law-negligent-misrepresentation | fraudulent concealment | fraud | fraudulent inducement |
waiver of reliance through as-is provision in contract |
To prevail on a fraud claim, the plaintiff must show “a material misrepresentation,
which was false, and which was either known to be false when made or was
asserted without knowledge of its truth, which was intended to be acted
upon, which was relied upon, and which caused injury.” Formosa Plastics
Corp. USA v. Presidio Eng'rs & Contractors, Inc., 960 S.W.2d 41, 47
(Tex. 1998) (quoting Sears, Roebuck & Co. v. Meadows, 877 S.W.2d 281,
282 (Tex. 1994)). Elements of a negligent misrepresentation claim are:
(1) the representation is made by a defendant in the course of his
business, or in a transaction in which he has a pecuniary interest; (2)
the defendant supplies “false information” for the guidance of others in
their business; (3) the defendant did not exercise reasonable care or
competence in obtaining or communicating the information; and (4) the
plaintiff suffers pecuniary loss by justifiably relying on the
representation. McCamish, Martin, Brown & Loeffler v. F.E. Appling
Interests, 991 S.W.2d 787, 791 (Tex. 1999).
NEGLIGENT MISREPRESENTATION
To prevail on a negligent misrepresentation claim, a plaintiff must show (1) the representation in
question was made by the defendant in the course of his business or in a transaction in which
he had a pecuniary interest, (2) the defendant supplied false information for the guidance of
others in their business, (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. Fed. Land Bank Ass'n of Tyler v. Shane, 825 S.W.2d
439, 442 (Tex. 1991); see also Roof Sys., Inc. v. Johns Manville Corp., 130 S.W.3d 430, 439
(Tex. App.-Houston [14th Dist.] 2004, no pet.) ("The `false information' contemplated in a
negligent misrepresentation case is a misstatement of existing fact, not a promise of future
conduct.").
To prevail on a negligent misrepresentation claim, a plaintiff must show (1) the representation in
question was made by the defendant in the course of his business or in a transaction in which
he had a pecuniary interest, (2) the defendant supplied false information for the guidance of
others in their business, (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. Fed. Land Bank Ass'n of Tyler v. Shane, 825 S.W.2d
439, 442 (Tex. 1991); see also Roof Sys., Inc. v. Johns Manville Corp., 130 S.W.3d 430, 439
(Tex. App.-Houston [14th Dist.] 2004, no pet.) ("The `false information' contemplated in a
negligent misrepresentation case is a misstatement of existing fact, not a promise of future
conduct.").
To prevail in a cause of action for fraud, one must provide sufficient evidence of the elements of
fraud, which are (1) a material misrepresentation was made; (2) it was false; (3) when the
representation was made, the speaker knew it was false or the statement was recklessly
asserted without any knowledge of its truth; (4) the speaker made the false representation with
the intent that it be acted on by the other party; (5) the other party acted in reliance on the
misrepresentation; and (6) the party suffered injury as a result. Taylor Elec. Servs., Inc. v.
Armstrong Elec. Supply Co., 167 S.W.3d 522, 526 (Tex. App.-Fort Worth 2005, no pet.) (citing
DeSantis v. Wackenhut Corp., 793 S.W.2d 670, 688 (Tex. 1990)); see Grant Thornton LLP v.
Prospect High Income Fund, 314 S.W.3d 913, 921 (Tex. 2010).
A promise to do an act in the future is actionable fraud when made with the intention, design
and purpose of deceiving, and with no intention of performing the act. Spoljaric v. Percival
Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986). While a party's intent is determined at the time
the party made the representation, it may be inferred from the party's subsequent acts after the
representation is made. Id. Failure to perform, standing alone, is no evidence of the promissor's
intent not to perform when the promise was made. Id. at 435. However, that fact is a
circumstance to be considered with other facts to establish intent. Id. Since intent to defraud is
not susceptible to direct proof, it invariably must be proven by circumstantial evidence. Id.
"`Slight circumstantial evidence of fraud,' when considered with the breach of promise to
perform, is sufficient to support a finding of fraudulent intent." Id. (quoting Maulding v. Niemeyer,
241 S.W.2d 733, 738 (Tex. Civ. App.-El Paso 1951, orig. proceeding)).
09-0391
CARROLL GRANT v. LAUGHLIN ENVIRONMENTAL, INC.; from Harris County;
1st district (01-07-00227-CV, ___ SW3d ___, 12-18-08, pet. denied July 2009)
(summary judgment evidence, conclusory affidavit, breach of contract, quantum meruit, fraud,
negligent misrepresentation)
08-0784
FOXWORTH-GALBRAITH LUMBER COMPANY v. ROBERT PAVELKA AND DENA PAVELKA;
from McLennan County; 10th district (10-07-00246-CV, ___ SW3d ___, 08-06-08)
Robert and Dena Pavelka filed suit against Foxworth-Galbraith Lumber Co. alleging that
Foxworth-Galbraith had supplied them lumber which was infested with powderpost beetles. The
Pavelka alleged claims for breach of contract, negligent misrepresentation, breach of warranty,
and DTPA violations.
Robert and Dena Pavelka filed suit against Foxworth-Galbraith Lumber Co. alleging that
Foxworth-Galbraith had supplied them lumber which was infested with powderpost beetles.
Also see:
Texas Causes of Action and Defenses | 2011 Texas Supreme Court Opinions | 2011 Tex Sup Ct Per Curiams
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