Garner v. Corpus Christi National Bank

cerning object ineffectiveness for failure to appellant

the state’s cross-examination of

concerning statements made to court- (denominated (2),

appointed psychiatrist

above), is overruled.

Aрpellant authority cites no and fur conclusions, argument,

nishes no other than remaining sub-points alleging of error Appellant’s point

ineffectiveness. of error is inadequately

multifarious and briefed. Heis (Tex. State,

elbetz v.

Crim.App.1995). Appellant’s point of error

four is overruled and the

trial court is affirmed.

EDELMAN, J., only. concurs the result Wife,

John GARNER and Lanelle Garner, Appellants,

H.

CORPUS CHRISTI NATIONAL

BANK, Appellee.

No. 13-95-105-CV. Texas, Appeals

Court of

Corpus Christi.

April 1997. Overruling Rehearing

Order 22,1997.

May

473 Plan, Management

Executive Stock Securi- (if ty adopted), Plan and other benefits of employees-all executive based on his base applicable. as otherwise Corporation Mercantile Texas owned CCNB when the latter made the 1980 Com- mitment. Mercantile Texas established a (MSP), management security plan and on 29, 1983, March Garner and Mercantile Tex- signed agreement showing as an Garner’s Thereafter, participation in the MSP. Mer- cantile Texas and Southwest Bancshares merged, surviving entity and the became MCorp. known as CCNB became known as Harris, Greenwell, Christi, R. James Andrew M. Corpus MCorp MBank an subsid- Thomas, Christi, Corpus Appel- iary. replaced Harris & MCorp the Mercantile Texas lants. MCorp Security MSP Executive Plan (ESP). 28, 1984, On December Gamer and Brin, B. Nye, Ronald Thomas F. Linda C. MCorp signed agreement showing an Gar- Breck, Brin, Christi, Corpus Brin & Ap- participation ner’s in MCorp the ESP. pellee. Gamer’s and other benefits were SEERDEN, C.J., Before and YÁÑEZ and paid to him in accordance with the 1980 CHAVEZ, JJ. 1, 1986, through Commitment Deсember his date, retirement date. On that Gamer be- OPINION $9,068.18 gan receiving payments per of MCorp month from under his 1984 ESP SEERDEN, Chief Justice. MCorp. payments with These This is a suit to allegedly recover benefits through April May continued of 1989. On employment due under an contract. John 20,1989, MCorp March bankruptcy, filed for and Corpus Lanelle Gamer sued Christi MCorp payments and all ESP ceased. (CCNB) National Bank to collect benefits allegedly employment due under an wife, Lanelle, John Gamer and his sued between CCNB, John Gamer and CCNB. Both alleging that CCNB breached its ob- parties summary moved for judgment. ligations under the 1980 Commitment be- granted trial court CCNB’s motion and de- pay cause it refused to them the ESP bene- nied the Garners’ summary judg- motion for sought money fits. Gamer to recover the appeal by ment. The points Gamers fifteen due to him under the 1980 Commitment. of error. We affirm in and reverse ‍‌​‌​‌​‌​‌​​​​‌‌​​‌​​​‌‌​​​‌​​​‌‌‌‌‌​‌‌‌​‌​​​​​​‌‍summary judgment CCNB moved for on part. and remand in grounds that it did not breach the 1980 1974, In CCNB hired John Gamer as its Commitment, that John Gamer was not president and chief executive officer. At DTPA, consumer under the and that it was point, Corporation some Valero offered him a Employment not liablе under the Personnel job, offer, which he considered. Due to that Services Act. The Gamers also moved for CCNB’s executive committee into entered an summary judgment on their suit. The court employment contract with Garner. The con- granted summary judgment for CCNB on all tract stated that it was a commitment made grounds, summary and it denied the Gamers’ (the 4, August John Gamer as of 1980 judgment appeal motion. This followed. Commitment). It stated that Gamer was to employ, subject continue CCNB’s prevail summary judgment To on a ability motion, to health perform. It also a movant must establish there is stated that genuine any he was be entitled to incentive concerning issue material bonuses, plan, plan, ESOP judg- ICESOP Career fact and that the movant is entitled to re- personnel, payroll, and a matter of law. Tex.R. Civ. P. viewed Garner’s

ment as 166a(c); Booth, 339, Therefore, Cathey v. files. he was familiar tirement curiam). (Tex.1995) (per A defendant provisions with the and administration of conclusively negates at least one who facts set forth Commitment plaintiffs causes of essential elements of therein. conclusively all of action or who establishes requirements of Gatеs’ affidavit met the of an affirmative defense is elements 166a(f) it how showed he be- Rule because summary judgment. Co. entitled to Wornick familiar the facts the affidavit. came (Tex.1993); Casas, 856 S.W.2d clear, Further, positive is affidavit Kennedy,

Montgomery v. 669 S.W.2d credible, direct, and free from con- otherwise (Tex.1984). summary reviewing 310-11 In and inconsistencies. We overrule tradictions judgment, accept as we must true evidence point fifteen. favor, every indulging the nonmovant’s rea resolving sonable inference and all doubts two, By points one and Gamers Prop Nixon v. Mr. the nonmovant’s favor. granting that the court erred in sum assert erty Management 548- mary judgment on their contract claim. unambiguous language They assert that establishes Commitment fifteen, By point assert Garners the promised Garner is entitled to benefits. granting summary the court erred Alternatively, language ambiguous, judgment Jerry for CCNB because Gates’ summary on their precluding judgment testimony affidavit interested wit event, any In Commitment claim. it personal knowledge, ness without and was provide that unambiguously did not from contradictions and otherwise free employee was not liable to for the Gamer clear, pоsitive, and direct. promised. summary motion includ- language operative of the 1980 Com- a Jerry affidavit. Gates was for- ed Gates’ [John “J.G. Gar- CEO, mitment stated as follows: president, mer and director of CCNB. bonus, to be to incentive argue summary judg- ner] is entitled The Gamers that plan, plan, ICESOP Career Executive ESOP proof ment showed that CCNB considered plan, Management Security Plan Stock and employee plan, its benefit but that ESP (if position. adopted) and other benefits executive Gates’ affidavit controverted that Therefore, employees-all not sufficient- on his base or Gates’ affidavit was based direct, clear, ly positive applicable.” and otherwise credi- as otherwise ble and free from contradictions and inconsis- that is is CCNB The Garners’ contention support in tencies order to 1980 benefits liable to Gamer for because CCNB. that he was entitled to Commitment stated 166a(f), Rule Rules of Civil Proce- Texas (if adopted) and Security Plan Management dure, opposing “Supporting that and states employees. other benefits of executive personal be made on knowl- affidavits shall summary judgment motion at- edge, shall set forth such facts as would be grounds. claim on three the contract tacked evidence, and shall show affir- admissible First, argued Commitment 1980 competent to matively is tes- affiant unambiguous document which did was an tify to the matters stated therein.” benefits unless entitle Gamer to MSP that he had stated in his affidavit Gates by adopted CCNB. 1) personal knowledge of the facts because: contract, construing In a written CEO, president, and director of as former is ascer concern of the court to primary CCNB, Commit- had the 1980 he reviewed expressed as parties’ trae intentions tain the ment; 2) and participated he attended Management, Reilly Rangers v. therein. subsequent Board of Directors and (Tex.1987); 527, Inc., 529 Coker S.W.2d 727 meetings at which the Executive Committee (Tex.1983); Coker, 391, 650 393 v. S.W.2d 1980 and Gamer’s Commitment 3) 765 discussed; Cambridge Huggins, v. S.W.2d re- Oil Co. were he thereunder

475 540, 1989, (Tex.App. Corpus 543 Christi CCNB’s second attack on the con — denied). provisions All liability pay writ in a tract claim that it no contract are had considered with reference to the whole in- the ESP benefits because the contract lan Coker, 393; strument. at guage guarantee payment S.W.2d First did not of those Briones, Nat’l parent Victoria Bank v. corporation S.W.2d benefits the event the 632, 1990, 634 (Tex.App. Corpus Christi defaulted. — denied). If writ the written instrument is promise by person A one to answer certain, worded so that it has a definite debt, default, miscarriage for the or of anoth meaning interpretation, then it is not am- person er prom is enforceable unless the biguous, and the court will it as a construe it, agreement, ise or or a memorandum of is Coker, 393; matter of law. 650 S.W.2d at writing signed by party upon Huggins, 765 S.W.2d at 543. liability sought. whom Tex. Bus. & Comm. give language by par We (b)(2) (Vernon used 26.01(a), 1987); § Code Ann. ties in a plain, grammatiсal its Smith, Seckman, Reid, Inc. v. Metro Nat’l meaning definitely appears unless it that this Corp., 817, (Tex.App. 836 S.W.2d —Hous would parties’ Reilly, defeat the writ). intention. 1992, ton [1st Dist.] no This statute 529; Lyons at Montgomery, requires that a written memorandum must 641, 701 S.W.2d When con complete exist every which is within itself in struing instrument, the terms of an we will detail, material and which contains all of the presume they plain, will have their ordi essential elements of the so nary, generally accepted meanings un person can ascertain the contract from the less the instrument itself shows the terms writings resorting testimony. without to oral werе used in a technical or different sense. McCutchin, 230, Cohen v. 565 S.W.2d Milton v. Shrimp Co-op., Aransas (Tex.1978); Aube, Block v. (Tex.App. Corpus Christi writ). (Tex.App. — —Beaumont dism’d). 1983,writ guaranty A secondary creates a obli According Commitment, to the 1980 gation whereby guarantor promises parties intention of the was that Gamer another, answer for the debt of and a credi (if participate would adopted) the MSP may upon guarantor tor call perform and receive other benefits of executive em- primary obligor per once the has failed to ployees. language certain, This has a defi- form. Republic Nat’l Bank v. Northwest meaning and, nite or interpretation, there- Bank, Nat’l fore, ambiguous. is not We will construe the case, In the instant the 1980 Commitment Coker, ‍‌​‌​‌​‌​‌​​​​‌‌​​‌​​​‌‌​​​‌​​​‌‌‌‌‌​‌‌‌​‌​​​​​​‌‍contract as a matter of law. See complete every within in itself material 393; Huggins, S.W.2d at 765 S.W.2d at 543. detail, and it included all the essential ele- Jerry Gates, president CCNB’s former and agreement. ments of the The contract did CEO, in stated his affidavit that CCNB was secondary obligation not create a whereby party not a agreement to Gamer’s 1983 with promised CCNB to answer for the debt of participate Mercantile Texas to in Merean- another, Cohen, including MCorp. See tile’s MSP. CCNB party was also not a to 232; Block, S.W.2d at 718 S.W.2d at 915. agreement Gamer’s 1984 MCorp par- with to The agree- Gamers did not have a written ticipate in MCorp’s ESP. He further stated showing agreed ment that CCNB to become occasions, that on various adopt CCNB did MCorp’s arising liable for debt from Gamer’s programs plans other and MCorp of both and agreement MCorp. ESP with In his However, Mercantile Texas. CCNB’s board deposition, Gamer answered “I don’t recall” adopted of direсtors never and MSP ESP anyone when asked if represent- from CCNB for Gamer’s benefit. him, ed to either before or after the 1980 Commitment, adopt

Since CCNB did not the MSP or in the event that the obli- ESP, Gamer gor was not entitled to quit making receive under an MSP or ESP these benefits as payments, guarantee the 1980 Commit- that CCNB would ment. payments. remainder of the Rakkar, 838 at 629. curred. We

Jerry in Ms affidavit that See Gates stated by grant- hold that trial court not err guaranteed repre- and never never CCNB guarantee ing summary judgment for on to Garner that it would CCNB sented points claim. overrule obligation Texas’ to Garner under breach-of-contract We Mercantile agreement with Mercantile Texas or one and two. his 1983 guarantee MCorp’s obligation that it would six, By point assert that Gamers under Ms 1984 with to Gamer summary judg granting in the court erred MCorp. ment on reliance claim CCNB their because did not show that The Commitment summary judgment did not for on move payment promised guarantee to CCNB claim. Gamer, MCorp ESP to and no summary judgment motion The Garners’ guarantee agreement existed to those other claim alternative reliance as an asserted the Therefore, liability had no CCNB benefits. a contract if the trial court did find that the ESP pay benefits. matter The trial as a of law. established attack on con CCNB’s third summary judgment granted court CCNB’s fully performed claim was tract that it all court, by grounds. motion on all The trial obligations under To the 1980 Commitment. summary granting judgment motion contract, party prove breach of must show claim, contract on the found that a 1) 2) upon, the existence of the contract sued finding TMs excluded was established. contract, compliance with the terms to move did not have reliance claim. CCNB 3) party’s other breach that con summary judgment on that claim. We for Rakkar, St. Paul Co. v. tract. Ins. overrule six. (Tex.App. writ —Dallas By point eight, the assert Garners demed). summary granting erred court provided The Commitment that Gar- claim, by point judgment fraud on their working ner was to continue CCNB sub- thirteen, erred they assert that the court ject ability perform. to health and his negli judgment granting summary on their receive, salary contract stated the he was to and tortious-interfer gent-misrepresentation along other benefits. They then- claims. base ence-with-contract affidavit, Jerry In Ms Gates statеd did not fact that assertions on the CCNB according to the payroll records Garner’s these claims. judgment move for on CCNB, personnel files at Gamer re- summary did not move for ceived all the benefits wMeh 1980 Com- Accordingly, even claims. on these required pay mitment CCNB to His him. merit though may appear to have no they paid and other benefits were him claim, disposition of the contract view of our accordance with the 1980 Commitment summarily may not be the related claims through 1, 1986, December of his date mo in the disposed their inclusion of absent time, retiremеnt. At that he also received v. summary judgment. Chessher tion for See lump-sum payment $584,116.41 of re- 563, Bell Tel. 658 S.W.2d Southwestern spect MCorp $88,- to Ms Plan retirement and (Tex.1983). However, position 564 081.14 from Ms Money Max Plan. Garner plead these did not is that the Gamers and his wife eligible for remained medical claims. $5,000 insurance and a life received insurance policy on paid Gamer’s a life. CCNB Garner peti the uphold should A court fee, consulting $100,000 per calculated at per a of action that containing a cause tion year, 1,1986 from through December Decem- specif may reasonably infer what from son 31,1990. ber cause stated, if an ically element even alleged. Smith- specifically paid of action is not Since CCNB all the and bene- 347, Doe, Corp. v. 903 S.W.2d fits to Gamer Kline Beecham wMch the 1980 Commitment Kerr, (Tex.1995); S.W.2d required Boyles v. 855 it to pay, fully performed 354 CCNB must contract, (Tex.1993). Still, 593, pleadings the 601 and no of breach contract oc- asserting the claims for fraud give of the claims asserted. Garners were reasonable notice Doe, misrepresentation. De negligent and See at 354. S.W.2d Santis, 688; Stone, 793 S.W.2d at 554 S.W.2d The elements of actionable fraud Ins., 753; 185; at Farmers S.W.2d at 1) representation that a are: material was S.B.F.I., Inc., at 245. 830 S.W.2d 2) 3) made; false; that it was that the when of The elements tortious interfer speaker made it it he knew was false or 1) prospective ence with rea recklessly any knowledge it are: a made without of 4) assertion; probability parties sonable that the positive and would the truth as a relationship; have entered into a contractual party made it with the he intention the 2) 5) it; the upon party by act intentional and malicious act should that the acted in it; 6) relationship upon prevented defendant the thereby reliance and that he purpose harming from the injury. occurring with of suffered v. DeSantis Wackenhut 3) plaintiff; 670, (Tex.1990), privi the defendant lacked Corp., 793 S.W.2d cert. 4) denied, lege justification act; 1048, 755, or to do U.S. 111 S.Ct. (1991); damage actual Lawyers v. harm or resulted from the ‍‌​‌​‌​‌​‌​​​​‌‌​​‌​​​‌‌​​​‌​​​‌‌‌‌‌​‌‌‌​‌​​​​​​‌‍L.Ed.2d 775 Stone Title 183, Corp., Corp. defendant’s interference. Exxon v. Ins. 554 S.W.2d 648, Allsup, 659 (Tex.App. 808 S.W.2d —Cor prevail negligent-misrepre To on a denied). pus 1991, Christi writ suit, plaintiff prove sentation must that: allegations in the peti- third-amended 1) representation the defendant made the place tion wеre not sufficient on course of or in its business a transaction notice that the were alleging Gamers a cause 2) pecuniary interest; it which has of action for tortious interference with con- supplied defendant false information for the tract. 3) guidance business; of others in their defendant did not exercise reasonable care or summary Since not CCNB did move for competence in obtaining communicating judgment negli- on the fraud Gamers’ information; 4) plaintiff suffered claims, gent-misrepresentation it was en- pecuniary by justifiably relying loss on the summary titled on those claims. representation. Southwestern Clinic Chessher, Bone at 564. We sustain of & Joint Diseases v. Ins. Group, Farmers 850 point eight. point We sustain thirteen relat- 750, 753 (Tex.App. Corpus Christi ing negligent to the misrepresenta- Gamers’ — 1993, writ); no First Interstate Bank claim, tion and we overrule that of S.B.F.I., Inc., (Tex. 239, 830 S.W.2d relating thirteen tortious interference writ). 1992, App. claim. —Dallas The Gamers’ petition third-amended al- eleven, By point the Garners assert leged that Gamer and CCNB entered into an that the in granting trial court erred sum on August that CCNB mary judgment CCNB on for their DTPA partially performed agreement, but that claim because a fact issue exists whether totally perform all the terms and Gamer was a consumer. agreement. conditions of Paragraph V of summary judg CCNB moved petition consequence stated that “as ment on the basis Gamer was not representations the Defendant’s [CCNB’s] question consumer as a matter law. The upon relied, which reasonably the Plaintiffs plaintiff whether a is a consumer under damages....” the Plaintiffs have suffered question the DTPA is a of law for trial paragraph separate This from the Gar- Walker, court. Johnson v. remaining ners’ claims in their third-amend- 1991, (Tex.App. 187 Worth writ de —Fort petition. ed nied); 681 v. Nat'l Oil Reed Israel allegations The show that CCNB made 228, (Tex.App. [1st S.W.2d —Houston they representations to the Gamers which writ). 1984,no Dist.] upon. perform relied CCNB’s failure to Barnes, Mfg. v. damages. Melody In Home Co. caused them These al- (Tex.1987), gave supreme legations that CCNB reasonable notice must into the 1980 to furnish plaintiffs quali- that DTPA entered Commitment court stated Based consumers, consideration. as in services to CCNB for fy as that term defined facts, a as 17.45(4) Garner was not consumer on these the DTPA1 to maintain a section of Tеx. Bus. & Comm. defined in the DTPA. See of action under section 17.50 of private cause (Vernon (4) 1987); (2), 17.45(1), § status, Code Ann. the Act. To establish DTPA consumer Baker, at 392-93. 616 S.W.2d or plaintiff sought acquired a must have lease, by purchase goods or or services argue during that Gar The Gamers purchased goods or or leased must services CCNB, sought employment ner’s with he Barnes, complaint. basis form it and benefits from that retire retirement 351-52; DeLay, S.W.2d at Johnson un “goods” ment are or “services” (Tex.App. Corpus Christi — However, der DTPA. evidence denied). 1991,writ adopt MSP that CCNB did not showed tangible “goods” The meаns chattels word Although or for Garner’s benefit. the ESP use, property purchased or leased for or real may have retirement benefits Gamer desired work, labor, “services” means word Commitment, he not ac under did use, for in- purchased or service or leased or under the quire any MSP ESP benefits cluding furnished in connection with services hold the trial court did that contract. We of repair goods. the sale or Tex. Bus. & summary judgment on by granting not err (Vernon 17.45(1), (2), § Ann. Comm.Code We overrule DTPA claim. Gamers’ 1987). point eleven. helps A case to resolve issue twelve, argue By pоint the Garners Pac. this is Baker v. Missouri Truck granting sum trial court erred Lines, Inc,, (Tex.Civ.App.— 616 S.W.2d 389 mary Employ judgment on their Personnel writ). Houston In that [1st Dist.] (PESA) Act claim a ment because Services ease, signed a Baker Missouri em fact whether CCNB was an issue exists (MoPac) freight. Pacific to deliver MoPac ployment agency PESA. under contract, ended the and Baker sued under protects person improper from PESA summary for the DTPA. MoPac moved by personnel acts as a conduct another who ground on the that Baker was not owner, operator capacity an sеrvice in the appellate The court a consumer. stated: counselor, service, agent employ- or or tangible acquire any Baker did not chattels ee the service. Stat. Ann. Tex.Rev.Civ. Missouri Pacific. property or real from 3(a) (Vernon 5221a-7, Supp.1997). § art. use purchase or lease for Neither did he summary judgment on CCNB moved work, sought Baker any labor or service. to applies personnel PESA the basis that whereby he would to into a contract enter supply parties to third labor services to Missouri Pa- be furnish service able to apрly two-party employment and does cific for consideration.... contracts. activity an “services” includes term by party personnel one another. “Ser- service means: on behalf of states PESA or to work labor. vices” is similar nature or a fee person for a fee without who Lewis, National Bank v. Riverside directly or attempts procure or offers matter of law S.W.2d 169 As a an employment for indirectly permanent Baker not a as defined “consumer” attempts pro- procures or employee or Trade Practices Act.... Deceptive employ- for an permanent employee cure a person who Baker, The term includes a er.... at 392-93. as: or advertises offers the facilities of casé, In the acquire instant Gamer did not (A) consulting or an search executive by purchase tangible any or lease or real service; property. purchase or He also lease service; (B) work, labor, out-placement He an any for use or services. 17.45(4) acquires by pur- corporation provides pertinent part: ... who seeks or 1. Section ” “ lease, individual, any goоds partnership, services.... or means chase 'Consumer' the service; court found (C) to file it. The trial placement an overseas file of court to did not obtain leave Gamers (D) service; job listing they petition and that fourth-amended their service; (E) or consulting personnel court not consider untimely filed it. The (F) job provides a resume service petition. the fourth-amended research, investigation, or evalu- market ation. of Civil According to Texas Rules 1(5) 5521a-7, § art. Tex.Rev.Civ. Stat. Ann. a trial court has Procedure 63 and (Vernon Supp.1997). 1) refuse an amendment unless: disсretion to ‍‌​‌​‌​‌​‌​​​​‌‌​​‌​​​‌‌​​​‌​​​‌‌‌‌‌​‌‌‌​‌​​​​​​‌‍presents of sur opposing party evidence Jerry stated in his affidavit Gates 2) amendment prise prejudice; or personnel department which or CCNB had a defense, or depart- The a new cause of action personnel its functions. asserts handled face, oppos handling prejudicial on its and the only in the thus is ment was involved objects to the Green ing party from who amendment. employment inquiries persons Lloyds working halgh Ins. for CCNB. Service were interested ser- department personnel did not act as a from a persons seeking еmployment for

vice case, the fourth- In the instant since never at- party. department This third cause of petition asserted a new amended permanent employment tempted procure to action, prejudicial on its face. Due it was employer than for an other CCNB. it, objection court had the trial employment per- was not involved pleading. the amended discretion to refuse business. It has never acted sonnel services Greenhalgh, hold 787 S.W.2d at 939. We See service, consulting as an executive search or that the trial court did not abuse its discre- service, out-placement or an overseas by refusing pleading. We tion the amended placement job listing It service. was not a point fourteen. overrule service, service, personnel-consulting or a disposition points, our of the above Due to provided job-market in- resume service that remaining points of we need not address the research, vestigation, or evaluation. Tex.R.App. 90(a). P. error. This evidence that CCNB did not showed RE- We REVERSE Therefore, personnel serve as a service. proceedings on MAND the cаse for further subject any was violation of PESA. We negligent-misrepresentation fraud and hold that the trial court did not err when it claims. AFFIRM the remainder of the We granted summary judgment on the Garners’ judgment. point PESA claim. We overrule twelve. fourteen, By as Gamers OPINION ON MOTIONS sert that the trial court abused its discretion FOR REHEARING granting CCNB’s motion to strike their appellee have filed appellants Both petition. fourth-amended rehearing. we overrule motions for While summary judg- The court heard CCNB’s rehearing, ad- motions for we write to 10, 1994, ment motion on June and on De- complaints raised therein. dress 6, 1995, January cember 1994. On Appellants complain, among other petition their Gamers filed fourth-amended their things, that this Court failed to address which included a claim for tortious interfer- elaims, Bank never and that ence with contract. CCNB did not move ERISA1 summary judgment on their reli summary judgment moved for on that claim because heard, points By fourth and fifth ance claim. their when its motion was filed and error, trial appellants complain that claim suit. Gamers’ summary judgment granting its motion to strike the fourth- court erred CCNB filed appellee nev grounds claims because petition on the on their ERISA amended summary judgment on those er moved for Gamers did not seek or obtain leave court IQOletseq. § Security Employee Act of 1974. See 29 U.S.C. 1. Retirement Income However, recently have a fact issue Texas courts claims and the evidence raised separate of cause of thereon. denied the existence a for detrimental reliance. See action tort Original By Third Amended Pe- Plaintiffs’ University System Courtney, 946 Texas v. tition, of appellants specifically pleaded breach (Tex.App.—Fort Worth S.W.2d agreement. stating employment of the After n.w.h.). any found Neither have we theory, appel- their breach of contract authority suggest by itself that “reliance” pleaded following: lants Rather, it independent is an cause of action. IV. of other causes of action is element or unlawful conduct of the which the tortious Alternatively, consequence as a of the upon” “relied to the detriment defendant is representations, are [Bank’s] [Garners] plaintiff. of the to the benefits described entitled Plan, and, addition, Security Executive case, Accordingly, present para- in the fees, attorney’s are entitled to reasonable graph petition not five of the Garner’s set Chapter applicable under federal law. See ad- out a “reliance” claim that had to be Code. 18 of Title 29 United States summary judgment in . motion as dressed [ERISA] action, merely plead- separate of but cause motion, By summary judgment its claims in ed reliance as of its other pre- Bank contended that was entitled properly overruled tort. We by pleaded vail on all causes of action appellants’ point of sixth error. particular, In the Bank asserted Garners. Security that it did not breach the Executive brings Bank’s com This us to the alleged by Plan Breach of that Garners. misrepre plaint rehearing on that fraud and by pay required plan failure to never raised in the sentation claims were necessary was a element of both the contract pleadings and should have been remand claim claim raised in state and the ERISA for trial. ed 1132(a)(1)(B) § court. See 29 U.S.C. & (e)(1); Forbau Aetna Ins. Life petition uphold A court should as According- n. 1 may reasonably to a cause of action be ly, summary judg- the Bank was entitled to stated, specifically from is even inferred what claim, ment on the as well as the ERISA if an of action is not element of the cause urged by contract claim the Gamers. Beecham, alleged. specifically SmithKline encompasses claim the state-law ERISA already set 903 S.W.2d at 354r-55. We have due, accordingly claim for benefits opinion out in our the elements of fraud and dependent upon finding the Bank negligent misrepresentation, both which duty provide breached its such benefits. necessary misrepre elements of include original opinion sufficiently If our DеSantis, reliance. sentation and See clear, appellants’ fourth we herein overrule Clinic, 688; S.W.2d at Southwestern points and fifth of error. spe at 753. As these elements were error, By appel their sixth cifically peti alleged paragraph five of the Bank complain lants also never tion, petition we conclude that the Gamer’s summary judgment moved for on their reli fairly plead a cause action fraud Original ance claim. Their Third Amended misrepresentation. following

Petition stated the claim: rehearing. overrule both motions for We

V.

Alternatively, consequence of the ‍‌​‌​‌​‌​‌​​​​‌‌​​‌​​​‌‌​​​‌​​​‌‌‌‌‌​‌‌‌​‌​​​​​​‌‍as a representations upon which the

[Bank’s] relied, reasonably [Gamers]

[Gamers] damages in an amount that

have suffered jurisdictional minimum limits

exceeds the

of this Court.

Case Details

Case Name: Garner v. Corpus Christi National Bank

Court Name: Court of Appeals of Texas

Date Published: May 22, 1997

Citation: 944 S.W.2d 469

Docket Number: 13-95-105-CV

Court Abbreviation: Tex. App.