory estoppel exception to apply, McKinzie must show that Amana had promised to sign a prepared, written agreement that complies with the Statute of Frauds. See CRSS, Inc. v. Runion, 992 S.W.2d 1, 7 (Tex.App.-Houston [1st Dist.] 1995, writ denied); Beta Drilling, Inc. v. Durkee, 821 S.W.2d 739, 741 (Tex.App.-Houston [14th Dist.] 1992, writ denied).
McKinzie's brief on appeal asserts only generally that "Amana's promise to reduce the dealership agreement to writing removed the agreement from the requirements of the Statute of Frauds." Even if true, this claim is not sufficient to defeat the Statute of Frauds because complete agreement on the terms and wording of the written contract is required to permit the application of promissory estoppel to a statute-of-frauds defense. CRSS, Inc., 992 S.W.2d at 7. A promise to prepare a written agreement, as alleged here, is not sufficient. See id. B. Fraud Claim
McKinzie's brief on appeal further contends that, "Partial performance of the dealership agreement by Amana, McKinzie Co., and The Air Conditioning Store is also sufficient to remove the agreement from the requirements of the Statute of Frauds." McKinzie follows this contention by generally citing as authority, Hill v. Heritage Resources, Inc., 964 S.W.2d 89 (Tex.App.-El Paso 1998, pet. denied). But, McKinzie does not refer us to a particular passage of Hill or to any place in the record to support its contention. Therefore, McKinzie's contentions relating to part performance are inadequately briefed. See TEX. R. APP. P. 38.1(h) (brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record).
As discussed above in reference to the fraud claim on the Asure warranties, McKinzie seeks the same damages for its fraud claim under the dealership agreement as for its contract claim under the dealership agreement. Because these damages constitute the benefit of McKinzie's alleged bargain with Amana, the Statute of Frauds renders McKinzie's fraud claim unenforceable. See Leach, 892 S.W.2d at 960.
C. Negligent Misrepresentation Claim
As previously discussed, the "false information" in a negligent-misrepresentation case contemplates a statement of existing fact, not a promise of future conduct. New York Life Ins. Co., 114 S.W.3d at 125. McKinzie contends that, under the dealership agreement, Amana made the following representations: (1) Amana would provide parts, support, services, funds, and extended warranty availability to McKinzie, (2) McKinzie would have a near-exclusive market territory in and around the Bryan and College Station, Texas areas, (3) Amana would eventually terminate the authorized-Amana-dealer status of Russell Yates, (4) the dealership agreement would not be terminated as long as McKinzie advertised the Amana brand and as long as sales continued to increase in McKinzie's territory, and (5) Amana would reduce the dealership agreement to writing. Because these representations are not statements of existing fact, but relate to promises regarding future conduct only, they are not actionable as negligent misrepresentation. See id. at 125; Key, 8 S.W.3d at 709.
D. DTPA Claim
As addressed in the section concerning McKinzie's DTPA claims under the Asure warranties, Amana's statements, if taken as true, were nothing more than representations that Amana would fulfill its alleged contractual duties. Accordingly, breach of those duties sound only in contract. See Crawford, 917 S.W2d at 14. The statements outside of any breach of the alleged contract did not cause any harm. See id. The alleged failures to continue providing parts and payments, to provide an exclusive territory, to terminate Russell Yates's dealer status, and to reduce the agreement to writing are the alleged causes of McKinzie's allegedly lost profits, which injury is governed by contract law, not the DTPA. See id. at 14-15.
Accordingly, in regard to the Dealership Agreement claims, we hold that the trial court did not err by rendering summary judgment against McKinzie on its claims for breach of contract, fraud, negligent misrepresentation, and violations of the DTPA.
Tortious Interference Claims
McKinzie contends that the trial court erred by granting the no-evidence summary judgment on its claims against Amana for tortious interference with existing and prospective contracts. McKinzie asserts that Amana tortiously interfered with (1) the Asure warranty contracts between The Air Conditioning Store and its customers by refusing to sell, and refusing to allow others to sell, any products or services to The Air Conditioning Store while the Asure warranties were still in effect; (2) contracts between The Air Conditioning Store and other authorized Amana dealers for the purchase of Amana equipment by persuading other authorized Amana dealers not to sell products to The Air Conditioning Store; and (3) financing contracts between The Air Conditioning Store and Household Retail Services, Inc. (HRSI) by urging HRSI to revoke financing that it had already approved on two of The Air Conditioning Store's customers.
In moving for a no-evidence summary judgment on McKinzie's tortious interference claims, Amana alleged, among other things, that McKinzie did not produce any evidence of damages. Accordingly, the burden shifted to McKinzie to produce more than a scintilla of evidence to raise a genuine issue of material fact. See TEX. R. CIV. P. 166a(i); Roventini, 111 S.W.3d at 722. In its multiple responses to Amana's summary judgment motions, McKinzie did not produce any evidence of how, or even if, it suffered damages from Amana's alleged tortious interference. Furthermore, McKinzie's responses to the motion for summary judgment contained mere assertions that did not constitute competent summary judgment proof. See Feazell v. Mesa Airlines, Inc., 917 S.W.2d 895, 898 (Tex.App.-Fort Worth 1996, writ denied) (stating that neither response to motion for summary judgment nor petition accompanying response is summary judgment evidence).
Damages are an essential element of tortious interference. The elements of tortious interference with an existing contract are (1) an existing contract subject to interference, (2) a willful and intentional act of interference with the contract, (3) that proximately caused injury, and (4) actual damages or loss. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). The elements of tortious interference with a prospective business relationship are (1) a reasonable probability of entering into a business relationship, (2) an independently tortious or unlawful act that prevented the relationship from occurring, (3) the defendant acted with a conscious desire to prevent the relationship from occurring, or the defendant knew the interference was certain or substantially certain to occur, and (4) actual harm or damages. Baty v. Protech Ins. Agency, 63 S.W.3d 841, 860 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).
Because McKinzie did not meet its burden to produce evidence to defeat Amana's no-evidence motion for summary judgment, we hold that the trial court did not err in granting that motion on McKinzie's tortious interference claims. See Johnson, 73 S.W.3d at 207; see also Roventini, 111 S.W.3d at 722 (holding that trial court must grant motion if respondent does not produce more than scintilla of evidence to raise genuine issue of material fact on challenged element or elements).
Other Claims
We now consider whether the trial court erred by granting final summary judgment on McKinzie's (1) Asure warranty claims for breach of fiduciary duty and violations of the duty of good faith and fair dealing, (2) Oral Dealership Agreement claims for breach of fiduciary duty, and (3) Financing Services claims for breach of fiduciary duty.
As addressed above, Amana filed its second and final supplements to its motion for partial summary judgment on June 26, 2001. McKinzie then filed its fourth amended original petition on December 19, 2002. That petition added the causes of actions noted in the preceding paragraph. None of Amana's summary judgment motions addressed these causes of action. On February 11, 2003, the trial court rendered final summary judgment in favor of Amana, disposing of all parties and causes of action. In disposing of all of McKinzie's claims, therefore, the trial court erred by granting more relief than Amana requested. See Bandera Elec. Coop., Inc. v. Gilchrist, 946 S.W.2d 336, 337 (Tex. 1997); Postive Feed, Inc. v. Guthmann, 4 S.W.3d 879, 881 (Tex.App.-Houston [1st Dist.] 1999, no pet.). When, as here, a trial court grants more relief by summary judgment than requested by disposing of issues never presented by any motion, the interests of judicial economy demand that we reverse and remand as to those issues, but address the merits of the properly presented claims. See Postive, 4 S.W.3d at 881.
Having addressed those claims properly presented by Amana's motions and having affirmed the summary judgment rendered as to those claims, we reverse the judgment of the trial court and remand to that court for disposition of McKinzie's unresolved claims. See Id.
Conclusion
We reverse the trial court's order granting summary judgment on McKinzie's (1) Asure warranty claims for breach of fiduciary duty and violations of the duty of good faith and fair dealing, (2) the Dealership Agreement claim for breach of fiduciary duty, and (3) Financing Services claim for breach of fiduciary duty. We affirm the judgment of the trial court in all other respects.