*1 49.04(a) (Vernon 2003). also Tex. Pen. See (Vernon 2003). § 49.08 ACCESSORIES, Addi- DRC PARTS &
Code Ann. tionally, L.L.C., persuaded we are Appellant, a factfinder that, reasonably could have found “but for” appellant’s intoxication, complainant’s
death would not have occurred.
MOTORI, S.P.A., Appellee.
We therefore conclude the evidence was
No. 14-01-00507-CV.
legally
support
finding
sufficient to
Lowe,
causation. See
of stab wound defen-
dant despite inflicted the stab ev- wounds— suggesting
idence such wounds “not are fatal”); Barcenes,
normally 940 S.W.2d at (finding sufficient evidence defendant
“caused” infant’s death where infant
died from “massive blunt trauma to the
head,” defendant custody had sole
care of the at infant the time of injury,
defendant’s version of events was medical- discredited,
ly attempted defendant up guilt by getting cover his sоmeone to him).
lie for
Moreover, the evidence was factually
sufficient because the verdict was not so
contrary to overwhelming weight clearly evidence as to be wrong and Johnson,
unjust. See at
Because the evidence legally was both
and factually support sufficient to a finding appellant’s com- intoxication caused
plainant’s death —and to permit rational
jury to find all essential elements of manslaughter
intoxication overrule —we appellant’s points third and fourth of error. n n n n n n
Having appellant’s overruled all of error,
points of affirm we
the trial court. *2 Houston, McQueen, appel- A.
Dennis lants.
Stephen M. Fernelius Warren Houston, appellees. Huang, Szutse (the “contract”) En Banc Panel consists of Chief Justice tract containing the follow- BRISTER, (the YATES, provision “provision”): ing Justices ANDERSON, HUDSON, J. HARVEY ... grants a non-exclusive basis *3 FOWLER, EDELMAN, H. RICHARD ... purchase DRC ... and FROST, and SEYMORE GUZMAN. sell VM engine diesel ORIGINAL for engine
SPARE PARTS series and/or engine model versions not in-eurrent MAJORITY OPINION production by VM and VM ORIGINAL ON REHEARING ACCESSORIES for current and non- EN BANC engines, current series of оr USA EDELMAN, RICHARD H. Justice. Canada, hereinafter to as referred TERRITORY .... Appellant’s motion for en rehearing banc provided The contract further “sub- granted, majority is dissenting and and any stitute[d] invalidate^] other for- opinions issued this case on October agreement.” mer -withdrawn, following are and the ma- jority opinions and dissenting rehearing Thereafter, on against DRC filed suit VM en banc are place. issued in their for breach of that: alleging the contract it the gave exclusive In this breach of contract and fraud sell longer case, Accessories, DRC Parts & L.L.C. being produced VM, and that VM had (“DRC”), appeals summary en- judgment breached the agreement by selling such (“VM”) Mоtori, tered in favor of VM S.P.A. others; alternative, and grounds on the that its summary judgment if granted only DRC non- evidence raised a fact issue on each of its right, exclusive fraudulently then VM in- against two claims DRC. We affirm. duced DRC to enter into and continue performance contract never- Background theless misrepresenting that DRC’s right 1995, VM, Before an Italian manufactur- be would exclusive. VM moved sum- er and seller engines, of industrial diesel mary judgment against these claims1 on parts, accessories, contracted with grounds that: the contract unam- DRC, others, among prod- distribute its biguously gave a non-exclusive ucts in North America. right distribute non-current purchased by VM was Detroit Diesеl Cor- parts; as a matter (“DDC”), poration an American manufac- rely DRC could alleged misrep- turer engines, and distributor of diesel it directly resentation because contradicted parts, existing and accessories that had an unambiguous terms of the contract. representatives granted network sales trial summary North The court VM Despite against America. both resulting judgment decrease claims. prod- its need for DRC distribute its Standards of Review ucts, agreed VM to continue the relation- ship because of DRC’s extensive knowl- A summary judgment may traditional be edge products. May of VM’s On if granted summary judg- motion DRC entered into a written con- genu- ment evidence show that there is no claim, Although VM moved for a traditional sum- tract the difference is not material to mary judgment on both claims and also for a disposition. our summary judgment no-evidence on the con- ambiguous is Whether moving me of material fact and the issue court to decide. is a law for the question is entitled to as matter Reed, L.L.P., Munoz, & Lopez v. Hockema expressly law set out issues (Tex.2000). A contract response. Tex.R. Civ. P. the motion if it that it ambiguous is so worded 166a(c). is not reviewing a motion for such given legal can a definite or certain all summary judgment, we take Stores, Sturg Inc. v. meaning. Wal-Mart as true and favorable to the nonmovant es, Con doubt, every indulge every resolve inference, ambiguous if its lan versely, a contract reasonable in the nonmovant’s *4 Bank, subject to reasonable guage is two or more N.A. favor. Tex. v. Commerce (Tex.2002). v. Grizzle, interpretations. Monsanto Co. Bousta 96 S.W.3d (Tex.2002). 225, 229 ny, 73 S.W.3d summary A judg- no-evidence motion for granted moving ment must be if: the However, an does not ambiguity party asserts that there is no evidence of parties advance simply because the arise claim specified one or more elements of a of contract. conflicting interpretations the or on which the adverse Stores, defense at Wal-Mart trial; proof exist, at would have the burden Rather, to ambiguity for an both sum- respondent produces the If must reasonable. Id. interpretations be mary raising genuine a judgment evidence so, concerning the fact issue is created a issue material fact those elements. Trans parties’ intent. See Columbia Gas 166a(i). reviewing In Ltd., See Tex.R. Civ. P. a Gas, Corp. v. New Ulm mission summary judgment, (Tex.1996). no-evidence we review S.W.2d light the record the most favorable to case, In the contract un this the nonmovant to determine whether more on a equivocally grants right, DRC the presented than a scintilla of evidence was purchase and basis” to sell “non-exclusive challenged on the elements of the nonmov- parts in DRC has engine question. the Stores, Inc. ant’s claim. See Wal-Mart v. that re language cited no the contract (Tex.2002). Rodriguez, S.W.3d to supports right an exclusive sell motely way any is inconsistent those or Ambiguity Breach of Contract: right. Although DRC with a non-exclusive surrounding on the circumstances challenges DRC’s first issue relies to establish summary judgment on its breach of con the formation of reasonable, such interpretation is ground tract claim on the that the contract its for the raising evidence is not admissible ambiguous, question is fact. creating ambiguity an particular, purpose the term DRC contends that “non-exclusive,” Inc. provision, agreement. Kelley-Coppedge, as used Co., S.W.2d reasonably Highlands mean Ins. interpreted can ei (Tex.1998). Rather, only it when the ther that: retained the sell YM either language ambiguous, of a contract is not in-current for DRC; subject applied face or when entities other than its through contract,2 may that a court matter of the DRC had the exclusive to sell such to determine consider extrinsic evidence parts. exist, green on that Nat'l ambiguity” were two houses street. 2. Such a "latent would for Fire, delivery example, if contract called S.W.2d at 520 n. 4. Union Street,” "green on Pecan but there house meaning of instrument. See Nat’l parties between the justi- is not Inс., Union Fire Ins. Co. v. CBI Indus. fied as matter of law.3 Because This principle is by policy also dictated ambiguous contact in this case is not practical considerations. If written respect, either DRC has not demonstrated purpose contracts are to serve (that a fact issue on its contract claim VM law, agreements, relative to oral tois breached by selling provide greater certainty regarding what others). parts in question Accordingly, the terms the transaction are and that we overrule DRC’s first issue. binding, those terms will be thereby less- error, misfortune, ening potential Fraudulent Inducement dispute. that, DRC’s second issue contends contrast, By the approach advocated if the contract term “non-exclusive” is un would, effect, and the dissent cre- (as above), ambiguous we conclude then a relationship ate a contractual gov- that is fact issue was raised on its erned its written contract *5 by inducement claim that evidence it extent does previous not contradict a falsely represented to it DRC that would agreement parties. oral between the This have an exclusive to distribute a party’s is because exercise of a right engines. non-current written which is con- trary to the oral agreement, subject would of the a One elements of fraud party that tо a fraudulent inducement plaintiff claim is that actually just and claim based on the oral ifiably the misrepresentation relied on to event, however, party that who entered suffer injury. Young, Ernst & L.L.P. v. into the written while a relying contract Co., 573, Pac. Mut. Ins. 51 577 S.W.3d Life contrary agreement oral would have there- (Tex.2001); (Second) Restatement of by itself entered the written into (1977). § par 537 In this a regard, ToRts perform with an intent not to it. ty to an length arm’s transaction must to order show its reliance on the oral ordinary exercise care and reasonable dili to agreement sustain its own fraudulent gence protection for the of his own inter claim, party inducement that would neces- ests, and a failure to do so is not excused prove sarily guilty that it was of fraudulent honesty mere confidence in the inducement as well.4 integrity party. Thigpen of the other Locke, 247, issue, then, 251 S.W.2d The essential is not Therefore, upon represen reliance oral party’s whether that evidence of the con tation directly that is oral trary agreement contradicted admissible or is suffi express, unambiguous prove terms of a written to that but agreement,5 cient instead Offices, Corp. 3. Scheduled Airlines Inc. v. Ob Formosa See Plastics USA v. Presidio Traffic Contractors, Inc., (4th Cir.1999); Inc., F.3d jective Eng’rs & (Tex. 1998) (recognizing promise 47-48 that a Hales, F.Supp.2d Republic Nat’l Bank v. performance of future constitutes fraud in the (S.D.N.Y.1999); Amerigas, Lowe v. promise if was made inducement with no Inc., (D.Conn.1999); F.Supp.2d performing). intention Assocs., Schwaiger Radiology v. Mitchell (S.D.2002); N.W.2d v. Mi Abboud Broaddus, 5. See Town N. Bank v. Nat’l chals, 241 Neb. 491 N.W.2d 41-42 489, 492, (Tex.1978) (holding (1992). payee’s representation to the maker note, maker would not be liable with the sent, disagree not because will such reliance the law deem whether general as principle party aforementioned thereby favor justified be law, cannot but it contracting par- of the because of the other the detriment statement scenarios. its intent to all fact universally applied at lеast declared ty, which has be by its sum- Here, to abide substantial sought presented approach would a fact issue proof raising such an mary judgment terms. Because ability of contracts justifiably written relied defeat whether certainty dispute, provide and avoid that con- and written oral above, rule, is instead recited prevailing contract. Consider- with the written flict into who enters a written party and the of the contract ing both contrary oral relying formed, on a contract while it was under which circumstances peril is not does so at its summary not believe DRC’s I do in- a claim for fraudulent insufficient, rewarded with matter law. as a evidence whеn other seeks ducement rights
invoke under the contract. its “justifiable Reliance” Proof case, therefore, assuming even In this inducement, a party prove To suffi- to be admissible and (1) represen show: a false material must con- its actual reliance on a cient show tation; false or made known trary that reliance could agreement, truth; which knowledge of without not, justified. been as a matter have upon; was intended to be acted was we overrule DRC’s second Accordingly, injury. upon; caused For relied *6 of point of and affirm the error (Tex. Plastics, mosa trial court. 1998). majority The holds the evidence by was to show presented DRC insufficient and Justices Chief Justice BRISTER misrep any alleged on justifiably relied YATES, ANDERSON, FROST and disagree. I resentations. join Majority Opinion. SEYMORE judgment proof shows summary The HARVEY HUDSON filed a Justice J. Motori, S.P.A., 1995, VM prior to Dissent in which Justices FOWLER and parts, and accesso- engines, marketed its join. GUZMAN exclusively through in America ries North 1995, however, was pur- In VM DRC. HUDSON, Justice, J. HARVEY Corporation by Detroit Diesel chased En dissenting Rehearing Banc. network in existing had vast sales which by the second issue raised Regarding Nevertheless, VM Moto- North America. Accessories, L.L.C., ma- DRC Parts & services of Diesel retained the ri/Detroit is, jority evidence as a holds extrinsic Chambliss, to president, and its Dale DRC in fraud matter insufficient show of products North market VM some aof written contract when the inducement America, help and train advise express such evidence rebutted of regarding Diesel sales the VM Detroit agreement. The rationale for terms of the line. product is that a can never holding this Chambliss, made According VM rely” on oral “justifiably of types engines. of of different contrary express to the number that are manufacturers, line product most respectfully dis- Like the written thereon, exception within an to the trickery, did not fall in the absence of rule)). (so as to inducement fraud constitute year year ment, from changed new mod- Motori represented becаuse VM —as added, els of were some the older versions the term “non-exclusive” included was became phased “obsolete” were out of problem to resolve the models, however, production. engine New distributing parts.” “common Without incorporated parts previ- sometimes from such Detroit language, might Diesel Therefore, engine ous models. some re- considered in breach placement parts were common both cur- replacement parts when it sold for current engines parts rent and obsolete engine compatible models that were also —such i.e., known parts,” parts were as “common with engines. obsolete compatible that were several words, In other when Motori VM was models. acquired by Detroit Diesel in base, support To its customer VM of- right lost its exclusive to market all VM supply replacement parts fered a engines parts Motori North Amer- engines. both its current and obsolete De- ica. Chambliss claimed that Diesel, however, troit had limited knowl- granted the DRC was exclusive edge product of VM’s obsolete line and (but parts) market not common focused its primarily attention distribut- engines longer obsolete that were no ing improving current production. explained Chambliss the new Chambliss, according models. af- relationship with VM Die- Motori/Detroit ter VM Diesel grant- Motori/Detroit sel as follows: ed DRC the exclusive to sell “non- previous order to continue its levels replacement parts common” and accesso- sales North engines. ries for obsolete Because “com- America, encouraged DRC and I to parts” produc- mon were used in current participate implementation of a (and tion models thus sold and distributed program involving new Detroit Diesel. Diesel), they Detroit included VM initiated discussions within the ambit of DRC’s exclusive sales products, role in the sale of VM *7 how role tie in that would
The written agreement plans between Detroit Diesel’s for the VM DRC line. plainly granted suggested рrovide VM states DRC is VM DRC and right parts to sell for engines “not in beneficial services to VM and Detroit Diesel, production.” just it training current as including providing plainly right states that such is “non-exclu- technical information the VM upon sive.” It is product this clause that the ma- line to Detroit Diesel’s distribu- addition, jority holding relies that DRC could because Detroit not tors. Die- reasonably granted system it had no believe been an sel had fixed for the distribu- line, replacement product exclusive to distribute tion of VM’s entire VM parts engines whereby for “obsolete” suggested agreement North DRC Nevertheless, parts engines America. would sell which DRC submitted for summary judgment longer considerable no VM manufactured (“non-current repeated representa- of production and written engines”), and accessories; engine from tions VM Diesel that VM while Detroit Motori/Detroit Moreover, right. it had such a fur- would the newer model Diesel sell en- repre- gines parts ther reliance those engines. contends its on these VM for reasonable, sentations was even the face told me on several occasions contrary provide of all language agree- agreement the written would sales from them approach kindly requested en- production non-current parts of for new your be sold advise them about gine and accessories would now and receive through you soon as exclusively position DRC. U.S.A. As agreement, now accept added). (Emphasis con- you then can start preparation, a new parties signed Even before us. directly to the U.S. orders vey all ar- began making Motori VM (Underlining original). in the North rangements to channel all of its for en- non-production American orders Thereafter, just days May through February DRC. gine parts On VM signed, was the new before Freiwald, vice-presi- the senior Tom from message following Motori sent vice- dent Detroit Diesel and the former (a custom- L North American Italy to M & memoran- president of VM Motori sent a er): vice-presi- regional dum to Motori’s VM May L—To It Con- M & Whom To: Chambliss’, advising them Dale dents [sic] cerned i.e., DRC’s, distributing parts: role in new 1-5-1996 Kindly be advised that as from engine There are some obsolete VM your spare parts all re- [May 1996] operating that are models N.A. [sic] have to be chanelled quirements production. familiar longer in Dale is [i.e., Detroit through DDC-Canton-Ohio engines with these and will become spare engines’ for Diesel] VM current these out supply source of for Chambliss) (Mr. through DRC parts, production cur- engines. Parts for all non engines related to spares VM supplied by rent will be Canton production. current [i.e., Canton, Ohio]. Detroit Diesel in (Italics added; original). underlining Tony providing Bonacci and Dale will be or- additional information about how to however, surprise, when To Chambliss’ parts for the production der the out of the con- Diesel sent VM Motori/Detroit engines. VM DRC, provision tract contained added). (Emphasis “on basis granting to DRC a non-exclusive purchase and sell VM ... later, April Two months PARTS engine ORIGINAL SPARE diesel Spare Department Motori Parts of VM engine model ver- series and/or sent memo following to Chambliss: in-current sions YOUR SUBJECT: NEW CONTRACT. this to be language ....” Because seemed very in a going you, We are send *8 their oral Cham- contrary agreement, to time, the new issued short VM Diesel. bliss contacted Motori/Detroit VM-Motori, you which will have eventu- in states his affidavit: Chambliss (Your approval. for contract ally sign to modified). agree- finally sent ... distribution VM has been proposal slightly DRC, Meanwhile, know, to me to execute on behalf you are al- ment you as have a it stated DRC would favourable but ready enjoing [sic] our new right purchase parts. discounts, to even if are still re- “non-exclusive” we [sic] VM the use of questioned M L and ceiving orders from & Graham “non-exclusive”, response to com- (supposed go through your to the term Ford necessary me to told that was you wish which VM pany). We remind this as dis- describe a “non-exclusive you’ve granted such discount been parts for non- tributorship” many with since you operate to let better order customers, therefore, were also production engines are you current other U.S. used in newer model engines, which they VM are causing you price with their (the selling would be to Detroit Diesel policy. At the same time we will warn parts”). VM, “common According to them to change their attitude and not to info, only way provide for the common any price disclose concerning parts would grant be to DRC “non- spare parts for engines obsolete to their purchase exclusive” and sale customers distributors. We will and/or parts; otherwise, [sic] VM could not sell definitely remind organization DDC parts common to Detroit Diesel you channel to inquiries all the or or- without in breach of the agree- covering ders spares pro- current for ment. As the use of that term under engines. duction reasonable, the circumstances was added). (Emphasis upon reliance VM’s appears VM Motori to have tried to regarding the meaning and effect of the requests direct it received from its North terms of agreement, I executed the American non-production customers for on behalf of May DRC on engine parts to DRC. For example, on 1996. 23, 1998, January Spare VM Motori 1996, 1997, Throughout and most of Department Parts sent the following parts DRC Pаrts sold for non-pro- memo to one of its customers: duction model in North America Big SUBJECT: impeller and bearing believing it had the exclusive to do SU 105SEngine for justified so. This belief was not only by With ref. your FAX of yesterday, Motori, communications with VM but Govoni, addressed Giorgio to Mr. I’m many also written communications. For very pleased you to advise as follows: example, when the Manager Parts of In- 1) part VM required numbers by your dustrial Engine Group Ford, of Graham (fan) customer are 2.094.0018F (a Inc., Columbus, company located in (roll 4.637.0188A bearing) both available Ohio) attempted parts to order directly at our warehouse. Motori, from VM he was advised 2) For the your above items аnd for all Motori June of 1996 that “Dale Cham- spare parts concerning need VM’s obso- bliss of DRC Parts & Accessories had engines, you lete should contact for exclusive contract for the sale of (and prompt info delivery reason- non-current VM Motori en- prices) able major our customer gines.” signed U.S.A. who special has Thereafter, when DRC com- Parts us these engines’ obsolete plained to VM Motori regarding certain DRC, spare parts: Attention Mr. Dale pricing policies Diesel, of Detroit it re- Chambliss, PH. 713-4661250 FAX 713- ceived the following reply on November will have these items 18,1996: available SUBJECT: New prices DDC 3) *9 For VM engines’ current U.S.A. spares, obviously you should refer to you We wish to inform your that re- you DDC Canton as know. marks have been taken in due consider- (Italics added; underlining original). in the ation you very and we thank much for your interesting report. Kindly appeared note that itWhen that Detroit Diesel’s we will contact counterparts DDC di- other might distributors non- selling rectly alerting problem them about the production engine parts to North Ameri-
863 customers, bright a line rule is complained. The construction of can Chambliss On 1998, parol rule 20, difficult evidence following he received the because March largely fraud in inducement are pertinent from VM Motori’s and reply, part, incompatible concepts. the tension Department: Spare Parts generated has incon- between these ideas engagement ... has its DDC confirmed holdings. sistent instructing addressing and all any they need distributors DRC for Evidence Rule Parol might engines spare have obsolete rule of parts. The rule is not a evidence, law. a rule of substantive but strictly will trust DDC distributors We Bank, 159 Tex. Hubacek v. Ennis State to the commitment in the adhere above (1958). 30, 166, 32 When S.W.2d they future as did till now. willWe complete unambig written contract is monitoring keep the situation order to uous, the admis parol evidence rule bars by any any- avoid breach of these rules prior regarding sion of extrinsic evidence one. agreements. Nat’l contemporaneous or added). (Emphasis Industries, v. CBI Union Fire Ins. Co. appeared when it later Inc., (Tex.1995); Sun S.W.2d non-production parts were Madeley, Co. v. Oil S.W.2d routinely sold Detroit dis- other Diesel extrinsic evidence is ad While America, in North brought tributors clarify the terms a contract missible to this suit breach of contract fraud incomplete, that is it is ambiguous in the inducement. admissible extent not to the does unambiguous believe aforementioned evidence contradict terms of the raises a fact reb- issue contract. See & ANN. Tex. Bus. Com.Code (Vernon 2002); alleged § anee on Tex. misrepresentations 2.202 Lewis v. East precludes summary judgment. Fin. Co. 136 Tex. S.W.2d (1941); Johnson, McPherson v. 1968, writ (Tex.Civ.App.-Amarillo Sufficiency the Evidence Motorola, n.r.e.); refd also Inc. v. see evidence, Despite the aforementioned (S.D.Tex. Chapman, F.Supp. holds, majority as a matter of it is 1991) law). (applying Texas show fraud induce- insufficient negotiations preceding ment because it with the express Accordingly, conflicts displace of a written contract should not terms written Courts Fisher struggled have with the issue of terms of the written contract. whether Intern., Gibbons, predicated upon misrepresen- can be Inc. v. fraud Controls 135,141-42 express (Tex.App.-Houston [1st tations conflict with the terms denied). Indeed, experi- Dist.] of a written contract. bench writ When bright-line represented by enced counsel and bar are much in need of executives clarify regard, voluntarily sign in this a contract whose rule to law know, majority they they should not be allowed the rule established well-reasoned, earlier bright, easily applied any claim fraud oral statement specific provi- Despite these laud- inconsistent with by the bench bar. Otherwise, qualities, writing on a sion. Id. at 142. contracts able we are slate, scrap majority nothing and I would be more than a goes clean believe *10 paper. far. Id. too
864 Resolving
Fraudulent Inducement
the Confíict Between
the Parol Evidence Rule and
hand,
On the other
the essenсe of a
Fraudulent Inducement
meeting
involves a
of the minds
parol
When the
evidence rule and the
parties
between the
to the
theory
collide,
of fraudulent
inducement
Evins,
(Tex.
44,
v.
Solis
951 S.W.2d
49
majority
parol
defers to the
evidence
writ).
1997,
App.-Corpus
Thus,
Christi
no
Thus,
rule.
where evidence of fraudulent
formed,
for a contract to be
there must be
inducement is
by
express
contradicted
meeting
a
of the minds as to the same
terms of a
agreement,
written
the majority
thing in the same sense at the same time.
insufficient,
holds the evidence is
as a mat-
Angelou
Union,
v.
Overseas
African
ter of
to satisfy the element
justifi-
(Tex.
269,
App.-Houston [14th
able rebanee. Frankly, if we
writing
2000,
pet.).
no
Dist.]
Where
one
has
slate,
a
might
clean
agree
well
fraudulently
been
induced to execute a
majority’s position.
Certainly, I recog-
agreement,
written
no contract exists be
nize that if a
rely
defendant can
on extrin-
cause
meeting
there is no
of the minds.
(that
sic evidence
conflicts with the ex-
press
agreement)
a written
However, fraud
by
can
be shown
premise
fraudulently
he was
in-
the introduction of extrinsic evidence.
document,
duced to execute the
then the
parol
evidence rule will
pre-
parol evidence rule is eviscerated and a
vent the use of oral testimony to establish
written contraсt is no better that an oral
fraud or mutual mistake. American
one.
Imagination Corp. Texas v. W.R. Pierce
Associates, Inc.,
147,
&
601 S.W.2d
However, as an
appellate
intermediate
1980, writ).
(Tex.Civ.App.-El Paso
no
Ac-
court, our holdings must not conflict or be
cordingly, even where oral evidence tends
inconsistent with the holdings of the Texas
vary, contradict,
or add to the terms of
Court,
Supreme
and that court has held
a
courts have recognized that
that fraud in the
may
inducement
be es
such evidence is admissible to show in-
by
tablished
extrinsic evidence. See San
executing
ducements for
agree-
written
Co.,
tos v.
Refrigerator
Mid-Continent
McRae,
ment. Anderson v.
(Tеx. 1971)
568,
S.W.2d S.W.2d
(holding parol
351,
(Tex.Civ.App.-Texarkana 1973,
360-61
prevent proof
rule will not
writ).
mistake).1
fraud or mutual
Supreme
contract);
acknowledged
1. The
Court has
Thompson
written
Edward
Co. v.
a "review
question
374,
of the Texas
873,
cases on the
Sawyers, 111 Tex.
234 S.W.
conflicting
reveals
decisions and indicates a
(Tex.1921) (one who is entitled to avoid a
resulting
hardly
confusion which can
be re-
by
written contract because it was induced
explained away
solved or
with nice distinc-
longer
by any
stipula-
fraud is no
bound
of its
Reaves,
tions.” Dallas Farm Mach. Co. v.
tions, including
relating
representa-
those
(1957).
Tex.
307 S.W.2d
For
guaranties
tions or
which induced its execu-
example, comparе Prudential Ins. Co. Am.
tion);
Smith,
Rapid
Ry.
Transit
Co. v.
98 Tex.
Assoc., Ltd.,
896 S.W.2d
Jefferson
(1905) (holding
86 S.W.
that a
(Tex.1995) (holding buyer
is not bound
promise
contract induced
made in bad
purchase
written
building
"as
voidable);
faith is
and contrast with Distribu-
is” that he was induced to make because of a
Co.,
Patton,
tors Inv.
et al. v. H.L.
130 Tex.
representation);
Dallas Farm
(1937) (holding
Co.,
Mach.
(embracing
865 situations, of the con- however, the terms m some the say, This not to is under which it tract and the сircumstances mere hint fraud is sufficient overcome may proponent’s evidence arose render the plain of a written contract. language the insufficient, issue, as a fraudulent evi inducement any As factual when the with However, Id. at 178-81. a vital so matter of law. prove dence fact is offered con- Supreme the Court the factors which weak no more than create a mere as to do existence, Schlwmberger assessing when sidered suspicion of the fact’s surmise or to show sufficiency of the evidence no more than a scintilla the the evidence is and, effect, included: the terms justifiable reliance is no evidеnce at all. legal sur- Bros., contract, circumstances of the the City Corpus Inc. v. Heldenfels formation, 39, whether rounding 41 its 832 S.W.2d Christi counsel, parties represented by the evidence is sufficient to es Whether (like the con- parties negotiated whether the justifiable tablish fact particular at at Id. 179-180.2 reliance), length. determined on a case- tract arm’s must be by-case Schlumberger Tech. basis. See Here, express- the terms of the contract Swanson, 171, Corp. v. 959 S.W.2d 181 ly right granted to DRC was state (Tex.1997) (holding that disclaimer of light oral “non-exclusive.” merger always clause will not reliance or representations and written VM Moto- claim). bar a inducemеnt Diesel, and after both before ri/Detroit could that the of a formation of the have readily concede terms justifiably may persuasive be utilized as evi- believed VM Motori/Detroit that the term rebutting allegation alleged explanation dence in an of fraud in Diesel’s inducement, type of when “non-exclusive” referred to the re- express only to placement written conflict with and was inserted of a fraud, prevent from proponent evidence of Detroit Diesel extrinsic it sold com- may exceedingly difficult in breach of contract when face an burden fact, parts to American customers.3 establishing his claim or defеnse. mon North 1989, denied); Simpson higher (Tex.App.-Dallas writ dignity contract would be of no than 102, one); Vest, Dallas, N.A., Billington, an et al. 724 S.W.2d v. v. MBank 705, 1954, n.r.e.); 1987, (Tex.Civ.App.-El (Tex.App.-Dallas S.W.2d Paso writ ref’d Fri Assoc., writ) attaching (holding day no the label of v. Grant Huntsville Plaza 755, (Tex.App.-Houston [1st fraud to the oral does not S.W.2d 1986, writ); Exp. Corp. change character as Tex. Dev. v. Dist.] their inadmissible no Schleder, 134, evidence). (Tex.Civ.App.- 519 S.W.2d 1970, writ). Dallas slightly analysis 2. A different has been used in heightened proof policy re- The behind this assessing sufficiency of evidence of fraud quirement uncertainty and is avoid confu- ulent inducement where the contract is a Id. promissory notes. at sion law of promissory See Tоwn N. note. Nat'l Bank Morris, 492; Wagner v. 658 S.W.2d see also 489, Broaddus, (Tex.1978) 569 S.W.2d (Tex.App.-Houston Dist.] [1st prevail asserting (holding fraud as n.w.h.) (recognizing as a narrow Broaddus note, promissory defense to a affirmative similarly holding nar- restricted to cases “trickery, some arti the defendant must show facts); JBV, Barkley, 1997 WL row Inc. v. fice, device”). See also v. Com Simmons 1997, pet. (Tex.App.-Austin at *6 de- Libano, pania 830 S.W.2d Financiera nied) (recognizing policy Broaddus behind (Tex.App.-Houston Dist.] writ [1st notes). promissory confined to is denied); Hanley, 823 Litton v. factors, Schlumberger (Tex.App.-Houston 3. As to other [1st Dist.] MBank, n.w.h.); summary judgment from record Tripp Village unclear Joint Venture v. Centre, N.A., represented counsеl whether DRC was Lincoln *12 Accordingly, summary judgment
proof “justifiable reliance” was not in-
sufficient as a matter of law.4 a fact
issue exists as to whether DRC was fraud-
ulently induced execute the contract at
issue. The existence of this fact issue
precludes summary judgment. For this
reason, respectfully dissent. DOMINGUEZ,
Pascual al., Appellants,
et
v. PAYNE, Appellee.
Edwin
No. 13-00-741-CV. Texas, Appeals
Court of
Corpus Christi-Edinburg.
Aug. 2003.
Rehearing Sept. Overruled during claiming any agreements representa- the formation of the written contract. such however, appears, par- tions); Edwards, It otherwise that the Fletcher v. 76- negotiated length. ties at arm’s denied) (hold- (Tex.App.-Waco pet. ing surrounding that under the circumstances Plunkett, 4. See also State Burleson Bank of the evi- formation extrinsic (Tex.App.-Waco dence of inducement was sufficient denied) (holding pet. jury could find precluding summary to create a fact issue fraudulently was induced to enter contract though expressly even agreements misrepresentations extrinsic is”). property stated the was sold "as despite merger the inclusion of a clause dis-