                                  MEMORANDUM OPINION
                                          No. 04-10-00638-CV

                           ENSIL INTERNATIONAL CORPORATION,
                                        Appellant

                                                    v.

                                 LEAR SIEGLER SERVICES, INC.,
                                           Appellee

                      From the 73rd Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2007-CI-10444
                             Honorable Peter A. Sakai, Judge Presiding

Opinion by:       Steven C. Hilbig, Justice

Sitting:          Phylis J. Speedlin, Justice
                  Rebecca Simmons, Justice
                  Steven C. Hilbig, Justice

Delivered and Filed: June 22, 2011

AFFIRMED

           Ensil International Corporation “Ensil” filed suit against Lear Siegler Services, Inc.

“LSI” for fraud. LSI moved for summary judgment, which the trial court granted, and Ensil

appeals. We affirm the trial court’s judgment.

                                           BACKGROUND

           Ensil is engaged in the business of the repair, sale, and reverse engineering of electronics

and electronic components. LSI is a federal contractor for the repair and supply of spare parts for
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aircraft sold to foreign military allies of the United States government. To perform the services

required under the government contract, LSI subcontracts through a competitive bidding process

with other vendors such as Ensil. LSI is compensated on a fee for services basis for each repair

contract, with the potential for bonuses based on performance factors.

       In order to bid on the contracts, vendors initially must be approved by LSI for access to

LSI’s website. Once approved, a vendor can log onto LSI’s secure access website and place bids.

LSI strived for the maximum number of bidders in order to demonstrate competitive bidding in

accordance with its contract with the government. In 2001, Ensil was approached by an LSI

representative and invited to apply to be an approved vendor. Ensil was approved, and between

April 2001 and July 2003, Ensil repaired approximately 4,000 items under this arrangement.

       Ensil contends that in July of 2003 there was a “precipitous drop” in the number of bids

awarded to Ensil. Saulis Brikis and Louis Koikas worked on behalf of Ensil with the LSI

program. Koikas testified he and other Ensil representatives attempted to determine the reason

Ensil was not being selected as a vendor. He stated in his affidavit:

       In each instance, including at a meeting in San Antonio, Texas, that I attended in
       February of 2004, Ensil was assured that the reasons for work not being awarded
       to Ensil were unrelated to any performance issue, but were caused by problems
       within the system that would be worked out and that Ensil should continue to
       submit bids in response to postings on the bulletin board.

Koikas testified Ensil continued to submit bids and was again assured by LSI representative

Stuart Hamm during a telephone conversation in October of 2003 that Ensil’s failure to win

contracts had nothing to do with Ensil’s performance. Koikas said LSI told him the reason Ensil

was not receiving contracts was because the Taiwanese government was re-entering their repair

items into a new data base. Brikis testified he also participated in the October 2003 telephone




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call and heard Hamm make the statement. Brikis testified Hamm stated Ensil should continue to

make bids.

       Ensil continued to bid on jobs until August of 2004 when it was denied password access.

Koikas testified that in November of 2004 he was informed by James Ray, LSI’s program

director, that LSI “had made a decision to discontinue utilizing Ensil as a vendor in July 2003

based on information regarding repairs for the Korean military.”

       Ensil filed suit, asserting claims for deceit, misrepresentation, and fraud, and seeking

damages for the cost for preparing unaccepted bids. LSI moved for a traditional summary

judgment asserting the summary judgment evidence established (1) LSI did not make any

representations to Ensil that its costs and expenses incurred in preparing and presenting bids

would be reimbursed by LSI; (2) LSI did not solicit bids from Ensil; (3) LSI did not make a

decision in July 2003 to stop awarding jobs to Ensil because LSI actually awarded Ensil

$2,157,023.50 in contracts from July 2003 through August 2004; and (4) Ensil admits that it

knew quality of work was one of the criteria used to award bids. LSI also filed a “no evidence”

motion for summary judgment, pleading there was no evidence LSI made any representations to

Ensil that costs and expenses incurred in preparing bids would be reimbursed. LSI also asserted

there was no evidence LSI solicited bids from Ensil during the applicable time period and no

evidence it had no intention of awarding Ensil repair contracts after July 2003.

       The trial court granted the motions and entered a take nothing judgment and Ensil

appeals.

                                         DISCUSSION

       On appeal, Ensil contends the trial court erred in granting a no evidence summary

judgment on LSI’s contentions there is no evidence LSI solicited Ensil to bid and that LSI sought



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bids from Ensil with the intent not to consider them. Ensil also asserts the trial court erred in

granting summary judgment on the ground that costs expended by Ensil in preparing bids were

not recoverable as damages. However, as set out above, LSI asserted numerous other grounds for

a traditional summary judgment. The trial court’s order does not specify on which ground

summary judgment was granted. When the trial court’s judgment does not specify the ground

relied upon for its ruling, if any theories presented to trial court and preserved for appellate

review are meritorious, the judgment must be affirmed. Provident Life & Accident Ins. Co. v.

Knott, 128 S.W.3d 211, 215 (Tex. 2003). Therefore, if any ground presented by LSI to the trial

court is meritorious, the summary judgment must be affirmed.

       To prevail on a traditional summary-judgment motion, a movant must show that no

genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R.

Civ. P. 166a(c). “A movant who conclusively negates at least one essential element of a cause of

action is entitled to summary judgment on that claim.” See IHS Cedars Treatment Ctr. of

DeSoto, Texas, Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004)(citing Sw. Elec. Power Co. v.

Grant, 73 S.W.3d 211, 215 (Tex. 2002)).

       To establish common law fraud, a plaintiff must prove (1) the defendant made a material

representation, (2) which was false, (3) which was either known to be false when made or which

was recklessly made as a positive assertion without knowledge of its truth, (4) which the speaker

made with intent that it be acted upon, and (5) the other party took action in reliance upon the

misrepresentation, and (6) thereby suffered injury. In re FirstMerit Bank, N.A., 52 S.W.3d 749,

758 (Tex. 2001); Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960

S.W.2d 41, 47 (Tex. 1998). As to the intent element, evidence must be presented that a

representation was made with the intent to deceive and with no intention of performing as



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represented at the time the representation was made. Formosa, 960 S.W.2d at 48; Spoljaric v.

Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986). The speaker’s intent at the time of the

representation may be inferred from the speaker’s subsequent acts after the representation was

made. Spoljaric, 708 S.W.2d at 434.

       Ensil pled LSI solicited bids from Ensil throughout July 2003 to May 2004 even though it

had no intention to award bids to Ensil during that time period. Ensil alleged LSI’s “solicitation

and acceptance of bids throughout the period of July 2003 to May 2004 without an intention of

awarding any contracts to Ensil were acts of deceit, misrepresentation and fraud.” LSI moved for

a traditional summary judgment on the ground the evidence established LSI did not intend to

deceive Ensil.

       LSI presented the affidavit of Halbert F. Taylor, Jr. who is LSI’s deputy program director

for logistics. Taylor testified that Ensil provided initial bids to LSI during July 2003 through May

2004, of which 81 were accepted. Additionally, Ensil’s responsive summary judgment evidence

also establishes LSI considered and accepted some of Ensil’s bids. Koikas testified there was

“significant reduction in the selection of Ensil as a vendor.” Brikis likewise testified that

beginning in 2003 through July 2004 “there was a marked and dramatic reduction in the number

of occasions on which Ensil was selected as a repair vendor.” However, Brikis also stated the

exhibits attached to his affidavit reflected the purchase orders and showed the date some

contracts were awarded. The exhibit shows Ensil was awarded contracts in July, August,

September of 2003 and several in January of 2004.

       The evidence demonstrates Ensil was awarded contracts during the relevant timeframe.

Thus, Ensil’s fraud claim fails because the evidence establishes LSI considered bids from Ensil

and awarded it contracts during the very time Ensil plead that LSI had no intention to consider its



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bids or award it contracts. This evidence conclusively negates an essential element of Ensil’s

fraud claim — that when LSI represented that Ensil should submit bids and they would be

considered LSI had no intention of performing as represented. See, e.g., Reyna v. First Nat. Bank

in Edinburg, 55 S.W.3d 58, 68 (Tex. App.—Corpus Christi 2001, no pet.) (defendant promised

to pay for equipment upon delivery and partial payment negated any claim that they had no

intention of paying). 1

           We affirm the trial court’s judgment.




                                                            Steven C. Hilbig, Justice




1
    Because we hold the evidence conclusively negates the intent element, we need not address Ensil’s other issues.

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