




02-11-210-CV





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
NO. 02-11-00210-CV
 
 



Joseph Leon Maddox, Patti Lynn Maddox, and Linda
  Faye Weber


 


APPELLANTS




 
V.
 




Vantage Energy, LLC and The Caffey Group, LLC


 


APPELLEES



 
 
----------
 
FROM THE 67th
District Court OF Tarrant COUNTY
----------
 
OPINION
----------
 
I. 
Introduction
 
          Appellants
Joseph Leon Maddox, Patti Lynn Maddox, and Linda Faye Weber sued Appellees
Vantage Energy, LLC and The Caffey Group, LLC, pleading causes of action for
breach of contract, promissory estoppel, and negligent misrepresentation.  The
trial court granted summary judgment for Appellees (collectively referred to as
Vantage) on all of Appellants’ claims.  Appellants perfected this appeal,
challenging the summary judgment in ten issues.[1]  Because we hold that
Appellants lack standing to sue for breach of contract and promissory estoppel,
we will dismiss Appellants’ appeal of those claims and will render judgment
accordingly.  Because we hold that no summary judgment evidence exists that
Vantage made any material misrepresentations of existing fact, we will affirm
the trial court’s summary judgment for Vantage on Appellants’ negligent
misrepresentation claim.
II.  Factual
and Procedural Background
          Appellants
are homeowners in southwest Fort Worth.  During the summer of 2008, oil and gas
companies began approaching individual homeowners in southwest Fort Worth to
attempt to obtain leases of the minerals under the homeowners’ properties.  Some
property owners in southwest Fort Worth formed a nonprofit, unincorporated
association[2] named Southwest Fort
Worth Alliance, or SFWA, for the purpose of negotiating the best possible lease
terms for the largest possible group of lessors.  Eventually, Vantage reached
an agreement with SFWA that included a “uniform oil and gas lease form.”
Appellants
assert that a written contract exists between Vantage and SFWA; Appellants
claim the contract consists of a series of approximately eleven emails––and the
attachments to those emails, including the uniform oil and gas lease form––that
were exchanged between Vantage and an individual acting for SFWA.[3] 
Based on the emails and the uniform oil and gas lease form, SFWA publicized
that Vantage had “won the bid for endorsement” of SFWA and was SFWA’s
“preferred and endorsed Natural Gas Developer.”  Appellants concede in their
brief that SFWA did not possess authority to, and did not, negotiate individual
leases for Appellants or for anyone; instead, Appellants claim that the
contract between Vantage and SFWA was “a contract for an endorsement
of Vantage and its offer.”
The
uniform oil and gas lease form is a template; it provides blanks for the date
of execution of the lease, the name of the lessor, and for the legal
description and address of the property covered by the lease.[4] 
The uniform oil and gas lease form also states that each individual lessor is not
obligated to sign the form lease but instead has the right to negotiate his or
her own terms with any oil and gas company and individually bears the responsibility
of investigating the lease and its terms.[5]
Vantage
began obtaining leases from mineral owners in the SFWA neighborhoods.  Between 4,000
and 7,500 leases were obtained; the record does not reflect if these lessors negotiated
to modify the uniform oil and gas lease terms or not.  Approximately one month
later, however, as the price of natural gas fell, Vantage suspended its urban
leasing activities.  Appellants filed the instant suit, seeking to compel
Vantage to offer them an oil and gas lease in accordance with the terms set
forth in the uniform oil and gas lease form.  Appellants’ petition prayed that
the court “award Plaintiffs specific performance and give Plaintiffs the
opportunity to accept or reject the negotiated lease, as described herein . . .
.” 
 
III.  Grounds for Summary Judgment
          The
trial court’s summary judgment expressly stated that it was granted on several
grounds, including that Appellants “do not qualify as third-party beneficiaries
to the alleged contract” between Vantage and SFWA.[6] 
Concerning Appellants’ negligent misrepresentation claim, the trial court ruled
that no evidence existed that Vantage had made any material misrepresentations
of existing fact to Appellants.  Concerning Appellants’ promissory estoppel
pleading, the trial court ruled that no evidence existed that Vantage had promised
to sign an already existing written agreement.
IV.  Appellants Lack Standing
to Assert Breach of Contract Claim
A. 
The Law Concerning Standing to Sue as a Third-Party Beneficiary
In
Texas, “standing” denotes the presence of a real controversy between the
parties that will actually be determined by the judicial declaration sought.  Austin
Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005); Pagosa
Oil & Gas, L.L.C. v. Marrs & Smith P’ship, 323 S.W.3d 203, 209–10
(Tex. App.—El Paso 2010, pet. denied).  Standing is a necessary component of
subject-matter jurisdiction, without which a court lacks authority to hear a
case.  See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444–45
(Tex. 1993).  Because standing is a component of subject-matter jurisdiction,
it may be raised for the first time on appeal by the parties or by the court.  Id.
at 445–46.
To
establish standing to assert a breach of contract cause of action, a party must
prove its privity to the agreement or that it is a third-party beneficiary. OAIC
Commercial Assets, L.L.C. v. Stonegate Vill., L.P., 234 S.W.3d 726, 738
(Tex. App.—Dallas 2007, pet. denied); see also Merrimack Mut. Fire
Ins. Co. v. Allied Fairbanks Bank, 678 S.W.2d 574, 577 (Tex. App.—Houston
[14th Dist.] 1984, writ ref’d n.r.e.).  A third party may enforce as a third-party
beneficiary a contract it did not sign when the parties to the contract entered
the agreement with the clear and express intention of directly benefitting the
third party.  Tawes v. Barnes, 340 S.W.3d 419, 425 (Tex. 2011); MCI
Telecomms. Corp. v. Tex. Util. Elec. Co., 995 S.W.2d 647, 651 (Tex. 1999).  When
the contract confers only an indirect, incidental benefit, a third party cannot
enforce the contract.  Tawes, 340 S.W.3d at 425 (citing Restatement
(Second) of Contracts § 315 (1981); 13 Williston on Contracts § 37:19, at
124–25 (4th ed. 2000) (“An incidental beneficiary acquires no right either
against the promisor or the promisee by virtue of the promise.”)).
Traditionally,
Texas courts have presumed that a party contracts only for its own benefit and
have therefore maintained a presumption against third-party beneficiary
agreements.  Id.; Corpus Christi Bank & Trust v. Smith, 525 S.W.2d
501, 503–04 (Tex. 1975) (“[W]e must begin with the presumption that parties
contract for themselves . . . .”); Standard Accident Ins. Co. v. Knox,
144 Tex. 296, 303–04, 184 S.W.2d 612, 615 (1945).  Therefore, in the absence of
a clear and unequivocal expression of the contracting parties’ intent to
directly benefit a third party, courts will not confer third-party beneficiary
status by implication.  Tawes, 340 S.W.3d at 425; MCI Telecomms.,
995 S.W.2d at 651.
Consequently,
a third-party beneficiary will not be recognized unless the intent to make him
or her so is clearly written or evidenced in the contract.  Tawes, 340
S.W.3d at 425; MCI Telecomms., 995 S.W.2d at 651.  “[T]he fact that a
person is directly affected by the parties’ conduct, or that he ‘may have a substantial
interest’ in a contract’s enforcement, does not make him a third[-] party
beneficiary.”  Loyd v. ECO Res., Inc., 956 S.W.2d 110, 134 (Tex. App.—Houston
[14th Dist.] 1997, no pet.), abrogated on other grounds by Clear Lake City
Water Auth. v. Friendswood Dev. Co., 256 S.W.3d 735 (Tex. App.—Houston
[14th Dist.] 2008, pet. dism’d).  The third-party beneficiary need not be specifically
named in the contract but must be otherwise sufficiently described or
designated. Knox v. Ball, 144 Tex. 402, 413, 191 S.W.2d 17, 23 (Tex. 1945).
To
qualify as a third-party beneficiary, the party must show that he is either a
donee or creditor beneficiary of the contract, not one who is benefitted only
incidentally by the performance of the contract.  MCI Telecomms., 995
S.W.2d at 651; Brunswick Corp. v. Bush, 829 S.W.2d 352, 354 (Tex. App.––Fort
Worth 1992, no writ) (explaining that “only donee and creditor beneficiaries
have enforceable rights”).  A donee beneficiary is a party to whom the
performance promised will, when rendered, come to him as a pure donation; a
creditor beneficiary is one to whom the performance promised will come in
satisfaction of a legal duty owed to him by the promisee.  MCI Telecomms.,
995 S.W.2d at 651. This legal duty may include indebtedness, contractual
obligations, or other legally enforceable commitments owed to the third party.  Id.;
see also Stine v. Stewart, 80 S.W.3d 586, 588 (Tex. 2002) (holding
mother qualified as third-party beneficiary to daughter and son-in-law’s agreement
incident to divorce because it provided for repayment to mother of a specific
amount of money from the proceeds of the sale of the couple’s home).
B. 
Application of the Law to the Present Facts
The
summary judgment evidence conclusively establishes that Appellants are not
parties to any contract that may exist between Vantage and SFWA.  Appellants
instead contend in their second issue that they are third-party beneficiaries
of the alleged contract between Vantage and SFWA.  To determine whether any Vantage
and SFWA contract expressed a clear intent to directly benefit Appellants, we
must interpret the alleged contract between Vantage and SFWA.  See Tawes,
340 S.W.3d at 425.
Viewing
the summary judgment evidence in the light most favorable to Appellants, the
assorted emails and attachments that Appellants claim constitute the contract
between Vantage and SFWA nowhere identify Appellants by name as intended beneficiaries. 
Compare Stine, 80 S.W.3d at 588 (holding decree’s identification of
person by name was sufficiently specific for purposes of third-party
beneficiary status), with Brown v. Fullenweider, 52 S.W.3d 169,
170 (Tex. 2001) (holding decree’s failure to identify attorney by name was
insufficient to confer third-party beneficiary status on him concerning
decree’s allocation of the payment of his fees).
Appellants
nonetheless claim that they are identified in the purported Vantage/SFWA contract
by geographic boundaries; that is, they live in one of the neighborhoods in
which the neighborhood homeowners’ association elected to participate in SFWA. 
The summary judgment evidence conclusively establishes, however, that no map
was attached to or included in the documents that Appellants identify as the
contract between Vantage and SFWA, and Appellants’ respective properties and
addresses are not described or mentioned in the alleged contract.[7] 
Moreover, each Appellant testified that he or she did not pay any dues to SFWA or
sign any document in order to be a member of SFWA, and the summary judgment evidence
establishes that some homeowners in the neighborhoods participating in SFWA had
signed mineral leases with other energy companies.  The mere fact that
Appellants own minerals within the geographical boundaries of one of the neighborhoods
participating in SFWA cannot make them part of an identified, discrete, limited
group of individuals specifically intended to be third-party beneficiaries of
the purported Vantage/SFWA contract because some individuals in this very group
had already signed mineral leases with other energy companies and thus were
clearly not intended third-party beneficiaries of any Vantage/SFWA contract.  See
Tawes, 340 S.W.3d at 428 (explaining that the joint operating agreement at
issue did not “identify a ‘specific, limited group of individuals’ to which the
consenting parties owe an obligation”).  And to the extent that Appellants
claim the purported Vantage/SFWA contract was intended to benefit only mineral
owners in the neighborhoods electing to participate in SFWA who had not already
signed a mineral lease with another energy company, this subset of individuals
is even more unidentifiable and more nondiscrete because the group composition
could change on a daily or hourly basis as mineral owners in neighborhoods
participating in SFWA executed leases with other companies; in fact, the
uniform oil and gas lease form expressly acknowledges that Appellants had the
“right to negotiate [their] own terms with any company.”  Thus, even assuming a
contract existed between Vantage and SFWA, no intent to directly benefit Appellants
as third-party beneficiaries is clearly written or evidenced in such contract because
Appellants are not indentified individually by name, by address, or by property
description and are not sufficiently specifically identified as a group by membership
in SFWA, by geographic location, or by any other discrete criteria.  See,
e.g., Tawes, 340 S.W.3d at 428 (addressing sufficiency of identification of
individual as a member of a group in joint operating agreement in order to
qualify for third-party beneficiary status); Brown, 52 S.W.3d at 170
(addressing sufficiency of identification of individual in decree in order to
qualify for third-party beneficiary status).
We
have not located, and Appellants have not cited, any case supporting the
proposition that persons who in a contract are unnamed, unidentified by address
or by property description, and are unidentifiable by membership in a
specifically defined, discrete, limited group can be intended by the
contracting parties to be beneficiaries of that contract.  Compare Stine,
80 S.W.3d at 588 (holding decree’s identification of person by name was
sufficiently specific for purposes of third-party beneficiary status), with
Brown, 52 S.W.3d at 170 (holding decree’s failure to identify attorney
by name was insufficient to confer third-party beneficiary status on him
concerning decree’s allocation of the payment of his fees).  To the contrary,
in such a situation, we must presume that the contracting parties, here Vantage
and SFWA, contracted for themselves.  See Tawes, 340 S.W.3d at
425; MCI Telecomms., 995 S.W.2d at 651.
Finally,
to date, the law recognizes only two types of third-party beneficiaries:  donee
beneficiaries and creditor beneficiaries.  See MCI Telecomms.,
995 S.W.2d at 651.  The summary judgment evidence conclusively establishes that,
concerning the alleged contract between Vantage and SFWA, Appellants are
neither.  Appellants are not donee beneficiaries because the performance allegedly
promised by Vantage that Appellants seek specific performance of—the offer and execution
of a lease in accordance with the terms of the uniform oil and gas lease form—will,
when rendered, not come as a pure donation but will be made in exchange for the
lease of Appellants’ mineral rights.  See id.  Likewise, Appellants are
not creditor beneficiaries because Vantage owed Appellants no legal duty,
indebtedness, or contractual obligation.  See id.  The alleged contract
between Vantage and SFWA did not express an intent to confer a benefit on
Appellants or an intent that Appellants possess the right to enforce the
alleged contract between Vantage and SFWA.  See MJR Corp. v. B &
B Vending Co., 760 S.W.2d 4, 16 (Tex. App.—Dallas 1988, writ denied).  Appellants
therefore are at most only incidental beneficiaries of any contract between
Vantage and SFWA, and “an incidental beneficiary acquires no right either
against the promisor or the promisee by virtue of the promise.”  See Tawes,
340 S.W.3d at 425 (quoting 13 Williston on Contracts § 37:19, at 124–25 (4th
ed. 2000)).
For
all of these reasons, based on our review of the summary judgment evidence, we
hold that the trial court correctly determined as a matter of law that Appellants
were not third-party beneficiaries of any Vantage/SFWA contract.  Because
Appellants are not third-party beneficiaries, they lack standing to sue to
enforce the purported Vantage/SFWA contract.  See OAIC Commercial Assets,
L.L.C., 234 S.W.3d at 738.  We overrule Appellants’ second issue,[8]
dismiss Appellants’ appeal of the summary judgment on their breach of contract
claim, and render judgment dismissing Appellants’ breach of contract claim.  See
Brown v. Todd, 53 S.W.3d 297, 306 (Tex. 2001) (rendering judgment
dismissing claims following determination of lack of standing).
V.  Summary Judgment Proper
on Negligent Misrepresentation
Claim
          The
trial court granted summary judgment on Appellants’ negligent misrepresentation
claim on two grounds, one of which was that no evidence exists that Vantage “made
material misrepresentations of existing fact.”[9]  Appellants claim that
the material misrepresentation that Vantage made was “to SFWA that it would
give all un-leased mineral owners in SFWA the opportunity to accept the SFWA
Deal.”  The summary judgment evidence conclusively establishes that many
homeowners in neighborhoods participating in SFWA accepted leases with
Vantage.  Thus, Appellants’ complaint is not that Vantage misrepresented any of
the terms of the uniform oil and gas form lease but is essentially that Vantage
misrepresented the length of time that its offer to lease minerals pursuant to
the terms set forth in the uniform oil and gas lease form would remain open. 
No summary judgment evidence exists, however, that Vantage made any
representation to SFWA or to any Appellants concerning how long its offer to
lease minerals pursuant to the terms set forth in the uniform oil and gas lease
form would remain open.
Moreover,
this alleged misrepresentation is insufficient as a matter of law to support a
negligent misrepresentation claim because it does not constitute a
representation of existing fact; a promise of future conduct will not support a
negligent misrepresentation claim.  See, e.g., BCY Water Supply Corp. v.
Residential Inv., Inc., 170 S.W.3d 596, 602 (Tex. App.—Tyler
2005, pet. denied) (explaining that the “false information” contemplated in a
negligent misrepresentation case must be a misstatement of existing fact, not a
promise of future conduct); Roof Sys., Inc. v. Johns Manville Corp., 130
S.W.3d 430, 439 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (same); Allied
Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. App.––Houston [14th Dist.] 1999,
pet. denied) (same); Airborne Freight Corp. v. C.R. Lee Enters., Inc.,
847 S.W.2d 289, 294 (Tex. App.––El Paso 1992, writ denied) (same).  A promise
to do or to refrain from doing an act in the future is not actionable because
it does not concern an existing fact.  BCY Water Supply Corp., 170
S.W.3d at 602.
For
example, in BCY, the Tyler court held that the representation by a water
supply employee that it would be no problem getting water service for a certain
piece of property that the plaintiff was contemplating purchasing was “no more
than a conditional promise of future performance” contingent on ownership of
the property.  Id. at 603.  The Tyler court reversed a judgment on a
jury verdict finding negligent misrepresentation.  Likewise, in Airborne,
the El Paso court held that the promise “as long as you do your job, you’ll
have a job” was “a conditional promise of future employment” that could not be
characterized as a misrepresentation of existing fact; the El Paso court
reversed a judgment on a jury verdict finding negligent misrepresentation.  847
S.W.2d at 298.
The promise
that Appellants claim Vantage made to SFWA that it “would give all un-leased
mineral owners in SFWA the opportunity to accept the SFWA Deal” is not a
misrepresentation of existing fact that will support a negligent
misrepresentation claim; instead, it is a promise to do an act in the future
that is not actionable as negligent misrepresentation.  See, e.g., BCY,
170 S.W.3d at 602; Roof Sys., Inc., 130 S.W.3d at 439; Allied
Vista, Inc., 987 S.W.2d at 141; Airborne Freight Corp. 847
S.W.2d at 294.  Hence, the trial court correctly granted summary judgment for
Vantage on Appellants’ negligent misrepresentation claim.  We overrule
Appellants’ tenth issue.
VI.  Appellants Lack Standing
to Assert Promissory Estoppel Claim
In
their ninth issue, Appellants claim that they pleaded promissory estoppel both
as an independent cause of action and as a defense to the statute of frauds.  The
trial court’s summary judgment stated that it was granting summary judgment on
the ground that “Plaintiffs’ promissory estoppel claim fails because there is
no evidence that (1) Defendants made a promise to sign an already existing
written agreement that would itself satisfy the requirements of the statute of
frauds or (2) that Plaintiffs relied on such a promise.”
Concerning
Appellants’ claim that they asserted promissory estoppel as an independent
cause of action, a cause of action for promissory estoppel does not operate to
create liability where it does not otherwise exist.  Hruska v. First State
Bank of Deanville, 747 S.W.2d 783, 785 (Tex. 1988); Ford v. City State
Bank of Palacios, 44 S.W.3d 121, 139 (Tex. App.––Corpus Christi 2001, no pet.). 
Promissory estoppel does not create a contract where none existed before but
prevents a party only from insisting upon his strict legal rights when it would
be unjust to allow him to enforce them.  “Moore” Burger, Inc. v. Phillips
Petroleum Co., 492 S.W.2d 934, 937 (Tex. 1972).  The requisites of
promissory estoppel in Texas are (1) a promise, (2) foreseeability of reliance
thereon by the promisor, and (3) substantial reliance by the promisee to his
detriment.  English v. Fischer, 660 S.W.2d 521, 524 (Tex. 1983).
For
the same reasons Appellants lack standing to assert a breach of contract cause
of action, they likewise lack standing to assert a promissory estoppel cause of
action.  The summary judgment evidence conclusively establishes that Vantage
did not make any promise to Appellants; Appellants do not dispute this, but
claim only that Vantage made a promise to SFWA.  In short, Appellants are not
“promisees” who can assert the independent claim of promissory estoppel against
Vantage.  See, e.g., Wheeler v. White, 398 S.W.2d 93, 97 (Tex. 1965)
(recognizing promissory estoppel theory may be invoked when promisee obtains
promise from promisor that is less than a legally sufficient contract); see
also O’Connor’s Texas Causes of Action ch. 5-D, § 1.1 (2011) (listing first
element of promissory estoppel as “1.  The defendant made a promise to the
plaintiff”).  Because Appellants do not qualify as third-party beneficiaries of
the purported Vantage/SFWA contract and do not qualify as promisees to whom
Vantage made any promise, they cannot create liability for Vantage or create some
promise between themselves and Vantage where none exists as a matter of law. 
We hold that Appellants lack standing to assert a promissory estoppel cause of
action against Vantage.  We dismiss Appellants’ appeal of the summary judgment
on their promissory estoppel claim and render judgment dismissing Appellants’
promissory estoppel claim.  See Brown, 53 S.W.3d at 306.
Concerning
Appellants’ claim that they asserted promissory estoppel as a defense to the application
of the statute of limitations, we need not address this contention because, for
purposes of this opinion, we have assumed a valid, written contract existed between
Vantage and SFWA, and we have held that the trial court nonetheless correctly
granted summary judgment for Vantage on all of Appellants’ claims.  We
therefore overrule Appellants’ ninth issue.
VII.  Conclusion
Having
overruled Appellants’ second and ninth issues and having determined that
Appellants lack standing to assert a breach of contract claim and an independent
promissory estoppel claim, we render judgment dismissing those claims against Vantage. 
Having overruled Appellants’ tenth issue and having determined that we need not
address the remainder of Appellants’ issues, we affirm the trial court’s
summary judgment on Appellants’ negligent misrepresentation claim.
 
 
SUE WALKER
JUSTICE
 
PANEL: 
LIVINGSTON,
C.J.; WALKER and MCCOY, JJ.
 
DELIVERED:  February 9, 2012




[1]Although the table of
contents in Appellants’ brief lists ten issues, they are not segregated in
Appellants’ analysis.  For ease of reference, however, we refer to the ten
issues as numbered in Appellants’ table of contents.


[2]See Tex. Bus. Orgs.
Code Ann. §§ 252.001–.017 (West 2011).  A nonprofit association is defined as
“an unincorporated organization . . . consisting of three or more members,
joined by mutual consent for a common, nonprofit purpose.”  Id. § 252.001(2).


[3]Appellants claim the
eleven-emails-and-attachments contract was executed by Vantage and SFWA by
virtue of the Texas Uniform Electronic Transactions Act, which provides that an
electronic signature shall be given the same legal force as an ink signature.  See
Tex. Bus. & Com. Code Ann. § 322.007 (West 2009).  We do not address
this contention because, as set forth below, even assuming a contract existed
between Vantage and SFWA, Appellants are not third-party beneficiaries of the
contract and have no standing to sue to enforce it.  See Tex. R. App. P.
47.1 (providing that appellate court must address only issues necessary to
final disposition of appeal).


[4]The uniform oil and gas
lease form provides in part, “This LEASE AGREEMENT (this “Lease”) is made as of
the ___ day of _________, 2008, between the Lessor(s) whose legal description
and address are set forth on Schedule-1 attached hereto, and Lessee
_____________, whose address is _____________, Fort Worth, Texas _________.” 
The uniform oil and gas lease form is not executed by anyone.


          [5]The
uniform oil and gas lease form specifically states on page 11:
(c)  Lessor Acknowledgement     . . . By signing
this Lease, Lessor [i.e., Appellants] acknowledges and stipulates that Lessor
was not obligated to sign this lease based upon the terms negotiated by [SFWA]
with Lessee and that Lessor had the right to negotiate its own terms with any
company prior to signing this lease.  Additionally, Lessor acknowledges that it
is the Lessor’s obligation to investigate the Lease, all negotiated terms, to
take such action as necessary to make an informed decision prior to signing
this Lease, and that the decision made by Lessor in signing this lease is made
after fully researching the matter independent of any other information
provided by [SFWA].  It is ultimately the responsibility of Lessor to (a)
determine if Lessor wants to negotiate with the Lessee, (b) fully investigate
the issues and facts related to signing an oil and gas lease, and (c) determine
what terms are acceptable to Lessor to be included in this lease. 


[6]The trial court also
granted summary judgment on the grounds that “[n]o legally valid contract was
made or exists between [Vantage] and SFWA” and that “the alleged contract
[between Vantage and SFWA] is otherwise unenforceable because it does not
comply with the statute of frauds.”  Appellants challenge these grounds for
summary judgment in their first, third, fourth, fifth, sixth, and seventh
issues.  Because we affirm the trial court’s summary judgment on other grounds,
we need not address these grounds.  See Warren v. Am. Nat’l Fire Ins. Co.,
826 S.W.2d 185, 189 (Tex. App.—Fort Worth 1994, writ denied) (explaining that
because appellate court determined independent ground existed for summary
judgment, it need not address appellant’s remaining challenges to summary
judgment); see also Tex. R. App. P. 47.1.


[7]Appellants claim that they
are identified in a “leasing priority spreadsheet” prepared by Vantage.  This
spreadsheet is not attached to the emails that Appellants contend constitute
the contract between Vantage and SFWA, and it does not identify Appellants by
name, address, or property description.  The spreadsheet simply lists the
neighborhoods participating in SFWA and proposes a sequential order for
prioritization of the signing of leases.


[8]Having determined that
Appellants do not possess standing to sue for breach of any contract that may
exist between Vantage and SFWA, we need not address Appellants’ eighth issue
alleging that a genuine issue of material fact exists as to their damages on
their breach of contract claim.  See Tex. R. App. P. 47.1 (stating that
appellate court must address only issues necessary to final disposition of the
appeal).


[9]The elements of a
negligent misrepresentation claim are that (1) the defendant, in the course of
his business, profession, or employment, or in another transaction in which he
had a pecuniary interest, supplied to the plaintiff false information for guidance
in a business transaction; (2) the defendant failed to exercise reasonable care
or competence in obtaining or communicating the information; (3) the plaintiff
justifiably relied on the information; and (4) the defendant’s negligent
misrepresentation proximately caused the plaintiff to suffer pecuniary loss.  See
McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991
S.W.2d 787, 791 (Tex. 1999).  The absence of evidence on the first element was
one ground on which the trial court granted summary judgment on this claim.


