                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                                NO. 2-09-345-CV


PAUL SCHAMBACHER                                      APPELLANT

                                           V.

R.E.I ELECTRIC, INC. AND                              APPELLEES
GARLAND INSULATING, LTD.

                                         AND

R.E.I. ELECTRIC, INC.                                 APPELLANT

                                           V.

PAUL SCHAMBACHER                                       APPELLEE

                                       ------------

           FROM THE 67TH DISTRICT COURT OF TARRANT COUNTY

                                       ------------

                         MEMORANDUM OPINION 1

                                       ------------




     1
          See Tex. R. App. P. 47.4.
                                  I. INTRODUCTION

       Appellant Paul Schambacher appeals the trial court’s grant of summary

judgment in favor of Appellees R.E.I. Electric, Inc. and Garland Insulating, Ltd. on

his claims for breach of contract, breach of implied and express warranties, and

negligence. R.E.I. appeals the trial court’s grant of summary judgment in favor of

Schambacher on its fraud counterclaim. W e will affirm in part and reverse and

remand in part.

                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

       In 2005, Schambacher purchased a vacant lot at 932 Tealwood Drive in

Keller. He decided to build a house on the lot and, along with his wife, executed a

“Residential Construction Contract, Fixed Price” (“construction contract”) with SCC

Homes, Ltd. D.B.A. Sterling Classic Custom Homes (“SCC”). Under the July 2005

construction contract, SCC agreed to “construct improvements on” the lot in

exchange for the Schambachers’ agreement to pay SCC $513,580 (the “housing

project”).

       In September 2005, SCC entered into an “Independent Contractor–Supplier

Base Agreement” (“independent contractor agreement”) with Garland whereby

Garland agreed to perform work for SCC at SCC’s request. The independent

contractor agreement became effective from the date of its execution and continued

until terminated by either party upon thirty days’ written notice.




                                          2
      R.E.I. performed the electrical work on the housing project. It billed invoices

to SCC on December 23, 2005; March 15, 2006; and March 22, 2006. Under the

“Bill To” section of a February 27, 2006 R.E.I. invoice, “Sterling Classic Custom

Homes” is crossed out and “Paul” is written in. According to Edwin Haugen, an

R.E.I. representative, R.E.I had performed jobs for SCC in the past, but it had not

entered into written contracts with SCC for those jobs.

      Garland performed the insulation services for the housing project. It billed

invoices to SCC on January 6, 2006, and March 21, 2006. At the time of trial

Garland had performed insulation jobs for SCC for about two to three years.

      On March 22, 2006, the house, which was “99.9 percent complete,” was

destroyed by a fire. Assurance Company of America (“Assurance”), Schambacher’s

insurer, pursued a subrogation action against R.E.I. and Garland, eventually settled

and dismissed its claims against R.E.I. and Garland, paid Schambacher

approximately $495,000 under the builder’s risk insurance policy that Schambacher

had obtained on the house, and assigned “the entirety of its claim,” which included

a fraud claim against Schambacher, to R.E.I. and Garland.

      Meanwhile, Schambacher intervened in the suit and asserted claims against

R.E.I. and Garland for negligence, breach of express and implied warranties, breach

of contract, and violations under the Deceptive Trade Practices Act (“DTPA”). 2 R.E.I.

asserted a counterclaim against Schambacher for fraud based on a claim for

      2
           Schambacher raises no issue in these appeals regarding the DTPA claims.

                                          3
reimbursement in the amount of $77,000 that Schambacher had submitted to

Assurance and that Assurance had paid to him arising out of a fee that he had

purportedly paid to SCC to serve as the general contractor for the housing project.

      Discovery conducted by the parties showed that Schambacher has a “tight

relationship” with SCC—he is a former superintendent for SCC and his brother, Scott

Schambacher, owns SCC.            Discovery also revealed that although both

Schambacher and Scott (on behalf of SCC) identified SCC as the “general

contractor” for the housing project, Schambacher and SCC had agreed to an

unwritten “arrangement” that substantially limited SCC’s duties as general contractor

for the housing project. Specifically, according to Schambacher and SCC, SCC’s

role as general contractor was limited to (1) providing Schambacher with a list of

subcontractors from which he could select and hire the subcontractor of his choice

and (2) passing along invoices to Schambacher that it had received from the

subcontractors who performed work on the housing project. As part of its providing

Schambacher with a list of subcontractors, SCC allowed him to use its “buying

power” to negotiate pricing with the subcontractors; in other words, Schambacher

had permission to use SCC’s name to obtain pricing discounts based on SCC’s

volume of work.

      According to SCC, in light of its limited role, it had no oversight responsibility

whatsoever for the housing project; it did not have a duty to select the

subcontractors, to issue job-start orders, to monitor the progress of work on the


                                          4
housing project, or to confirm that work had been completed. Instead, according to

Schambacher, he exercised the duties of hiring the subcontractors, including R.E.I.,

and the general contractor, SCC; overseeing the construction of the house; and

managing, communicating with, and paying the subcontractors, which he did using

funds from his personal account. Schambacher did not discuss his arrangement

with SCC with any of the subcontractors hired to perform work on the housing

project.

      Both R.E.I. and Garland filed motions for summary judgment on

Schambacher’s claims, and Schambacher filed a no-evidence motion for summary

judgment on R.E.I.’s fraud counterclaim.          R.E.I. and Garland challenged

Schambacher’s breach of contract and warranty claims on the basis of an absence

of privity, and they challenged Schambacher’s negligence claims under the

economic loss doctrine. Schambacher included his affidavit in response to R.E.I.’s

and Garland’s motions, but the trial court sustained R.E.I.’s and Garland’s objections

to the affidavit and struck it. The trial court granted all of the motions for summary

judgment. Schambacher and R.E.I. appeal.

                             III. S TANDARDS OF R EVIEW

      A.     Traditional Motion for Summary Judgment

      W e review a summary judgment de novo. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W .3d 844, 848 (Tex. 2009). W e consider the

evidence presented in the light most favorable to the nonmovant, crediting evidence


                                          5
favorable to the nonmovant if reasonable jurors could and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not. Id. W e indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc.

v. Parker, 249 S.W .3d 392, 399 (Tex. 2008). A defendant who conclusively negates

at least one essential element of a cause of action is entitled to summary judgment

on that claim. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143

S.W .3d 794, 798 (Tex. 2004); see Tex. R. Civ. P. 166a(b), (c). Once the defendant

produces sufficient evidence to establish the right to summary judgment, the burden

shifts to the plaintiff to come forward with competent controverting evidence that

raises a fact issue. Phan Son Van v. Peña, 990 S.W .2d 751, 753 (Tex. 1999).

      B.     No-Evidence Motion for Summary Judgment

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground that

there is no evidence to support an essential element of the nonmovant’s claim or

defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the elements

for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 S.W .3d 306, 310

(Tex. 2009). The trial court must grant the motion unless the nonmovant produces

summary judgment evidence that raises a genuine issue of material fact. See Tex.

R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W .3d 425, 426 (Tex. 2008).




                                          6
                           IV. S CHAMBACHER AFFIDAVIT

      In his first, second, and third issues, Schambacher argues that the trial court

erred by striking his affidavit under the various theories argued by R.E.I. and

Garland. W e hold that the trial court’s error, if any, in striking Schambacher’s

affidavit was harmless because the assertions contained in his affidavit that are

relevant to the issues on appeal—that Schambacher and SCC had agreed to an

unwritten “arrangement” that substantially limited SCC’s duties as general contractor

for the housing project, that SCC had no oversight responsibility for the housing

project, and that Schambacher oversaw the housing project and managed the

subcontractors, among other things—are additionally found in deposition excerpts

that are part of the summary judgment record.         See Tex. R. App. P. 44.1(a)

(requiring appellant to demonstrate harm to obtain reversal on appeal). Accordingly,

we overrule Schambacher’s first, second, and third issues.

         V. P RIVITY—S CHAMBACHER’S C ONTRACT AND W ARRANTY C LAIMS

      In his fourth and fifth issues, Schambacher argues that the trial court erred by

granting summary judgment for both R.E.I. and Garland on his claims for breach of

contract and for breach of implied and express warranties. He contends that his

summary judgment evidence raised a genuine issue of material fact that he was the

contracting party—and, thus, was in privity—with R.E.I. and Garland.




                                          7
        A.    Contracts and Warranties

        Schambacher does not dispute R.E.I.’s and Garland’s arguments that he must

demonstrate privity to recover under his contract and warranty claims. The general

rule is that only parties to a contract have the right to complain of a breach thereof.

Wells v. Dotson, 261 S.W .3d 275, 284 (Tex. App.—Tyler 2008, no pet.); see Jensen

Constr. Co. v. Dallas County, 920 S.W .2d 761, 772 (Tex. App.—Dallas 1996, writ

denied) (reasoning that privity of contract is required for any recovery in an action

based on construction contracts), overruled in part by Travis County v. Pelzel &

Assocs., Inc., 77 S.W .3d 246, 251 (Tex. 2002). Privity of contract is established by

proving that the defendant was a party to an enforceable contract with either the

plaintiff or a party who assigned its cause of action to the plaintiff. Conquest Drilling

Fluids v. Tri-Flo Int’l, Inc., 137 S.W .3d 299, 308 (Tex. App.—Beaumont 2004, no

pet.)

        Regarding breach of implied warranty claims, Texas courts have consistently

held that a property owner may not recover from a subcontractor with whom the

owner had no direct contractual relationship. Glenn v. Nortex Foundation Designs,

Inc., No. 02-07-00172-CV, 2008 W L 2078510, at *3 (Tex. App.—Fort W orth May 15,

2008, no pet.) (mem. op.) (citing J.M. Krupar Constr. Co. v. Rosenberg, 95 S.W .3d

322, 332 (Tex. App.—Houston [1st Dist.] 2002, no pet.), Raymond v. Rahme, 78

S.W .3d 552, 563 (Tex. App.—Austin 2002, no pet.), and Codner v. Arellano, 40

S.W .3d 666, 672–74 (Tex. App.—Austin 2001, no pet.)).


                                           8
      The supreme court has described an express warranty as part of the basis of

a bargain, the result of a negotiated exchange, and, thus, contractual in nature.

Med. City Dallas, Ltd. v. Carlisle Corp., 251 S.W .3d 55, 60–61 (Tex. 2008).

      B.     Garland

      Garland’s summary judgment evidence, which includes excerpts from

Schambacher’s deposition, the deposition of Dale Cox (Garland’s representative),

the construction contract between Schambacher and SCC, and the independent

contractor agreement between Garland and SCC, demonstrates that Schambacher

executed a contract with SCC in July 2005 for SCC to construct his house and that

SCC thereafter entered into a contract with Garland in September 2005 for Garland

to perform insulation services for SCC. Cox testified that Garland understood that

SCC was the general contractor for the housing project, that Garland sent its

invoices to SCC, and that Garland never understood the situation to be any different.

Garland met its summary judgment burden to show that it had contracted with SCC,

not Schambacher, to perform insulation services on the housing project.

      Schambacher argues that his summary judgment evidence raised a fact issue

that he contracted with Garland to perform insulation services because Garland

never dealt with anyone other than him in regard to the performance of insulation

services on the housing project and because he, not SCC, was responsible for hiring

the subcontractors, overseeing the construction of the house, managing

and communicating with the subcontractors, and paying the subcontractors.


                                          9
Schambacher directs us to Scott’s deposition testimony that SCC was only

responsible for providing Schambacher with a list of subcontractors from which he

could select and for passing along invoices to him that it had received from the

subcontractors. Because of his “arrangement” with SCC, Schambacher argues that

the construction contract that he entered into with SCC, which neither R.E.I. nor

Garland knew about, did not legally deprive him of the ability or capacity to contract

with R.E.I. and Garland.

      Schambacher’s summary judgment evidence did not raise a genuine fact

issue regarding privity with Garland because, though he may have had an

“arrangement” with SCC that limited SCC’s duties as general contractor, Garland

had a written agreement with SCC to perform insulation services. The independent

contractor agreement expressly provides that “[n]o variation, modification[,] or

changes hereof shall be binding on either party hereto unless set forth in a document

executed by all the parties hereto.” There is no evidence that Garland varied,

modified, or changed its agreement with SCC to contract instead with Schambacher

for insulation services on the housing project, and there is no evidence—nor does

Q2Schambacher even argue—that Garland’s agreement with SCC somehow

excluded Garland’s insulation services for the housing project. The law presumes

that a written agreement correctly embodies the parties’ intentions and is an

accurate expression of the agreement between the parties. Estes v. Republic Nat’l

Bank of Dallas, 462 S.W .2d 273, 275 (Tex. 1970).         Schambacher’s actions in


                                         10
selecting Garland to perform insulation services and overseeing the construction of

the housing project did nothing to alter Garland’s contractual relationship with SCC,

which is further evidenced by Garland’s billing each invoice to “Sterling Classic

Homes” and not to Schambacher. W e hold that the trial court did not err by granting

Garland’s motion for summary judgment on Schambacher’s claims for breach of

contract and for breach of express and implied warranties. Accordingly, we overrule

Schambacher’s fifth issue.

       C.     R.E.I.

       The summary judgment evidence presented by R.E.I. and Schambacher in

regard to Schambacher’s contract and warranty claims overlaps with much of the

summary judgment evidence presented by Garland and Schambacher. There are,

however, a few significant differences. First, R.E.I. states that it, “like all of the other

subcontractors on the [housing] Project, contracted directly with SCC.” According

to R.E.I., if it had contracted with SCC, then it did not contract with Schambacher to

perform the exact same work. But unlike Garland, R.E.I. has not produced any

evidence of a written contract between it and SCC for the performance of services,

nor have we located one after searching the entire record. 3 W e therefore look to




       3
       Schambacher’s statement during his deposition that he thought the
subcontractors had their agreements with SCC does no more than create mere
surmise or suspicion of the fact. See Kindred v. Con/Chem, Inc., 650 S.W .2d 61,
63 (Tex. 1983).

                                            11
evidence of an oral agreement, which leads to the second significant difference

between R.E.I.’s and Garland’s summary judgment evidence.

      Unlike Garland’s representative, who testified that Garland always understood

its agreement to be with SCC, Haugen testified that he “realized” that R.E.I. was not

working for SCC after it had received the first payment for its services on the housing

project. Haugen testified that the payment came from Schambacher. After realizing

that R.E.I. was not working for SCC, Haugen “just let it go” instead of making further

inquiries. At that time, R.E.I. was 50 percent finished with its work on the housing

project.

      Another distinction of R.E.I.’s summary judgment evidence concerns the

invoices. Garland billed each invoice to “Sterling Classic Homes,” but under the “Bill

To” section of a February 27, 2006 R.E.I. invoice, “Sterling Classic Custom Homes”

is crossed out and “Paul” is written in.

      Although the summary judgment evidence shows that Schambacher entered

into the construction contract with SCC, the contract provides that “[Schambacher]

shall be responsible for any liens and claims of liens for labor and materials for which

[Schambacher] has contracted directly with another party.” Schambacher testified

that he hired R.E.I. to perform electrical services for the housing project. In light of

this and Schambacher’s and Scott’s deposition testimony regarding their

“arrangement,” we reject R.E.I.’s argument that Schambacher’s testimony that SCC




                                           12
was the “general contractor” for the housing project in and of itself forecloses

Schambacher’s contention that he contracted with R.E.I.

      Citing Jensen Construction Co., R.E.I. contends that “[a]bsent an express

agreement otherwise, in construction cases ‘a subcontractor is not in privity with the

owner.’” See 920 S.W .2d at 772. R.E.I. then argues that “Schambacher produced

no evidence of an express agreement between [R.E.I.] and himself that would create

a fact question as to whether he was in privity with [R.E.I.]” The problem with this

argument is that the facts of this case render the rule delineated by the Jensen court

inapposite. According to Haugen, R.E.I. never entered into written contracts with

SCC when it contracted with SCC for the performance of services. Haugen testified

that its agreements were instead “all” oral agreements.         He also testified that

Schambacher may have been the one who called R.E.I. and informed it that there

was a “rough-in” available. Considering that R.E.I.’s representative testified that

R.E.I. has a history of entering into oral agreements for the performance of services,

R.E.I.’s contention that Schambacher must show evidence of a written contract to

establish privity is completely inconsistent with its own history of contracting orally

with general contractors for jobs.

      The evidence presented in the light most favorable to Schambacher therefore

shows, among other things, that R.E.I. did not have a written contract with SCC to

perform services on the housing project, that Schambacher claimed to have hired

R.E.I. to perform electrical services for the housing project, that Haugen realized that


                                          13
R.E.I. did not work for SCC after receiving payment from Schambacher, and that

R.E.I. billed at least one invoice to Schambacher. Indulging every reasonable

inference and resolving any doubts in Schambacher’s favor, we must conclude and

hold that Schambacher’s summary judgment evidence raised a genuine issue of

material fact regarding whether R.E.I. contracted—and was therefore in privity—with

Schambacher for the performance of electrical services on the housing project.

Accordingly, we sustain Schambacher’s fourth issue.

                                     VI. AGENT

      In his seventh issue, Schambacher argues that if he failed to raise a fact issue

regarding privity with Garland, then he at least raised a fact issue that he was an

agent for SCC in his dealings with Garland and, therefore, that he has a sufficient

interest in the subject matter of the contracts to prosecute a suit against Garland in

his own name. 4 He cites Perry v. Breland for the proposition that there are four

exceptions to the rule that an agent may not maintain a suit in his own name based

upon his principal’s contract:   (1) when the agent contracts in his own name;

(2) when the principal is undisclosed; (3) when the agent is authorized to act as

owner of the property; and (4) when the agent has an interest in the subject matter

of the contract. 16 S.W .3d 182, 187 (Tex. App.—Eastland 2000, pet. denied).




      4
      Schambacher raised this argument in his response to Garland’s motion for
summary judgment.

                                         14
      The summary judgment evidence conclusively establishes that Garland

contracted with SCC, not Schambacher, to perform insulation services and that SCC

was disclosed as the contracting party with Garland. The third and fourth Perry

exceptions are factually inapplicable to this case. The Perry court pointed out that

“[a]n agent contracting for an undisclosed principal has the right to sue if it is

apparent that the contract would be enforceable against him if the opposite party

sued.” Id. Notwithstanding that SCC was disclosed, Garland’s contract with SCC

would not be enforceable against Schambacher if Garland sued under the

independent contractor agreement. See id. Accordingly, Schambacher failed to

raise a fact issue that he was an agent for SCC in his dealings with Garland. W e

overrule Schambacher’s seventh issue.

      Having sustained Schambacher’s fourth issue, we need not address his sixth

issue arguing that a fact issue exists that he was an agent for SCC in regard to his

dealings with R.E.I. See Tex. R. App. P. 47.1.

                       VII. N EGLIGENCE AND E CONOMIC L OSS

      In his eighth and ninth issues, Schambacher argues that the trial court erred

by granting R.E.I.’s and Garland’s motions for summary judgment on his negligence

claims on the basis of the economic loss doctrine.

      The mere fact that an act is done pursuant to a contract does not shield it from

the general rules of tort liability. Jim Walter Homes, Inc. v. Reed, 711 S.W .2d 617,

618 (Tex. 1986) (reasoning that a party’s acts may breach duties in tort or contract


                                         15
alone or simultaneously in both, depending on the circumstances); Thomson v.

Espey Huston & Assocs., Inc., 899 S.W .2d 415, 420 (Tex. App.—Austin 1995, no

pet.). One who undertakes to perform a contract assumes a duty to all persons to

take reasonable care not to injure them or their property in the performance of that

contract, and one who is not privy to the contract may assert a claim for negligence

for a breach of that duty. Goose Creek ISD of Chambers and Harris Counties, Tex.

v. Jarrar’s Plumbing, Inc., 74 S.W .3d 486, 494 (Tex. App.—Texarkana 2002, pets.

denied); see Sw. Bell Tel. Co. v. DeLanney, 809 S.W .2d 493, 494 (Tex. 1991). The

court in Thomson reasoned that a property owner may assert a claim for negligence

against a subcontractor based on the subcontractor’s performance under its contract

with a general contractor when the cause of action is independent of the duties

imposed by the contract. Jarrar’s Plumbing, 74 S.W .3d at 494; Thomson, 899

S.W .2d at 421–22.

      A plaintiff’s negligence action may, however, be barred by the economic loss

doctrine, which has been applied by Texas courts in two related, overlapping

contexts.   Pugh v. Gen. Terrazzo Supplies, Inc., 243 S.W .3d 84, 90–91 (Tex.

App.—Houston [1st Dist.] 2007, pet. denied). The doctrine has been applied to

preclude tort claims brought to recover economic losses when those losses are the

subject matter of a contract. See Jim Walter Homes, 711 S.W .2d at 618. W hen the

injury suffered is only economic loss to the subject of the contract itself, the action

sounds in contract alone. Id. The doctrine has also been applied to preclude tort


                                          16
claims brought to recover economic losses against the manufacturer or seller of a

defective product where the defect damages only the product and does not cause

personal injury or damage to other property.           Pugh, 243 S.W .3d at 91.        The

economic loss doctrine does not apply only to bar claims against those in a direct

contractual relationship; it also applies to preclude tort claims between parties who

are not in privity. Id. at 91 & n.7 (citing Trans-Gulf Corp. v. Perf. Aircraft Servs., Inc.,

82 S.W .3d 691, 695 (Tex. App.—Eastland 2002, no pet.) and Hou-Tex, Inc. v.

Landmark Graphics, 26 S.W .3d 103, 106–07 (Tex. App.—Houston [14th Dist.] 2000,

no pet.)).

       Here, Schambacher only argues that both R.E.I. and Garland had a common

law duty to perform services under their respective contracts with care, skill, and

reasonable expedience and that their negligent failure to do so gave rise to an action

in tort. Schambacher’s argument misses the mark. His allegations against R.E.I.

and Garland and argument on these issues do not assert that R.E.I.’s and Garland’s

negligence, if any, in performing the electrical and insulation services for the housing

project caused any injury or damages beyond economic loss to the subject of

R.E.I.’s and Garland’s respective contracts. Schambacher’s actions against R.E.I.

and Garland thus sound only in contract. See Jim W alter Homes, 711 S.W .2d at

618; Pugh, 243 S.W .3d at 93–94. W e hold that the trial court did not err by granting

R.E.I.’s and Garland’s motions for summary judgment on Schambacher’s negligence

claims, and we overrule Schambacher’s eighth and ninth issues.


                                            17
                                     VIII. F RAUD

      In its only issue, R.E.I. argues that the trial court erred by granting

Schambacher’s no-evidence motion for summary judgment on its common law fraud

counterclaim against Schambacher regarding the $77,000 claim for reimbursement

that Schambacher submitted to Assurance based on the fee that he had purportedly

paid to SCC to serve as the general contractor for the housing project.

      The elements of a cause of action for fraud are (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 speaker made the representation with the

intent that the other party should act upon it; (5) the party acted in reliance on the

representation; and (6) the party suffered injury as a result. In re FirstMerit Bank,

N.A., 52 S.W .3d 749, 758 (Tex. 2001); Dewayne Rogers Logging, Inc. v. Propac

Indus., Ltd, 299 S.W .3d 374, 391 (Tex. App.—Tyler 2009, pet. filed). Intent may be

inferred from a party’s actions before and after the fraudulent conduct and may be

established by either direct or circumstantial evidence. Spoljaric v. Percival Tours,

Inc., 708 S.W .2d 432, 434–35 (Tex. 1986). Although circumstantial evidence may

be used to establish any material fact, it must transcend mere suspicion; there must

be a logical bridge between the proffered evidence and the fact. IKON Office

Solutions, Inc. v. Eifert, 125 S.W .3d 113, 124 (Tex. App.—Houston [14th Dist.] 2003,

pet. denied). Intent tends to be a fact question uniquely within the realm of the trier


                                          18
of fact because it so depends on the credibility of witnesses and the weight given

their testimony. Spoljaric, 708 S.W .2d at 434.

      R.E.I. included the affidavit of Steve Dickens in its response to Schambacher’s

motion for summary judgment. Dickens is an adjuster with Assurance and “was

directly involved in the resolution of the insurance claim filed by [Schambacher]” for

the fire at the Tealwood house. According to Dickens,

      3)     Schambacher submitted, along with his property damage claim
             arising from the Fire, a claim for reimbursement of a $77,000 fee
             he had purportedly paid to SCC Homes to serve as the general
             contractor in the construction of the house at the Property (the
             “Fee”). Assurance paid this claim for reimbursement of the Fee.

      4)     It was not until well after the payment of Schambacher’s claim for
             the Fee, during the taking of discovery in the Subrogation Action,
             that Assurance was first made aware that Schambacher may
             have not paid the Fee to SCC Homes, or to anyone else, after
             all.

      R.E.I. also included excerpts from Schambacher’s deposition in its response

to the motion for summary judgment. Schambacher maintained that he had paid a

fee of $77,037 to SCC for SCC to act as the general contractor on the housing

project. The following exchange occurred:

      [Counsel]: I’m going to show you what’s been marked as Exhibit
      Number 10. Let me represent to you that this is one of the invoices that
      was produced to me. Can you identify that invoice?

      [Schambacher]: It says, SCC Homes, contracting fee - 932 Tealwood.

      [Counsel]: And is that an invoice from SCC Homes to yourself?

      [Schambacher]: Yes.


                                         19
      [Counsel]: And what is that invoice for?

      [Schambacher]: For the - - being the sub- - - or being the contractor.

      [Counsel]: How much is the invoice for?

      [Schambacher]: $77,037.

      [Counsel]: And explain to me what you mean it was for “being the
      contractor.”

      [Schambacher]: SCC was the general contractor on the house.

      [Counsel]: This was the fee that you paid to SCC for acting as general
      contractor?

      [Schambacher]: Correct.

      [Counsel]: . . . W hen we talked about earlier that - - what you retained
      SCC to do was simply to provide a list of subcontractors and handle the
      invoicing for you; is that correct?

      [Schambacher]: Correct.

            ....

      [Counsel]: And so the $77,000, what you’re telling me, that was your
      fee to them for providing you with these lists of subcontractors and
      handling the invoicing?

      [Schambacher]: Yes.

Schambacher testified that he had provided the invoices to Continental Adjusters to

organize and sort and that they were ultimately submitted to Assurance.

      R.E.I. also included excerpts from Scott’s deposition in its response to

Schambacher’s motion for summary judgment. Scott testified that he had never




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seen the $77,037 invoice and that, as far as he knew, SCC had never been paid the

$77,037. The following exchange occurred:

      [Counsel]: Can you explain what this contracting fee invoiced from
      SCC Homes is?

            ....

      [Counsel]: W hat is the basis of this invoice?

      [Scott]: My understanding of my - - the fee that was supposed to be
      paid to us, which as far as I know we never received anything, was
      going to be based off of, you know, time involved . . . .

            ....

      [Scott]: This is the first time I’ve seen an invoice for that.

            ....

      [Counsel]: Do you know whether or not the company ever received
      $77,000 from your brother?

      [Scott]: As far as I know, we’ve never received a dollar.

            ....

      [Counsel]:   Are you prepared to disagree with your brother’s
      representation that he and Susan Schambacher paid your company
      SCC $77,037?

      [Scott]: As far as I know, I’ve never received any money.

      W e hold that R.E.I. presented summary judgment evidence raising genuine

issues of material facts that Schambacher made a material, false representation to

Assurance that he had paid SCC a fee of $77,037; that he knew the representation

was false when made; that he made the representation with the intent that


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Assurance act upon it; that Assurance acted in reliance on the representation by

paying the claim for reimbursement of the $77,037 fee; and that R.E.I., to whom

Assurance had assigned its claims, suffered injury as a result of the representation.

See FirstMerit, 52 S.W .3d at 758; Spoljaric, 708 S.W .2d at 434–35. W e sustain

R.E.I.’s sole issue.

                                  IX. C ONCLUSION

      W e affirm in part and reverse and remand in part. Having sustained R.E.I.’s

only issue, we reverse that portion of the trial court’s judgment granting

Schambacher’s no-evidence motion for summary judgment on R.E.I.’s fraud

counterclaim. Having sustained Schambacher’s fourth issue, we reverse that portion

of the trial court’s judgment granting R.E.I.’s motion for summary judgment on

Schambacher’s claims against R.E.I. for breach of contract and for breach of implied

and express warranties. W e remand this case for further proceedings concerning

those claims as well as R.E.I.’s fraud counterclaim.        Having overruled all of

Schambacher’s other issues, we affirm the remainder of the trial court’s judgment.



                                                    BILL MEIER
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

DELIVERED: August 5, 2010




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