Opinion
No. 05-10-00709-CV
Opinion Filed October 21, 2011.
On Appeal from the 116th District Court, Dallas County, Texas, Trial Court Cause No. 09-09842-F.
Before Justices MOSELEY, LANG, and MYERS.
OPINION
La Providencia Food Products Co. and Roberto Meza, the president of La Providencia, appeal the summary judgment entered in favor Super Plaza Stores LLC on Super Plaza's fraud cause of action. La Providencia and Meza bring five issues on appeal contending (a) the trial court erred in granting Super Plaza's motion for summary judgment; (b) Super Plaza failed to prove the fraud elements of reliance, intent to deceive, and damages as a matter of law; and (c) the fraud judgment was premised solely on the purported existence of an agency contract between the parties that did not exist. We reverse the trial court's judgment and remand the cause for further proceedings.
BACKGROUND
La Providencia and Super Plaza owned and operated grocery stores. Grocers Supply Co., Inc. obtained the right to purchase numerous grocery stores from Minyard Food Stores, Inc. Grocers Supply's right to purchase each of the stores was assignable. La Providencia negotiated with Grocers Supply for an assignment of its right to purchase three of the stores. Super Plaza then approached La Providencia about purchasing the Minyard stores La Providencia was buying from Grocers Supply. The parties presented differing accounts of what followed.
According to Super Plaza, La Providencia through Meza agreed to act as Super Plaza's agent for purchasing the stores from Grocers Supply. As Super Plaza's agent, La Providencia and Meza would negotiate the price for the three stores with Grocers Supply. After purchasing the stores from Grocers Supply, La Providencia would sell the stores to Super Plaza for the same price. In return, La Providencia would manage the stores for a fee during their remodeling. Super Plaza asked Meza what prices he had negotiated with Grocers Supply for the stores. Meza sent Super Plaza a copy of the Partial Assignment of the stores from Grocers Supply to La Providencia. Exhibit B of the Partial Assignment contained a list of the prices Grocers Supply was charging for the stores. The original Exhibit B stated the total price of the three stores was $1.6 million. Meza altered Exhibit B to show a total price of $5 million and sent the altered Exhibit B to Super Plaza. Meza did not tell Super Plaza that he had changed the numbers on Exhibit B.
According to Meza, there was no agreement that he and La Providencia would act as Super Plaza's agent or that La Providencia would transfer the stores to Super Plaza for the purchase price from Grocers Supply. Meza told Super Plaza that La Providencia would sell the stores to it for a profit after La Providencia had purchased them. During the negotiations with Super Plaza over the sale of the stores, Super Plaza asked the price that La Providencia would sell each of the stores. In reply, Meza sent Super Plaza a copy of the Partial Assignment between Grocers Supply and La Providencia. Meza changed Exhibit B to reflect the higher prices that La Providencia asked for the stores, a total of $5 million, and included the altered Exhibit B with the rest of the Partial Assignment. Meza did not tell Super Plaza that he had changed the numbers on Exhibit B. Meza stated that he included the altered Exhibit B with the copy of the Partial Assignment he sent to Super Plaza "because it was the most convenient way to send them that information."
La Providencia and Super Plaza signed a written agreement for the sale of the three stores to Super Plaza for the prices set out in the altered Exhibit B, $5 million. The purchase closed, Super Plaza paid $5 million to La Providencia, and Super Plaza became the owner of the stores.
Super Plaza sued La Providencia and Meza for fraud and other causes of action. Super Plaza alleged La Providencia and Meza defrauded it by altering Exhibit B of the Partial Assignment, which misrepresented the amount La Providencia agreed to pay Grocers Supply for the stores.
Super Plaza moved for summary judgment on its fraud claim, supported by the affidavits of its chief executive officer, Ralph Wiegandt, and one of its officers and managers, Christian Fuentes. La Providencia and Meza objected to most of Wiegandt's and Fuentes's affidavits, and the trial court sustained those objections, striking those portions of the affidavits. La Providencia and Meza's response to the motion for summary judgment was supported by Meza's affidavit, which contradicted many of the allegations in Super Plaza's petition and Wiegandt's and Fuentes's affidavits. Meza denied that he agreed to be Super Plaza's agent for its acquiring the stores, and he denied that he agreed not to make a profit on the sale of the stores to Super Plaza. The trial court granted Super Plaza's motion for summary judgment on its fraud claim and awarded Super Plaza damages of $3.4 million, which was the difference between what La Providencia received from Super Plaza and what it paid Grocers Supply for the stores. Super Plaza then nonsuited its other causes of action.
SUMMARY JUDGMENT ON FRAUD
The standard for reviewing a traditional summary judgment is well established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); McAfee, Inc. v. Agilysys, Inc., 316 S.W.3d 820, 825 (Tex. App.-Dallas 2010, no pet.). The movant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In deciding whether a disputed material fact issue exists precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon, 690 S.W.2d at 548-49; In re Estate of Berry, 280 S.W.3d 478, 480 (Tex. App.-Dallas 2009, no pet.). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005). If the credibility of an affiant is likely to be a dispositive factor in the resolution of the case, then summary judgment is inappropriate. Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). We review a summary judgment de novo to determine whether a party's right to prevail is established as a matter of law. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied).
The elements of common-law fraud are that: (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; (4) the representation was made with the intention that it be acted upon by the other party; (5) the party acted in reliance upon the representation; and (6) the party suffered injury. Johnson Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998). The plaintiff must prove the defendant intended to deceive the plaintiff when making the misrepresentation. Smith v. KNC Optical, Inc., 296 S.W.3d 807, 812 (Tex. App.-Dallas 2009, no pet.); see Webb v. Stockford, 331 S.W.3d 169, 174 (Tex. App.-Dallas 2011, pet. denied) ("Misrepresentation is a falsehood or untruth with the intent and purpose to deceive."). "Intent is a fact question uniquely within the realm of the trier of fact because it so depends upon the credibility of the witnesses and the weight to be given to their testimony." Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986).
In their third issue, La Providencia and Meza contend that Super Plaza failed to prove as a matter of law their intent to deceive. Super Plaza asserts that La Providencia and Meza committed fraud by agreeing to accept the same amount for the stores that they had agreed to pay Grocers Supply and then changing Exhibit B to a higher price than what La Providencia agreed to pay Grocers Supply.
In his affidavit, Meza stated, "There was no agreement that the Former Minyard Stores would be sold to Super Plaza with no profit or additional sum." "Instead I told [Wiegandt and Fuentes] that La Providencia would be making a profit on the sale of these stores." Meza also stated that Super Plaza never asked what La Providencia had agreed to pay for the stores and that he never told Super Plaza what La Providencia paid Grocers Supply. Meza also denied intending to deceive Super Plaza in changing Exhibit B of the Partial Assignment:
I was told by Mr. Wiegandt and Mr. Christian Fuentes that they needed a break down per store of what I was agreeing to SELL the stores to them, so they could run numbers according to sale data that they had from this stores [sic]. I faxed them the copy of the Partial Assignment and changed the last page to reflect the selling price that I intended to sell each of the Former Minyard Stores. I did this because it was the most convenient way to send them that information. I did not tell them at any time that this was the purchase price that I was buying the Stores for.
On appeal, Super Plaza asserts Meza's testimony that changing the prices on Exhibit B was the most convenient way to relay the purchase price "fails for lack of credibility or reasonableness." However, the credibility of the witnesses and the weight to be accorded their testimony is an issue for the trier of fact, not summary judgment. See Casso, 776 S.W.2d at 558; Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965). We conclude that Super Plaza failed to establish La Providencia and Meza's intent to deceive as a matter of law and that there are genuine issues of material fact on that issue. We sustain La Providencia and Meza's third issue.
Having sustained the third issue, we need not address the other issues because they are not necessary for final disposition of this appeal. See Tex. R. App. P. 47.1.
We reverse the trial court's judgment and remand the cause for further proceedings.