Diers, Jones & Stark, Inc. v. Comerica Bank
05-15-00375-CV
Tex. App.Jun 11, 2015Background
- DJ&S produced and executed a contract drafted by Comerica to solicit bids and obtain commissions on the sale of three vessels; DJ&S earned 12% of the final bid price if the sale consummated.
- Comerica delayed title clearance and used a U.S. Marshal sale after failing to furnish clean, unencumbered titles, leading bidders to withdraw.
- Comerica itself purchased the vessels at a federal marshal sale for $655,000, allegedly below DJ&S’s potential sale proceeds, after delays.
- DJ&S claimed the contract drafted by Comerica was ambiguous, entitling it to a 12% commission of the final bid prices ($671,000 total bids).
- DJ&S asserted fraud and negligent misrepresentation claims based on Comerica’s representations about title clearance and marketable titles.
- DJ&S sought quantum meruit for the value of services partially performed when Comerica prevented full performance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract—ambiguous contract drafting. | Diers argues the contract is unambiguous and DJ&S earns 12% of final bid price. | Comerica contends only the word “consummated sale” controls; funds come from sale proceeds. | Ambiguity exists; contract terms are susceptible to more than one meaning. |
| Fraud and negligent misrepresentation. | Comerica misrepresented title clearance and marketable titles to induce contract. | Misrepresentations alleged were not proven or not actionable. | Fact issues exist; evidence supports possible fraud and negligent misrepresentation. |
| Quantum meruit recovery. | DJ&S partly performed and was prevented from completing the contract by Comerica’s actions. | Texas law disfavors quantum meruit when there is an express contract. | Genuine fact issues exist; quantum meruit remains viable where performance was prevented. |
| Summary judgment issues. | DJ&S presented evidentiary support showing material issues of fact. | DJ&S failed to show no genuine issues; court should grant judgment accordingly. | Material facts exist; summary judgment improper. |
Key Cases Cited
- Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323 (Tex. 2011) (fraud elements and reliance standard in misrepresentation)
- Aquaplex, Inc. v. Rancho la Valencia, Inc., 297 S.W.3d 768 (Tex. 2009) (per curiam; contract remedies and evidence standards)
- De Santis v. Wackenhut Corp., 688? (Tex. 1990) (Tex. 1990) (explains contract interpretation and extrinsic evidence limits)
- Nixon v. First State Bank of Corpus Christi, 540 S.W.2d 817 (Tex. Civ. App.—Corpus Christi 1976) (unambiguous contract interpretation and appellate review)
- Stowers v. Harper, 376 S.W.2d 34 (Tex. Civ. App.—Tyler 1964) (principle against drafting party advantage in contract interpretation)