                                                                                    ACCEPTED
                                                                                05-15-00375-CV
                                                                     FIFTH COURT OF APPEALS
                                                                                DALLAS, TEXAS
                                                                          6/11/2015 11:12:26 AM
                                                                                     LISA MATZ
                                                                                         CLERK

                    No. 05-15-00375-CV
             _______________________________
                                                            FILED IN
                                                     5th COURT OF APPEALS
            IN THE FIFTH COURT OF APPEALS                 DALLAS, TEXAS
                     DALLAS, TEXAS                   6/11/2015 11:12:26 AM
             _______________________________                LISA MATZ
                                                              Clerk
                DIERS JONES & STARK, INC.
                    Plaintiffs-Appellant

                               v.

                     COMERICA BANK
                     Defendants-Appellee

On Appeal from the 298th District Court of Dallas County, Texas;
                   Cause No. DC-14-06296
              ____________________________

                  BRIEF OF APPELLANT
               DIERS JONES & STARK, INC.
               ____________________________


                                    JOHN. C. CUNNINGHAM
                                    COUNSELOR AT LAW, P.C.
                                    State Bar No.05240150
                                    5116 Bissonnet #367
                                    Bellaire, Texas 77401
                                    (713) 218-8985 Office
                                    (713) 218-8255 Facsimile
                                           (713) 703-1552 Cellular
                                    Email: cunningj1@comcast.net

                                    ATTORNEY FOR APPELLANT
                                    DIERS, JONES & STARK, INC.



         IDENTITY OF PARTIES AND COUNSEL

                               1
     The undersigned counsel of record certifies that the following listed persons

and entities have an interest in the outcome of this case. These representations are

made in order that the judges of this Court may evaluate possible disqualification

or recusal.

A.    John C. Cunningham
      Counselor at Law
      State Bar No.05240150
      5116 Bissonnet #367
      Bellaire, Texas 77401
      (713) 218-8985 Office
      (713) 218-8255 Facsimile
      (713) 703-1552 Cellular
      Email: cunningj1@comcast.net
      ATTORNEY FOR APPELLANT
      DIERS, JONES & STARK, INC.

B.    DIERS, JONES & STARK, INC.
      Ken Diers
      Harry Starks
      9101 Lisa Lane
      Port Arthur, Texas 77640
      APPELLANT


C.    Scott Hayes
      State Bar No. :09280050
      Vincent, Serifino, Lopez, & Jenevein
      1601 Elm Street
      Suite 4100
      Dallas, Texas, 75201
      (214) 979-7400 Office
      (214) 979-7402 Facsimile
      ATTORNEY FOR APPELLEE COMERICA BANK

D.    Comerica Bank

                                          2
Charles Prack
P.O. Box 650282
Dallas, Texas 75265-0282
APPELLEE




                           3
                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ……………………………………...2

TABLE OF CONTENTS ………………………………………………………….4

TABLE OF AUTHORITIES ………………………………………………………6

I. STATEMENT OF THE CASE…………………………………………………..9

II. STATEMENT OF THE FACTS........................................................................10

     A. PROCEDURAL HISTORY ........................................................................ 10

     B.      FACTUAL BACKGROUND......................................................................

             11

III. STATEMENT OF THE ISSUES......................................................................15

IV. SUMMARY OF THE ARGUMENT…………………………………………16

V. ARGUMENT AND AUTHORITIES ………………………………………....17

A.        Whether DJ&S is entitled to Prevail on its Breach of Contract action against

Comerica when DJ&S complied with the contract and the contract was drafted by

Comerica and Ambiguous………………………………………………………...17

B.        Whether DJ&S is entitled to pursue its claims for damages from Comerica

for fraud and negligent misrepresentation where Comerica represented to DJ&S

and DJ&S relied on the representations that Comerica wanted to seize and sell the

vessels at auction when Comerica claimed Comerica had cleared the titles to three

vessels without Comerica being in the chain of title. …………………………20

                                                   4
C.    Whether DJ&S is entitled to pursue a recovery in quantum meriut when

DJ&S partially performed an express contract but was prevented from completing

that contract because of Comerica’s actions………………………………………28

D.    Fact Issues Exist Precluding the Issuance of a Motion for Summary

Judgment. …………………………………………………………………………31

VI. CONCLUSION…………..…………...……………………………………....34

CERTIFICATE OF SERVICE……………………………………………………35




                                       5
                        TABLE OF AUTHORITIES

Cases

Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am.,
54 Tex. Sup. Ct. J. 822, 830, 341 S.W.3d 323 (Tex. 2011) ……………………...21

Aquaplex, Inc. v. Rancho la Valencia, Inc.,
297 S.W.3d 768, 774 (Tex. 2009) (per curiam)…………………………………..21

De Santis v. Wackenhut Corp.,
793 S.W.2d 670, 688 (Tex. 1990) ………………………………………………..21

Stone v. Lawyers Title Ins. Corp.,
554 S.W.2d 183, 185 (Tex. 1977)………………………………………………...21

Federal Land Bank v. Sloane,
825 S.W.2d 439, 442 (Tex. 1991………………………………………………….25

Truly v. Austin,
744 S.W.2d 934, 936 (Tex. 1988)…………………………………………………28

Vortt Exploration v. Chevron U.S.A.,
787 S.W.2d 942, 944 (Tex. 1990)…………………………………………………29

Colbert v. Dallas Joint Stock Land Bank of Dallas,
129 Tex. 235, 102 S.W.2d 1031, 1034–1035 (1937)……………………………. 30

Colbert v. Dallas Joint Stock Land Bank of Dallas,
102 S.W.2d @ 1034–1035 ……………………………………………………….31

Science Spectrum, Inc. v. Martinez,
941 S.W.2d 910, 911 (Tex. 1997) …………………………………………….......31

Harwell v. State Farm Mut. Auto. Ins. Co.,
896 S.W.2d 170, 173 (Tex. 1995)…………………………………………………32

Nixon v. Mr. Property Management Co.,

                                        6
690 S.W.2d 546, 548-549 (Tex. 1985)…………………………………………….19

In re Estate of Price,
375 S.W.2d 900, 904 (Tex. 1964)…………………………………………………33

Mariner Financial Group v. H.G. Bossley,
79 S.W.3d 30, 32-33 (Tex. 2002)………………………………………………….33

Gaines v. Hamman,
163 Tex. 618, 358 S.W.2d 557, 563 (1962)……………………………………….33

Nixon v. First State Bank of Corpus Christi,
540 S.W.2d 817, 820-821 (Tex. Civ. App.--Corpus Christi 1976), writ
ref'd n.r.e. per curiam, 544 S.W.2d 378 (Tex. 1976)……………………………...32

J. R. Gray Company v. Jacobs,
362 S.W.2d 167, 171 (Tex. Civ. App.--Austin 1962, writ ref'd n.r.e………………19

O'Grady v. Gerald D. Hines, Inc.,
683 S.W.2d 763, 765 (Tex. App.--Houston [14th Dist.] 1984, no writ…………....20

Stowers v. Harper,
376 S.W.2d 34, 41 (Tex. Civ. App.--Tyler 1964, writ ref'd n.r.e.)……………….. 20

Scherer v. Angell,
253 S.W.3d 777, 781 (Tex. App.—Amarillo 2007, no pet.) ...................................24

Abrams Ctr. Nat’l Bank v. Farmer, Fuqua, & Huff, P.C.,
225 S.W.3d 171, 174–177 (Tex. App.—El Paso 2005, no pet.)…………………...25

Cook Consultants, Inc. v. Larson,
700 S.W.2d 231, 235 (Tex. App.—Dallas 1985, writ ref’d n.r.e.)………………...25

Walker & Associates Surveying v. Roberts,
306 S.W.3d 839, 858 (Tex. App.—Texarkana 2010, no pet.)……………………..28

Protocol Techs., Inc. v. J.B. Grand Canyon Dairy, L.P.,
406 S.W.3d 609, 613–614 (Tex. App.—Eastland 2013, no pet. h.)……………….29

Bluelinx Corp. v. Tex. Constr. Sys.,


                                              7
363 S.W.3d 623, 627 (Tex. App.—Houston [14th Dist.] 2011, no pet.)…………..29

Fulgham v. Fischer,
349 S.W.3d 153, 159 (Tex. App.—Dallas 2011, no pet.)………………………...29

Concept Gen. Contr. v. Asbestos Maintenance,
346 S.W.3d 172, 183 (Tex. App.—Amarillo 2011, pet. denied)…………………29

Smith v. Pulliam, Inc.,
388 S.W.2d 329, 331 (Tex. Civ. App.—Fort Worth 1965),
writ ref’d n.r.e. 394 S.W.2d 791 (Tex. 1965)…………………………….............30

Allen v. A & T Transp. Co. Inc.,
79 S.W.3d 65, 68 (Tex. App.--Texarkana 2002, pet. denied)……………….........31

Jeter v. McGraw,
79 S.W.3d 211, 214 (Tex. App.--Beaumont 2002, pet. Denied)………………….31

In Matter of J.A.M.,
945 S.W.2d 320, 322 (Tex. App.--San Antonio 1997, no writ)…………………..32

Bauer v. Jasso,
946 S.W.2d 552, 556 (Tex. App.--Corpus Christi 1997, no writ)………………...32

Robinson v. Chiarello,
806 S.W.2d 304, 307 (Tex. App.--Fort Worth 1991, den.)……………………….32

Casey v. Amarillo Hosp. Dist.,
947 S.W.2d 301, 303-304 (Tex. App.--Amarillo 1997, den.)…………………….33


Statutes, Rules and Regulations

Tex. R. Civ. P. 166a(c) …………………………………………………………...32

Restatement (Second) of Torts § 552 …………………………………………….22




                                     8
                                        I.

                           STATEMENT OF THE CASE

      This appeal arises out of the denial of a Partial Motion for Summary

Judgment filed by Appellant/Plaintiff DIERS, JONES& STARK, INC. (DJ&S) on

DJ&S’s breach of contract claim against Appellee/Defendant, Comerica Bank

(Comerica) and the partial granting of a Motion for Summary Judgment filed by

and rendered in favor of Comerica against DJ&S’s breach of contract claim on

October 17, 2014.

      This appeal also arises out of the granting of Appellee/Defendant Comerica’s

Second Motion for Summary Judgment as to Appellant/Plaintiff DJ&S remaining

claims for monetary damages stemming from DJ&S’s allegations of Comerica’s

fraud, negligent misrepresentation and claims for quantum meriut on March 20,

2015. The granting of Comerica’s Second Motion for Summary Judgment resulted

in the final disposition of the case.

      An appeal was perfected by DJ&S by the timely filing of a notice of appeal

on March 23, 2015.




                                        II.


                                        9
                         STATEMENT OF THE FACTS

      The following facts are relevant to the issues raised on appeal.

A.    PROCEDURAL HISTORY

      Appellant/Plaintiff DJ&S filed suit against Appellee/Defendant, Comerica

alleging breach of contract and fraud on 06-12-2014. CR. 06. An Answer was filed

by Comerica on 07-14-2014. CR. 10. Comerica filed a Motion for Summary

Judgment on 07-21-2014. CR. 12. DJ&S filed a Motion for Partial Summary

Judgment on 07-30-1015.CR 23. Exhibits to support the Motion for Partial

Summary Judgment were filed with a Notice of filing on July 31, 2014. CR. 34

      A Uniform Scheduling Order was issued on July 30, 2014. CR. 29. The

original trial judge issued an Order of Recusal on 07-30-2014. CR. 22. The case

was transferred to a new judge by an Order of Transfer on 07-30-2014. CR 32.

      DJ&S filed a Response to Comerica’s Motion for Summary Judgment with

supporting evidence on 08-06-2014. CR. 46. DJ&S filed an Amended Notice of a

Hearing for its Partial Motion for Summary Judgment on August 12, 2014. CR. 66.

DJ&S filed a Supplement to its Partial Motion for Summary Judgment with

additional supporting evidence on 09-25-2014. CR. 68-82. Comerica filed a

Response to DJ&S’s Motion to Summary Judgment on 10-10-2014.CR. 89. DJ&S

filed an Amended Petition alleging new claims for quantum meriut on 09-30-2014.

CR. 83. The Court denied DJ&S’s Partial Motion for Summary Judgment on 10-



                                         10
17-2014 CR. 112.The Court granted in part, Comerica’s Motion for Summary

Judgment on 10-17-2015. CR. 113.

      A Request for a Jury Trial was made and the jury fee paid on 01-06-1015.

CR. 114. DJ&S filed a Second Amended Petition alleging a new claim for Claim

for negligent misrepresentation on 01-13-2015. CR. 117. Comerica filed an

Amended Answer on 03-10-2015. CR. 286.

      Comerica filed a second Motion for Summary Judgment on 01-23-2015. CR.

125. DJ&S filed a Response to Comerica’s second Motion for Summary Judgment

with evidence on 03-11-2015. CR. 288. Comerica filed a Reply to DJ&S’s

Response to Comerica’s second Motion for Summary Judgment on 03-19-2015.

CR. 302.The Court Granted Comerica’s second Motion for Summary Judgment on

03-20-2015. CR. 305.

      DJ&S filed a Notice of Appeal on 03-23-2015. CR. 306. A Bill of Costs was

filed. CR. 312. The Clerk’s record was filed as well. CR. 319.

B.    FACTUAL BACKGROUND

      It is and was undisputed as stated in the affidavits of Harry Stark in CR. 36-

38, CR. 288-290, 298-299, and 300, that on October 5, 2013, Diers, Jones and

Stark, Inc. (DJ&S.) accepted an assignment to assist Comerica Bank with taking

custody of the three Motor Vessels “TKL BARRIOS”, “BEVERLY G. BARRIOS”

and “CAPT. LES BARRIOS”, following bankruptcy court proceedings at the U. S.



                                         11
District Court, Eastern District of Louisiana. DJ&S arranged for the vessels to be

transferred to the Custody of Washburn Marine Shipyard, and towed the three

vessels from Harvey, Louisiana, to Washburn Marine’s facility in Morgan City,

Louisiana, where the vessels would be hauled out of the water and blocked up

ashore, so they could be shown to prospective buyers. When DJ&S was making

the arrangements for the care and custody of the three (3) vessels, DJ&S asked

Comerica Bank if the U.S. Marshal Service would be meeting DJ&S at Harvey,

Louisiana, to legally seize the three (3) vessels, as DJ&S had seen in the past

following a bankruptcy. Id. The individuals at DJ&S are not lawyers. CR. 300.

Comerica advised that they did not want the U. S. Marshal Service involved, due to

the expense of their fees. CR. 288 and 300. Additionally, Comerica went on to

advise DJ&S that the vessel's titles had already been cleared of any and all liens by

the bankruptcy Court. Comerica further advised that they wanted to be able to sell

the three (3) BARROIS vessels without having Comerica Bank listed on any of the

titles. Comerica advised DJ&S that when the vessels would be sold, the titles

would be changed from the previous owner (BARROIS - Five B's) directly to the

new buyer.

      Following the completion of the assignment to arrange for the transfer of the

vessels to the care and custody of Washburn Marine Shipyard, Morgan City,

Louisiana, Comerica Bank requested DJ&S prepare a contract for DJ&S to solicit



                                         12
bids for Comerica Bank to sell the three (3) subject vessels. DJ&S prepared a

contract and sent it to Comerica Bank, however Comerica Bank rejected DJ&S’s

proposed contract. Rather, Comerica Bank had their attorneys draft a new contract

and submit the new contract to DJ&S for acceptance and signature. CR. 37.

      DJ&S reviewed and signed the new contract that was prepared by Comerica

Bank's attorneys, on November 13, 2013. CR. 39-41, to solicit bids by bid request

letter, email, internet and publications. Comerica Bank agreed to pay DJ&S a 12%

commission for the Comerica Bank accepted bids. CR. 40 para. 11.

      DJ&S began soliciting bids on December 9, 2013 and opened the bids on

January 10, 2014. After reviewing the bids, DJ&S notified Comerica Bank of the

highest bidders. After several telephone conversations, Comerica Bank instructed

DJ&S to attempt to obtain higher bids from the highest bidders. DJ&S was able to

substantially increase the amount of two of the bids. CR. 37. Upon getting the bids

increased, DJ&S forwarded the revised elevated bid amounts to Comerica, who

immediately accepted the higher bids. DJ&S was then instructed by Comerica to

contact the highest bidders and inform them that their bids were accepted, which

DJ&S did. Id. The bids accepted by Comerica are as follows:

M/V “BEVERLY G. BARRIOS” - $ 355,000.00,

M/V “CAPT. LES BARRIOS” - $ 226,000.00; and

M/V “TKL BARRIOS” - $ 90,000.00.



                                        13
      On January 13, 2013, Comerica Bank requested that the vessel buyer(s) wire

their funds to Comerica Bank so Comerica Bank could complete the transfer of

ownership and bill of sale to the buyers. With Comerica’s acceptance of the bids,

DJ&S met their contractual obligations as per the Comerica contract such that

DJ&S was and is entitled to its full commissions of 12% of$671,000 or

$80,520.00. Id.

      Despite accepting the three (3) bids, Comerica Bank delayed the completion

of the sales through April 2, 2014 by not being able to furnish clean unencumbered

titles for the three (3) vessels. Due to Comerica Bank’s delays, on or about

February 1, 2014, the buyer of the “TKL BARRIOS” withdrew their bid. The

buyer of the “BEVERLY G. BARRIOS” and “CAPT. LES BARRIOS” also

withdrew their bids on April 22, 2014 due to Comerica Bank’s delays and inability

to furnish clean unencumbered titles. CR. 37-38.

.     Following these new developments, Comerica Bank made arrangements for

the three (3) Barrios vessels to be seized and sold by the U. S Marshal Service. CR.

38.   On June 4, 2014, Comerica Bank attended the federal marshal sale in

Lafayette, Louisiana. Comerica Bank was the buyer of the three (3) vessels. Upon

information and belief, Comerica Bank is believed to have obtained the three (3)

vessels for $655,000.00, which is $16,000.00 less than DJ&S had the vessels sold




                                        14
for. CR. 38. As a result of Comerica’s delays, DJ&S also incurred post bid

acceptance fees and costs to date totaling $5,385.00. CR. 38, 42-45.



                                        III.

                        STATEMENT OF THE ISSUES

A.    Whether DJ&S is entitled to Prevail on its Breach of Contract action

against Comerica when DJ&S complied with the contract and the contract

was drafted by Comerica and Ambiguous.

B.    Whether DJ&S is entitled to pursue its claims for damages from

Comerica for fraud and negligent misrepresentation where Comerica

represented to DJ&S and DJ&S relied on the representations that Comerica

wanted to seize and sell the vessels at auction when Comerica claimed

Comerica had cleared the titles to three vessels without Comerica being in the

chain of title.



C.    Whether DJ&S is entitled to pursue a recovery in quantum meriut

when DJ&S partially performed an express contract but was prevented from

completing that contract because of Comerica’s actions.

D.    Fact Issues Exist Precluding the issuance of a Motion for Summary

Judgment



                                        15
                                       IV.

                     SUMMARY OF THE ARGUMENTS

      The District Court erred in denying Appellant/Plaintiff DJ&S’s Partial

Motion for Summary Judgment on DJ&S’s breach of contract claim against

Appellee/Defendant Comerica on October 17, 2014, when DJ&S complied with

the contract between DJ&S and Comerica and the contract was ambiguous and

drafted by Comerica. The District Court erred in granting Appellee/Defendant,

Comerica’s Motion for Summary Judgment rendered in favor of

Appellee/Defendant, Comerica, against Appellant/Plaintiff DJ&S on October 17,

2015 when the District Court found the contract between DJ&S and Comerica and

drafted by Comerica was unambiguous and ruled in favor of Comerica. The

District court also erred when it granted Comerica’s Motion for Summary

Judgment rendered in favor of Appellee/Defendant, Comerica, against

Appellant/Plaintiff DJ&S remaining claims on March 20, 2015 when evidence

existed to support DJ&S’s causes of action against Comerica and numerous fact

issues existed as to the claims brought by DJ&S against Comerica.



                                        V.

                     ARGUMENT AND AUTHORITIES



                                        16
A.    Whether DJ&S is entitled to Prevail on its Breach of Contract action

against Comerica when DJ&S complied with the contract and the contract

was drafted by Comerica and Ambiguous.

      DJ&S filed a Motion for summary Judgment against Comerica claiming the

plain wording of the agreement shows that DJ&S earned its 12% commission from

Comerica. CR. 28, 34-45. Specifically the contract states in paragraph 11 that,

”Comerica agrees to pay DJ&S for the services rendered a commission of

twelve percent (12%) of the final bid price from the consummated sale of the

vessels accepted by Comerica.” CR. 40.

      The highest bid prices were:

M/V “BEVERLY G. BARRIOS” - $ 355,000.000

M/V “CAPT. LES BARRIOS” - $ 226,000.00

M/V “TKL BARRIOS” - $ 90,000.00. CR. 25 and 37.

      The total of the highest bids is $671,000. Id. DJ&S argued that it should be

entitled to 12% of the total of the highest bids or $80,520. It should be undisputed

that Comerica accepted the bids, however the affidavit of Harry Starks, attached as

evidence to the Motion for Summary Judgement also evidences these facts. CR.

37. Comerica took the position that the relevant sentence in the contract is

controlled and altered by the wording “from the consummated sale” and the next

sentence which states, “The full amount shall be due and payable to DJ&S from



                                         17
the proceeds of the sale of the vessel at the Bid Sale.” DJ&S argued the terms

“from the consummated sale” and the second sentence of the contract only

describe where the money to pay DJ&S may come from, not when the commission

is fully earned by and due to DJ&S. CR. 26. Such should be decided by the

wording “Comerica agrees to pay DJ&S for the services rendered a

commission of twelve percent (12%) of the final bid price. . . ..”. Id.

      For the District Court to hold that the terms “consummated sale of the

vessels” and the second sentence of the contract rules over the wording “Comerica

agrees to pay DJ&S for the services rendered a commission of twelve percent

(12%) of the final bid price. . . ..” would result in DJ&S being defrauded by

Comerica, in allowing DJ&S to do the work without any pay from Comerica. Such

should not be the result or Texas law, particularly since Comerica’s attorney’s

drafted the contract (CR. 36) and it was Comerica’s failure to provide clean titles,

not any fault of DJ&S that resulted in the sales failing CR. 36 and 38. This is

particularly true since DJ&S instructed Comerica how to obtain and notified

Comerica of the common practice for obtaining clear, clean titles of vessels after a

bankruptcy. CR. 36. It was Comerica’s decision not to go through a U. S. Marshal

Service sale even after having their attorney’s review the matter and draw up the

Comerica contract! DJ&S are not attorney’s and did not know the legal




                                         18
significance of a marshal sale, only that DJ&S had seen it used in the past. CR. 292

and 300.

      Contract language is considered unambiguous if it is susceptible to only one

meaning after applying the pertinent rules of construction. In such cases, the

construction of the contract is a matter of law and extrinsic evidence of the

intentions of the parties or of general practice or custom is not necessary or proper.

Nixon v. First State Bank of Corpus Christi, 540 S.W.2d 817, 820-821 (Tex. Civ.

App.--Corpus Christi 1976) , writ ref'd n.r.e. per curiam, 544 S.W.2d 378 (Tex.

1976) ; J. R. Gray Company v. Jacobs, 362 S.W.2d 167, 171 (Tex. Civ. App.--Austin

1962, writ ref'd n.r.e.). Here, the relevant sentence in the contract is unambiguous

and only made ambiguous by the inclusion of the second part of the sentence and

the references to a sale in sentence two. The issue of whether a contract is

ambiguous is, itself, a question of law O'Grady v. Gerald D. Hines, Inc., 683

S.W.2d 763, 765 (Tex. App.--Houston [14th Dist.] 1984, no writ. If there is doubt

regarding the construction of a contract, as it is here, the doubt must be resolved

against the party that drafted it. Stowers v. Harper, 376 S.W.2d 34, 41 (Tex. Civ.

App.--Tyler 1964, writ ref'd n.r.e.). Here the party that drafted the contract, with the

assistance of counsel, was Comerica, not DJ&S.

B.    Whether DJ&S is entitled to pursue claims for damages from Comerica

for fraud and negligent misrepresentation where Comerica represented to



                                           19
DJ&S and DJ&S relied on the representations that Comerica had cleared the

titles to three vessels without Comerica being in the chain of title such that

Comerica wanted to seize and sell the vessels at auction.

      DJ&S brought claims against Comerica for fraud, negligent and intentional

misrepresentation CR. 120-121. The Trial Court erred in granting Comerica’s

Motion for Summary and dismissing DJ&S’s actions against Comerica for fraud,

negligent and intentional misrepresentation when DJ&S presented evidence to

support the claims and fact issues existed as to the claims 298-300, 305.

Comerica claimed in its Second Motion for Summary Judgment that DJ&S was not

entitled to bring a fraud or misrepresentation claims because DJ&S knew

Comerica’s misrepresentations were false. CR. 125. Such is not true and was

rebutted with evidence. CR. 300.

1.    Fraud Claim

      Texas law provides that the following actions constitute actionable fraud

based on misrepresentation:

      (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;




                                          20
       (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

       (5) the party thereby suffered injury; Italian Cowboy Partners, Ltd. v.

Prudential Ins. Co. of Am., 54 Tex. Sup. Ct. J. 822, 830, 341 S.W.3d 323 (Tex.

2011) ; Aquaplex, Inc. v. Rancho la Valencia, Inc., 297 S.W.3d 768, 774 (Tex.

2009) (per curiam); De Santis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex.

1990) ; Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex. 1977).

       In response to Comerica’s Motion for Summary Judgment and the earlier

Summary Judgment:

       DJ&S presented evidence that Comerica represented to DJ&S that the three

vessel's titles had already been cleared of any and all liens by the bankruptcy

Court. CR. 62

       DJ&S presented evidence that Comerica further advised that they wanted to

be able to sell the three (3) BARROIS vessels without having Comerica Bank

listed on any of the titles. Id.

       DJ&S presented evidence that Comerica advised DJ&S that when the

vessels would be sold, the titles would be changed from the previous owner

(BARROIS - Five B's) directly to the new buyer. Id.




                                          21
      DJ&S presented evidence that Comerica represented that Comerica had

marketable titles (vessels that could be sold at a public auction) to sell the three

vessels when it did not. Id.

      DJ&S showed that fact issues exist as to whether Comerica knew that it did

not have marketable titles. CR. 289.

      DJ&S presented evidence that DJ&S knew that Comerica wanted to seize

and sell the vessels without Comerica being in the chain of title. CR. 64.

      DJ&S presented evidence that although DJ&S knew that Comerica’s

approach was different from what DJ&S had seen in the past, the effect of

Comerica’s approach was unknown to DJ&S. CR. 300.

      DJ&S showed that fact issues exist as to whether Comerica made false

allegations to get DJ&S to enter into the contract Comerica drafted and to have

DJ&S first seize and then auction three vessels for sale. CR. 63.

      DJ&S presented evidence that DJ&S relied on the misrepresentations by

Comerica and entered into the contract with Comerica. Id.

      DJ&S presented evidence that DJ&S suffered monetary damages as a result

of Comerica’s actions. CR, 64.

      In response to Comerica’s Motion for Summary judgment and the earlier

Summary Judgment, DJ&S presented evidence to support the following issues and




                                           22
that at a minimum fact issues exist to the following issues with respect to DJ&S’s

fraud cause of action:

      (1) whether material representations were made by Comerica; CR. 62

      (2) whether the representations made by Comerica were false; Id.

      (3) whether Comerica knew the representations it made were false or made

them recklessly without any knowledge of the truth and as a positive assertion; Id.

      (4) whether DJ&S knew the representations Comerica made were false or

made them recklessly without any knowledge of the truth and as a positive

assertion; CR. 300.

      (5) whether Comerica made the representations with the intent that DJ&S

should act upon them; CR. 63

      (6) whether DJ&S acted in reliance on the representations; Id. and

      (7) whether DJ&S thereby suffered injury. CR. 64

2.    Negligent Misrepresentation

      DJ&S brought claims against Comerica for negligent misrepresentation. CR.

121. The Trial Court erred in granting Comerica’s Motion for Summary and

dismissing DJ&S’s actions against Comerica for negligent misrepresentation when

DJ&S presented evidence to support its claims and fact issues existed as to the

claims. CR. 298-300 and 305.




                                         23
       The courts of Texas have recognized the independent tort of negligent

misrepresentation, but have restricted it to the business context such as the business

that occurred between Comerica and DJ&S here.

      (1) The defendant made the representation in the course of its business

      or in a transaction in which it has a pecuniary interest;

      (2) The defendant supplied false information for the guidance of

      others in their business. See Scherer v. Angell, 253 S.W.3d 777, 781

      (Tex. App.—Amarillo 2007, no pet.) (misrepresentation must relate to

      some existing fact, not promise or statement as to future conduct);

      (3) The defendant did not exercise reasonable care or competence in

      obtaining or communicating the information; and

      (4) The plaintiff suffered pecuniary loss by justifiably relying on the

representation.

      The above elements of this tort can be found in Federal Land Bank v.

Sloane, 825 S.W.2d 439, 442 (Tex. 1991) and Restatement (Second) of Torts § 552:

See Abrams Ctr. Nat’l Bank v. Farmer, Fuqua, & Huff, P.C., 225 S.W.3d 171, 174–

177 (Tex. App.—El Paso 2005, no pet.) (liability for negligent misrepresentation

requires that defendant have actual knowledge of third party’s reliance on

information). The identification of the persons to whom a duty is owed is made by

scrutinizing the particular risk to which the victim was subjected, which involves



                                          24
weighing several factors, including (1) the extent to which the transaction was

intended to affect the plaintiff; (2) the foreseeability of harm to the plaintiff; (3) the

closeness of the connection between the defendant’s conduct and the injury

suffered; and (4) the potential liability. See Cook Consultants, Inc. v. Larson, 700

S.W.2d 231, 235 (Tex. App.—Dallas 1985, writ ref’d n.r.e.).

      In response to Comerica’s Motion for Summary Judgment and the earlier

Summary Judgment:

      DJ&S presented evidence that Comerica represented to DJ&S that the three

subject vessel’s titles had already been cleared of any and all liens by the

bankruptcy Court. CR. 62

      DJ&S presented evidence that Comerica advised DJ&S that Comerica

wanted to be able to sell the three (3) BARROIS vessels without having Comerica

Bank listed on any of the titles. Id.

      DJ&S presented evidence that Comerica advised DJ&S that when the

vessels would be sold, the titles would be changed from the previous owner

(BARROIS - Five B's) directly to the new buyer. Id.

      DJ&S presented evidence that Comerica represented to DJ&S that Comerica

had marketable titles to the three (3) BARROIS vessels (vessels that could be sold

at a public auction) when Comerica did not. Id.




                                            25
      DJ&S showed that fact issues exist as whether Comerica knew or should

have known that Comerica it did not have marketable titles. CR. 289.

      DJ&S presented evidence that the approach Comerica was taking was

different from what DJ&S had seen in the past. CR. 300

      DJ&S presented evidence that the effect of Comerica’s approach was

unknown to DJ&S. Id.

      DJ&S showed that fact issues existed that Comerica made false allegations

to get DJ&S to enter into the contract Comerica drafted and to have DJ&S first

seize and then auction the three vessels for sale. CR. 63.

      DJ&S presented evidence that DJ&S relied on the misrepresentations by

Comerica and entered into the contract with Comerica. Id.

      DJ&S presented evidence that DJ&S has suffered monetary damages as a

result of Comerica’s actions. CR. 64

      In response to Comerica’s Motion for Summary judgment and the earlier

Summary Judgment DJ&S presented evidence to support the following issues and

that at a minimum fact issues exist to the following issues with respect to DJ&S’

negligent misrepresentation cause of action:

      DJ&S showed that issues exist with respect to this cause of action:




                                         26
        (1) Whether Comerica made the representations to DJ&S in the course

        of its business or in a transaction in which it had a pecuniary interest;

        CR. 62.

        (2) Whether Comerica supplied false information to DJ&S for the

        guidance of DJ&S in its business; Id.

        (3) Whether Comerica did not exercise reasonable care or competence

        in obtaining or communicating the information to DJ&S; Id and 64.

        (4) whether DJ&S knew the representations Comerica made were

        false or made them recklessly without any knowledge of the truth and

        as a positive assertion; CR. 63-64 and

        (5) Whether DJ&S suffered pecuniary loss by justifiably relying on

        the representation. CR. 64.

C.      Whether DJ&S is entitled to pursue a recovery in quantum

meriut when DJ&S partially performed an express contract but was

prevented from completing that contract because of Comerica’s actions.

        DJ&S brought claims in quantum meriut against Comerica for recovery

     for the reasonable value of the services DJ&S rendered to Comerica and

     Comerica accepted. CR. 120. The Trial Court erred in granting Comerica’s

     Motion for Summary and dismissing DJ&S’s actions against Comerica for

     recovery for the reasonable value of the services DJ&S rendered to



                                            27
Comerica and Comerica accepted when DJ&S presented evidence to

support the claims and fact issues existed as to the claims. CR. 298-300.

   Comerica argued that Texas Law does not allow for recovery in

quantum meriut when there is an express contract. CR. 134. However,

DJ&S responded to Comerica’s Motion for Summary Judgment by showing

that Texas law does provide a quantum meriut cause of action, such as

DJ&S’s, is allowed when a plaintiff, such as DJ&S has partially performed

an express contract but is prevented from completing that contract because

of the defendant’s, such as Comerica’s, breach. CR. 294-295. See Truly v.

Austin, 744 S.W.2d 934, 936 (Tex. 1988); Walker & Associates Surveying v.

Roberts, 306 S.W.3d 839, 858 (Tex. App.—Texarkana 2010, no pet.).

   Under Texas law, a plaintiff asserting a quantum meruit claim based on a

contract must establish that:

   1. Valuable services were rendered or materials were furnished;

   2. The services were rendered for the recipient sought to be charged;

   3. The services and materials were accepted by the person sought to be

   charged; and

   4. The services and materials were accepted under such circumstances

   as reasonably notified the defendant/recipient that the plaintiff, in

   performing the services, expected to be paid by the recipient.



                                       28
            The above cause of action can be found in Vortt Exploration v.

      Chevron U.S.A., 787 S.W.2d 942, 944 (Tex. 1990); Protocol Techs., Inc.

      v. J.B. Grand Canyon Dairy, L.P., 406 S.W.3d 609, 613–614 (Tex. App.

      —Eastland 2013, no pet. h.); Bluelinx Corp. v. Tex. Constr. Sys., 363

      S.W.3d 623, 627 (Tex. App.—Houston [14th Dist.] 2011, no pet.);

      Fulgham v. Fischer, 349 S.W.3d 153, 159 (Tex. App.—Dallas 2011, no

      pet.); Concept Gen. Contr. v. Asbestos Maintenance, 346 S.W.3d 172,

      183 (Tex. App.—Amarillo 2011, pet. denied).

      1. DJ&S was prevented from completing the contract by

         Comerica’s actions.

      In its response to Comerica’s Motion for Summary Judgment, DJ&S showed

that fact issues existed as to whether DJ&S was prevented from fully performing

because Comerica had not cleared the titles to the three (3) BARROIS vessels in

bankruptcy, thus resulting in the winning bidders eventually withdrawing their

bids. CR. 294.

      Accordingly fact issues exist as to:

      1. Whether Comerica had properly cleared the titles to the three (3)

         BARROIS vessels in bankruptcy;

      2. Whether Comerica’s actions prevented DJ&S from fully performing.

      2. Comerica accepted the services provided by DJ&S.



                                         29
      DJ&S also showed in its Response to Comerica’s Motion for Summary

Judgment, that Texas law only requires that a defendant, such as Comerica,

either accepted the services or accepted the benefit of the services. CR. 294-

295. Colbert v. Dallas Joint Stock Land Bank of Dallas, 129 Tex. 235, 102

S.W.2d 1031, 1034–1035 (1937). An example of the acceptance of services

may consist of work performed for the defendant/recipient of the services with

the recipient’s knowledge and consent. Smith v. Pulliam, Inc., 388 S.W.2d 329,

331 (Tex. Civ. App.—Fort Worth 1965), writ ref’d n.r.e. 394 S.W.2d 791 (Tex.

1965).

      Comerica had argued that Texas law requires that the defendant

benefited from the services provided. This is not the law. There is no

requirement in Texas law, that the defendant benefited from the services

provided. Colbert v. Dallas Joint Stock Land Bank of Dallas, 102 S.W.2d @

1034–1035.

D.    FACT ISSUES EXIST PRECLUDING THE ISSUANCE OF A

      MOTION FOR SUMMARY JUDGMENT

      In order for a Movant, such as Comerica, to obtain a Summary Judgment

they must establish that no genuine issue of fact exists, justifying a "take-nothing"

judgment as a matter of law, by negating at least one of the key elements of each of

the claimant's theories of recovery. See Science Spectrum, Inc. v. Martinez, 941



                                          30
S.W.2d 910, 911 (Tex. 1997); Allen v. A & T Transp. Co. Inc., 79 S.W.3d 65, 68

(Tex. App.--Texarkana 2002, pet. denied); Jeter v. McGraw, 79 S.W.3d 211, 214

(Tex. App.--Beaumont 2002, pet. Denied. To prevail on a motion claiming

entitlement to summary judgment as a matter of law, the movant must offer

admissible evidence proving that no genuine issue of material fact exists and that

the movant is entitled to judgment as a matter of law on the issues expressly set out

in the motion. Tex. R. Civ. P. 166a(c). Such is not the case here. Evidence was

presented by DJ&S, not Comerica, that numerous fact issues exist which supported

DJ&S’s causes of actions.

      This Appeals Court analyzing the evidence must apply the same principles in

assessing the movant's entitlement to summary judgment. See In Matter of J.A.M.,

945 S.W.2d 320, 322 (Tex. App.--San Antonio 1997, no writ). Courts have stated

these principles include the following:

      (1) Any fact sought to be established (or negated) conclusively must be one

      ordinarily subject to absolute verification or denial. Matters such as intent,

      reliance, and reasonable care usually cannot be proved conclusively. See

      Bauer v. Jasso, 946 S.W.2d 552, 556 (Tex. App.--Corpus Christi 1997, no

      writ). Emphasis added.

      (2) Evidence favoring the non-movant will be taken as true, with

      reasonable inferences indulged and doubts resolved in the non-movant's



                                          31
      favor. See Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173

      (Tex. 1995), and Nixon v. Mr. Property Management Co., 690 S.W.2d 546,

      548-549 (Tex. 1985). Emphasis added.

      (3) Evidence favoring the movant will not be considered if it is

      controverted by the non-movant. See Robinson v. Chiarello, 806 S.W.2d

      304, 307 (Tex. App.--Fort Worth 1991, den.) Stated another way,

      uncontroverted evidence favoring the movant will be taken as true. See

      Casey v. Amarillo Hosp. Dist., 947 S.W.2d 301, 303-304 (Tex. App.--

      Amarillo 1997, den.). Emphasis added. This is the case here.

      The Texas Supreme Court has often said that caution should be used

when considering summary disposition of all or part of a litigant's cause of

action or defense. The Court has said that summary judgment procedure is not

intended to deprive litigants of their right to a full hearing on the merits of any

real issue of fact, if there is some doubt as to the facts, summary judgment

should not be rendered, despite the desire for prompt disposal of judicial

business. See In re Estate of Price, 375 S.W.2d 900, 904 (Tex. 1964); See e.g.,

Mariner Financial Group v. H.G. Bossley, 79 S.W.3d 30, 32-33 (Tex. 2002).

The Court has explained that summary judgment is not intended to be a trial by

depositions and affidavits, rather, it is a device to determine whether genuine




                                           32
issues exist for determination by the trier of fact. See Gaines v. Hamman, 163

Tex. 618, 358 S.W.2d 557, 563 (1962).

      Here, DJ&S showed that DJ&S was entitled to a commission or in the

alternative that genuine facts exist as to whether the contract between DJ&S

and Comerica was drafted by Comerica and was ambiguous. Further, DJ&S

showed that numerous genuine facts existed as to whether Comerica

committed fraud and negligent misrepresentation as well as DJ&S’s quantum

meriut claim so as to preclude Summary Judgment. Also, no evidence was

presented by Comerica or to rebut DJ&S assertion that DJ&S did not

know Comerica’s representations were false. Further, there is no

requirement under Texas law that Comerica had to benefit from DJ&S’s

services for DJ&S to prevail in a quantum meriut claim, only that Comerica

accepted the services.



                                        VI.

                                 CONCLUSION

      Based on the reasons and law set forth above, Appellant/Plaintiff DIERS,

JONES& STARK, INC. (DJ&S) requests the Judgments of the Trial Court be

reversed in all respects and that a judgment be rendered in Appellant/Plaintiff

DIERS, JONES& STARK, INC. (DJ&S) favor and the case be remanded back to



                                         33
the District Court for a determination of attorney’s fees to be awarded DJ&S, if

any, or in the alternative, that this entire case be remanded for a trial on the merits.




                                                Respectfully submitted,


                                                S/John C. Cunningham__
                                                John C. Cunningham
                                                Counselor at Law
                                                State Bar No.05240150
                                                5116 Bissonnet #367
                                                Bellaire, Texas 77401
                                                (713) 218-8985 Office
                                                (713) 218-8255 Facsimile
                                                       (713) 703-1552 Cellular
                                                Email: cunningj1@comcast.net
                                                COUNSEL FOR APPELLANT
                                                DIERS, JONES & STARK, INC.


                           CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the above and foregoing
instrument and the clerk’s record were served in compliance with the Texas Rules
of Appellant Procedure on this 11th day of June 2015.

Scott Hayes                                           Via email and overnight
Vincent, Serifino, Lopez, & Jenevein                  mail
1601 Elm Street
Suite 4100


                                           34
Dallas, Texas, 75201



                            S/ John C. Cunningham______
                            John C. Cunningham




                       35
