NO. 05-10-00709 IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS LA PROVIDENCIA FOOD PRODUCTS, CO. and ROBERTO MEZA, Individually, Appellants V. SUPER PLAZA STORES, LLC, Appellee On Appeal from the 116 th Judicial District Court, Dallas, Texas, the Honorable Bruce Priddy, Presiding REPLY BRIEF OF APPELLANTS Rosa R. Orenstein State Bar No. 17153200 William O. Holston, Jr., P.C. William O. Holston, Jr. State BarNo. 09915300 Carol Lynn Wolfram, Of Counsel State Bar No. 18546500 Nathan M. Nichols State Bar No. 02060336 Oral Argument Requested SULLIVAN & HOLSTON a Partnership of Professional Corporations 4131 N. Central Expy. Suite 980 Dallas, Texas 75204 214.528.9560 214.528.9581 (fax) ATTORNEYS FOR APPELLANTS
TABLE OF CONTENTS TABLE OF CONTENTS....ii INDEX OF AUTHORITIES... :....iii REPLY ISSUES PRESENTED... 2 ARGUMENT AND AUTHORITIES... 3 I. APPELLEE HAS ABANDONDED THE SOLE BASIS FOR SUMMARY JUDGMENT WHICH IT PLEAD, AND NOW RELIES ONA THEORY IT DID NOT PLEAD... 3 II. III. IV. APPELLEE'S ARGUMENT IS OUTSIDE ITS PLEADINGS AND MUST BE DISREGARDED... 4 THE PAROL EVIDENCE RULE DOES NOT APPLY TO APPELLANTS' OFFER TO SEE THE STORES... 6 APPELLEE FAILED TO OBJECT TO APPELLANTS' CONTROVERTING EVIDENCE AND HAS CONSENTED TO ITS CONSIDERATION... 9 CONCLUSION... 10 PRAYER... 10 11
INDEX OF AUTHORITIES Cases Baroid Equipment, Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App. - Houston [1 st Dist.] 2005, pet. denied)... 8 Ceballos v. El Paso Health Care Sys., 881 S.W.2d 439,445... (Tex. App. - El Paso 1994, writ denied).... Gannon v. Baker, 818 S.W.2d 754,756 (Tex. 1991)... 9 Martin v. Durden, 965 S.W.2d 562, 565... (Tex. App. - Houston [14th Dist.] 1997, pet. denied)... 9 Peters v. Lerew, 139 S.W.2d 321, 327... (Tex. Civ. App. - Galveston 1940, writ dism'd judgmn't cor.)... 8 Travis v. The City of Mesquite, 830 S. W.2d 94, 100 (Tex. 1992)... 5 Trusty v. Strayhorn, 87 S.W.3d 756, 763 (Tex. App. - Texarkana 2002, no pet.)... 9 Via Net, u.s. Delivery Systems et al v. TIG Insurance Company, 211 S. W.3d 310,... 313 (Tex. 2006)... 5 Rules TEX. R. CIY. P. 166a(c)... 8 111
NO. 05-10-00709 IN THE COURT OF APPEALS FIFTH DISTRICT OF TEXAS DALLAS LA PROVIDENCIA FOOD PRODUCTS, CO. and ROBERTO MEZA, Individually, Appellants v. SUPER PLAZA STORES, LLC, Appellee On Appeal from the 116 th Judicial District Court, Dallas, Texas, the Honorable Bruce Priddy, Presiding REPLY BRIEF OF APPELLANTS TO THE HONORABLE COURT OF APPEALS: COME NOW, LA PROVIDENCIA FOOD PRODUCTS, CO., and ROBERTO MEZA, APPELLANTS, Defendants below, and file their reply brief in support of their appeal, and as grounds for reversal of the trial court's judgment respectfully show as follows: 1
REPLY ISSUES PRESENTED I. APPELLEE HAS ABANDONDED THE SOLE BASIS FOR SUMMARY JUDGMENT WHICH IT PLEAD, AND NOW RELIES ON A THEORY IT DID NOT PLEAD. II. III. IV. APPELLEE'S ARGUMENT IS OUTSIDE ITS PLEADINGS AND MUST BE DISREGARDED. THE PAROL EVIDENCE RULE DOES NOT APPLY TO APPELLANTS' OFFER TO SELL THE STORES. APPELLEE FAILED TO OBJECT TO APPELLANTS' CONTROVERTING EVIDENCE AND HAS CONSENTED TO ITS CONSIDERATION. 2
ARGUMENTS AND AUTHORITIES I. APPELLEE HAS ABANDONDED THE SOLE BASIS FOR SUMMARY JUDGMENT WHICH IT PLEADED, AND NOW RELIES ON A THEORY IT DID NOT PLEAD. Appellee's entire theory of fraud at the trial court plainly rested upon its contention that Appellants were its agents. Contrary to Appellee's position now presented for the first time at the appellate level, i.e., that agency is not required for liability, such was not the case before the trial court. For example, Appellee's Original Petition includes the following: a) "Since La Providencia and Super Plaza had agreed La Providencia and Meza would no longer operate in the grocery store business in North Texas, La Providencia and Meza agreed to work with Super Plaza to facilitate Super Plaza acquiring the three stores offered to La Providencia by Grocers Supply. The parties never intended that La Providencia would acquire or operate the Stores for its own benefit, but merely as the agent of Super Plaza." (Plaintiffs Original Petition, Para. 9, c.r. 8-9); b) "Operating as the agent for Super Plaza... "; "Relying upon Meza's representations, as the agent of Super Plaza... " (Plaintiffs Original Petition, Para. 10, C.R. 9); c) "Again, at all times Super Plaza believed Meza, and La Providencia, were Super Plaza's agents... " (Plaintiffs Original Petition, Para. 13, C.R. 11); 3
d) "CAUSES OF ACTION... FRAUD "Super Plaza incorporates by reference paragraphs 1 through 16 inclusive as if fully set forth at length herein." (Plaintifi's Original Petition, Para. 17, c.r. 13); e) "As stated above, La Providencia, and Roberto Meza, acted as the agents of Super Plaza in the negotiation of the purchase price of the Stores with Grocers Supply." (Plaintifi's Original Petition, Para. 18, C.R. 13). Appellee's Motion for Partial Summary Judgment and its proffered summary judgment evidence are replete with similar references to Appellee's sole theory of liability against Appellants. Perhaps because it is so abundantly clear that there are genuine issues of material fact with regard to Appellee's fraud claim, Appellee consciously determined not to brief or address with this Court the sole theory upon which it sought and obtained a judgment against Appellants at the trial court. Indeed, a review of Appellee's brief reveals a careful excision of all references to agency. Appellee even objected that Appellants briefed the issue, stating the Appellants' statement of facts was too extensive. As a result, the only pertinent presentation to this Court for the reversal or affirmance of the trial court's judgment has been made by Appellants. Appellee apparently has chosen to abandon its sole theory of liability presented to the court below. II. APPELLEE'S ARGUMENT IS OUTSIDE ITS PLEADINGS AND MUST BE DISREGARDED. After Appellants filed their brief in this court, for the first time, Appellee has attempted to switch its theory of liability. It abandoned its agency theory of liability to 4
uphold its fraud judgment, and is urging fraud liability via a parol evidence theory based on a partial contract provided to it by Appellants, a contract to which it was not a party. However, as set forth above, Appellee's new theory is not pleaded in its Original Petition, and further, was not pleaded or argued in its Motion for Partial Summary Judgment. Texas summary judgment practice always has required the theory of liability presented via the motion for summary judgment to have been presented in the movant's pleadings. See Tex. R. Civ. P. 166a( c). If summary judgment is sought on a matter that has not been pleaded, the non-movant has two choices. It can object to the lack of supporting pleadings, or try the issue by consent. See Via Net, Us. Delivery Systems et at v. TIG Insurance Company, 2ll S.W.3d 310,313 (Tex. 2006). "[Appellants] are not required to guess what unpleaded claims might apply and negate them." Id. Further, "[i]n an appeal from a summary judgment, issues to be reviewed by the appellate court must have been actually presented to and considered by the trial court. A summary judgment cannot be affirmed on a ground not specifically presented in the motion for summary judgment.... Consequently, never having been presented to the trial court, the question cannot now be urged as a ground for affirming the summary judgment." Travis v. The City of Mesquite, 830 S. W.2d 94, 100 (Tex. 1992). As Appellee's new theory was neither pleaded nor presented in its Motion for Partial Summary Judgment, it must be disregarded as a basis for affirmance of the trial court's judgment. 5
III. THE PAROL EVIDENCE RULE DOES NOT APPLY TO APPELLANTS' OFFER TO SELL THE STORES. Moreover, even were this Court to consider Appellee's new theory of fraud liability, the theory must be rejected because it is not the law. Unfortunately now for Appellee, it has briefed itself into a conundrum. As has been presented already, during the course of negotiations for a contract of purchase for three grocery stores between La Providencia, as seller, and Appellee, as buyer, Meza faxed a copy ofthe Partial Assignment contract for the stores which had been entered into between Grocers Supply and Appellants. Meza provided Appellee a copy of the Partial Assignment with the amount that La Providencia would sell the stores to Appellee, and that Appellee would be required to pay for each of the stores. (C.R. 153; MezaAff., p. 6, ~23.) Meza did so by changing the last page of the Partial Assignment to reflect the selling price between La Providencia and Appellee, because it was the most convenient way to send Appellee the information. (C.R. 149-50; Meza Aff., p. 2-3; ~9.) Appellants did not tell Appellee that the faxed prices were the purchase price for the stores as between La Providencia and Grocers Supply. Id. The Partial Assignment was not a part of the contract between La Providencia and Appellant. In fact, Mr. Meza testified in his affidavit: "I was only telling them what I was willing to sell the stores to them for. I was not acting on their behalf and never agreed with Super Plaza that I would be representing their interests. I was negotiating a price for sale, and that's what I communicated to them." (C.R. 150; MezaAff., p. 3, ~12). 6
Indeed, the summary judgment record reflects that Appellee solicited an offer to sell from La Providencia, which precipitated Meza's transmission of the fax which reflected the amounts at which La Providencia was willing to sell. (C.R. 149; Meza Aff., p. 2, ~9). Mr. Meza was negotiating a price for sale of the stores from La Providencia to Appellee, and "that's what [he] communicated to them." (C.R. 150; MezaAff., p. 3, ~12). In other words, the fax to Appellee was an offer to sell, not a contract to which the parol evidence rule would apply. Appellee contends that fraud has been proved as a matter of law because Meza faxed a partial contract to Appellee to which it was not a party. Appellee has argued that the partial contract is not ambiguous, and that because it references that the addendum attached to the original Partial Assignment between La Providencia and Grocers Supply is the purchase price to be paid by La Providencia to Grocers Supply, it means as a matter of law that Appellants made a false representation to Appellee when Meza submitted the offer to sell. Appellee has argued that this Court must ignore all other evidence properly before the trial court except that which is now presented by Appellee in its brief. Appellee necessarily has argued, without specifically stating, that its argument prevails because no parol evidence is admissible to controvert Appellee's position that the faxed offer to sell to Appellee was a representation to Appellee regarding the purchase price that La Providencia paid to Grocers Supply. There simply is no other way for Appellee to arrive at its conclusion which it has presented to this Court. By stating that the fax is not ambiguous, and that it must be construed within the "four comers" of the document, Appellee is asking 7
the Court to disregard all parol evidence which places the faxed offer to sell to Appellee in its proper context. Appellee's argument is not the law. The parol evidence rule does not apply against a nonparty to a contract. "The general rule is that, before one contract is merged into another, the last contract must be between the same parties as the first, must embrace the same subject matter, and must have been so intended by the parties. The rule that parol evidence shall not be received to alter or contradict a written instrument applies to controversies between parties to it, and those claiming under them, but not to strangers." Baroid Equipment, Inc. v. Odeco Drilling, Inc., 184 S.W.3d 1, 13 (Tex. App. - Houston [lst Dist.] 2005, pet. denied); Peters v. Lerew, l39 S.W.2d 321, 327 (Tex. Civ. App. - Galveston 1940, writ dism'd judgmn't cor.). Super Plaza is a stranger to that Partial Assignment. The testimony of Mr. Meza was simply explaining the purpose of the fax. He was not seeking to explain the meaning of a contract to which Super Plaza was a party. Hence, there was no reason or requirement to plead ambiguity. The summary judgment evidence raises material issues of fact which controvert any purported agency relationship between Appellants and Appellee. Accordingly, Appellee is, at a minimum, an arguable stranger to the contract. Appellee is a stranger to the contract if Appellants are not its agents. Baroid Equipment, Inc., supra; Peters v. Lerew, supra. As a result, the parol evidence rule does not apply as a matter of law, and the fax cannot be construed as a matter of law. It follows that no fraud has been proved as a matter of law. 8
Further, the parol evidence rule applies only to contractual or jural writings evidencing the creation, modification, termination or securing of a particular right or obligation. Gannon v. Baker, 818 S.W.2d 754, 756 (Tex. 1991). Similar to the Supreme Court's statement that corporate records are generally not operative legal transactions for the purpose of the parol evidence rule, neither is the faxed offer to sell delivered by Meza to Appellee. See id. Appellants therefore are entitled to have this Court consider all of their evidence which was submitted to the trial court, which evidence places the offer to sell in its proper context, and which raises material issues of genuine fact which require a reversal of the trial court's judgment. IV. APPELLEE FAILED TO OBJECT TO APPELLANTS' CONTROVERTING EVIDENCE AND HAS CONSENTED TO ITS CONSIDERATION. It is the better rule that a party seeking affirmance of a summary judgment, just as a party seeking reversal, is required to object to claimed defects in the form of summary judgment affidavits. Trusty v. Strayhorn, 87 S.W.3d 756, 763 (Tex. App. - Texarkana 2002, no pet.); accord, Martin v. Durden, 965 S.W.2d 562, 565 (Tex. App. - Houston [14th Dist.] 1997, pet. denied). I Appellee failed to object to any of Appellants' evidence before the trial court. Accordingly, any argument that this Court cannot and should not consider the entirety of Appellants' trial court evidence has been waived on appeal. Trusty v. Strayhorn, supra; Martin v. Durden, supra. 1 See contra. Ceballos v. El Paso Health Care Sys., 881 S,W,2d 439,445 (Tex. App. - EI Paso 1994, writ denied). 9
Based upon the summary judgment record, the judgment cannot be sustained. CONCLUSION Appellee implicitly has conceded that there are material issues of genuine fact with regard to its theory of liability it pleaded and presented to the trial court, upon which the trial court acted and entered summary judgment against Appellants. Appellee is not entitled, as it has presumed, to switch its theory of liability on appeal. Appellee's new theory, however, even if considered, still is not sufficient to sustain the judgment below. The trial court's judgment should be reversed, and this case remanded for a jury trial. PRAYER For all of the foregoing reasons, as well as all of the reasons previously argued in Appellants' Brief previously submitted, there is no appropriate basis under the law or the facts of the summary judgment record before this Court upon which the trial court's final summary judgment in this case may be affirmed. Appellants respectfully request the Court to reverse the trial court's judgment in its entirety, remand this case for a new trial, tax the costs of this appeal against Appellee, and for such other and further relief as is just. 10
Respectfully submitted, SULLIVAN & HOLSTON a Partners ip of Professional Corporations Rosa. r nstein State Bar No. 17153200 William o. Holston, Jr., P.C. William O. Holston, Jr. State BarNo. 09915300 Carol Lynn Wolfram, Of Counsel State Bar No. 18546500 Nathan M. Nichols State Bar No. 02060336 4131 N. Central Expy. Suite 980 Dallas, Texas 75204 214.528.9560 214.528.9581 (fax) ATTORNEYS FOR APPELLANTS CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served in accordance with the Texas Rules of Civil Procedure and Tex. R. App. P. 9.5, on counsel of record on this ~ day of November, 2010, via certified mail, return receipt to: Via Certified Mail No. 71604128710010003320 Andrew H. Roberts Kenneth W. Sloan Sloan & Roberts, PLLC 5950 Berkshire Lane, Suite 450 Dallas, TX 75225 11