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CAUSE NO, 12-12-13135-CV
DUANE SCOTT OLIVER and JEANETTE LEE 8 IN THE DISTRICT COURT
OLIVER, INDIVIDUALLY AND d/b/a §
CREEK WOOD SHOOTING SPORTS § 284" JUDICIAL DISTRICT
Vv. §
VANCE MANNING § MONTGOMERY COUNTY, TEXAS
VANCE MANNING’S RESPONSE TO “PLAINTIFFS’ MOTION FOR PARTIAL
SUMMARY JUDGMENT OF LIABILITY AGAINST DEFENDANT VANCE MANNING
ON LIABILITY FOR STATUTORY FRAUD AND BREACH OF CONTRACT”
‘TO THE HONORABLE CARA WOOD:
VANCE MANNING files this Response, and, in support, shows this Court as follows:
OVERVIEW
Mr. Manning asks this Court to take judicial notice of his pleading (his First Amended
Answer), and, more specifically, thagt he has alleged the affirmative defense of limitations. That
matters in the context of this Motion for Partial Summary Judgment as to liability (‘Motion’)
because unless Plaintiffs disprove each element of his affirmative defense, they cannot get summary
judgment. They fail to so much as mention his affirmative defense, however, such that the Court
must deny the Motion.
STATEMENT OF FACTS
While Mr. Manning takes no real issue with Plaintiffs’ statement of facts as to the heart of
these transactions, he does take issue with the argumentative comments which they characterize as
“facts”, Mr. Manning agrees that he contracted to sell the subject real estate, that Plaintiffs were the
purchasers, that the contract required him to provide an easement for ingress and egress of “at least
30 feet (+/-)”, that the contract states that Plaintiffs “require[]} sign rights”, that the contract gives
Plaintiffs the “right to retain the current sign” and the “right to place a sign at this location
Vance Manning's Response to Plaintiff? Motion for Partial Summary Judgment Page I of 19
permanently”, and that he did not own the land on which the easement and sign would be located,
although his mother’s company (Vanceco, Inc.) does. See Motion at 2-3 1-4. Plaintiffs discuss
why the easement and sign were important to them (points about which Mr. Manning has no dispute)
(see Motion at 3-4 4-6 and 5-7 49-15), and then Jaunch into a diatribe about Mr. Manning’s
failure to perform the easement/sign promises - it is zhere that Mr. Manning takes issuc.
The heart of Plaintiffs’ complaint is that, they say, Mr. Manning’s easement and sign
representations were made with Mr. Manning knowing that “he had no legal ability to convey” the
easement and sign rights (id, at 4-5 497-8 and 5 48, 5-6 {[11), and that when he did provide the
easement “through Ginger Manning” (bis mother) it “fell over eight (8) feet short in width at the
entrance near Highway 105, and over fourteen (14) feet short...at the entrance to the Creekwood
business” (id. at 6 $12). These complaints are not “facts”, however, for three key reasons which
provide ample justification for the Court to deny the Motion.
1 Vance Manning Had The Legal Ability To Convey The Requested Items:
Although Mr. Manning did not own the land on which the easement or sign would be placed,
that does not mean, as Plaintiffs say, that “he had no legal ability to convey” those items. In fact,
when Plaintifis admit that they got their casement (id. at 6 412), they necessarily admit that Vance
Manning had the ability to get the easement conveyed given that he did get the easement conveyed.
Not to mention that, as discussed at “Statement of Facts” (3), infra, at the time of closing there was
already a 47.15 - 50 foot wide easement, a sign, and an expressed willingness to complete the
agreement-to-agree as to a new sign. Indeed, Plaintiffs’ own summary judgment evidence shows
these facts — or it would have if Plaintiffs provided the entirety of Mr. Manning’s responses to the
Court instead of using selective editing.
Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 2 of 19
Plaintiffs’ Exhibit 7 is excerpts from Mr, Manning’s discovery responses; Plaintiffs do not
include in their excerpts, however, Mr. Manning’s responses to their Discovery Requests 3 and 4.
Under the Rule of Optional Completeness, Mr. Manning offers the entirety of his responses —
marked as Exhibit 7-a, to be used as a supplement to Plaintiffs’ Exhibit 7. See Exhibit 7-a, “Vance
Manning’s Responses to Plaintiff Duane Scott Oliver’s First Discovery Requests to Defendant”,
attached and incorporated by reference as though set out fully herein.
In his responses to Discovery Requests 3 and 4 (those being Requests for Admissions), Mr.
Manning admits that he both discussed the easement and sign issues with Ginger Manning before
closing, and that he got her agreement to provide those things to Plaintiffs. See Exhibit 7-a at 4
(responses to requests 3-4); see also Affidavit of Ginger Manning (“Ginger Manning Affidavit”),
attached and incorporated by reference as though set out fully herein. So, even though he did not
own the land for the easement or sign, he did have the legal ability to convey those items, having
acquired that ability from the owner ~ Vanceco, Inc., a company owned by his mother, Ginger
Manning. Jbid. Thus, the claims related to Vance Manning misrepresenting his legal ability to
convey the easement and sign are without merit — he didn’t own the land, but he never said he did,
and he did have the legal ability to get Plaintiffs what they wanted.
2. Per the Contract, the Easement Is of Unspecified Size and the Sign Rights Are “To Be
Determined” Later:
As for the easement, Plaintiffs acknowledge that they got an easement, but that the size was
“short” what was promised (see Motion at 6 12), which is a difficult position for them to maintain
given that the easement’s dimensions are subject to a “+/-” variation. The size is not sct in stone,
despite Plaintiffs’ claim that it is. They complain that the casement is 8 feet short near Highway 105
and 14 feet shori near the building (id), but the Contract says the easement size is “at least 30 feet
Vance Manning's Response te Plaintiffs’ Motion for Partial Summary Judgment Page 3 of 19
(+/-)”. See Plaintiffs’ Exhibit 1 at CRO44, So what is the measurement? At least 30 feet plus or
minus is hardly a precise mathematical figure. Plaintiffs say that the easement is 8 feet short near
Highway 105, which, if the Court assumes a 30 foot wide easement, would make ihe casement 22
feet wide; 22 feet wide is +/- 30 feet and sufficient for the easement’s purpose, that being “ingress
and egress”. Compare Motion at 6 12 ¢o Plaintifls’ Exhibit 1 at CR044 44. They also say that the
easement is 14 feet short near Highway 105, which, if the Court assumes a 30 foot wide easement,
would make the easement 16 feet wide; 16 feet wide is +/- 30 feet and sufficient for the easement’s
purpose, that being “ingress and egress”. Compare Motion at 6 {12 to Plaintiffs’ Exhibit 1 at CR044
A.
The Contract is decidedly vague about the specifics of the sign as well. It says Plaintiffs
“require[| sign rights”, which says nothing about any promise to give sign rights or what those sign
rights are. See Plaintiffs’ Exhibit 1 at CR044 49. The contract even recites, “Size and orientation
to be determined....Not to exceed 4°x8°.” Jd. As discussed below, this is nothing more than an
agreement to agree, and is not a contract at all.
Paragraph 10 gives Plaintiffs the right to “retain the current sign at the rear Northeast corner
of the office building” and the “right to place a sign at this location permanently”. See Plaintiffs’
Exhibit 1 at CR044 410. That provision is sort of specific, although there is no way to look at the
contract and know anything about the precise location of that sign, its dimensions, or its appearance.
But, realistically, nowhere in Plaintiffs’ pleadings do they complain about this provision, other than
to say that they did not get sign rights generally. But they certainly do not claim that Mr, Manning
removed the sign from that location, or that it was subsequently removed with Plaintiffs being told
that they could have no sign at that location — because neither thing ever happened. See Ginger
Vance Manning’s Response to Plaintiff? Motion for Partial Summary Judgment Page 4 of 19
Manning Affidavit. It is a red herring to include this contractual provision in the Motion because
the Motion is devoid of either evidence or argument that this provision remains unfulfilled.
3 Plaintiffs Got Sign Rights and An Ingress/Egress Easement:
As for the casement, Plaintiffs’ complaint has always been unfounded. The easement is, and
has always been, part of an unpaved road that provides access to the gun club from a recorded
Permanent Access Easement (see plat recorded at Cabinet Z, Sheet 1673, Clerk’s File Number
2009074588). See Exhibit 7-a at 4 (xesponse to request 5); see also Exhibit A, certified copy of Plat
2009074588, attached and incorporated by reference as though set out fully herein; Ginger Manning
Affidavit. Itis publicly dedicated as an unrecorded casement, and Vanceco, Inc., prior to December
31, 2008, agreed to sign an instrument granting Plaintiffs use of this easement in recordable form.
Ibid. Vanceco, Inc. recorded an instrument at Clerk’s File Number 2011084035 confirming the
location of the easement across land it owned and which has been used for years to access the gun
club. Jbid.; see also Exbibit B, certified copy of Easement 2011084035, attached and incorporated
by reference as though set out fully herein. The easement across Vanceco, Inc.’s land provides access
to the permanent access easement provided in that plat recorded at Plat Cabinet Z, Sheet 1673
(Clerk’s File Number 2009074588) that is publicly dedicated. Jbid. And, in fact, that access
easement is 50 feet wide at the entrance from Highway 105, and 47.15 feet wide at the entrance to
Plaintiffs’ business (see Exhibit A), which is certainly “30 feet (+/-)” (see Plaintiffs’ Exhibit 1 at
CRO044).
As to the sign, although the sign provisions are vague, Vanceco, Inc. agreed that Plaintiffs
could have a sign location prior to December 31, 2008 and has been willing to grant them a sign
location at all times since then. See Exhibit 7-a at 4 (response to request 5); Affidavit of Ginger
Vance Manning's Response to Plaintiff’ Motion for Partial Summary Judgment Page 5 of 19
Manning (“Ginger Manning Affidavit”), attached and incorporated by reference as though set out
fully herein. Ginger Manning, Vanceco, Inc.’s president, even met with Plaintiffs about the sign
jocation, but they refused to provide her with any plans, contending that she would be unable to
understand them. /bid. But when the agreement says nothing more than Plaintiffs “require[] sign
rights at the entrance to the Creckwood complex at Hwy 105W (Size and orientation to be
determined), Not to exceed 4°x8’” (see Plaintiffs’ Exhibit 1 at CRO44 49), and Ginger Manning
wants to see the plans for the sign before allowing Plaintiffs to erect it, a request Plaintiffs refused,
how can they possibility complain about a breach. They have nothing more than an unenforceable
agreement to agree, but Ginger Manning has always been willing to make it into a firm agreement,
which is more than the law requires. Jbid.
As for the current sign and Plaintiffs’ right to continue to use it, Plaintiffs have that sign and
those sign rights. See Exhibit 7-a at 4 (response to request 5); Ginger Manning Affidavit. As noted
above, they raise no complaint and present no evidence to suggest, much less conclusively prove,
that anyone removed that sign and denied Plaintiffs the right to erect one in its stead.
Mr. Manning did everything that he was supposed to do.
DISCUSSION
Summary judgment is proper only when the movant demonstrates that there is no genuine
issue as to any material fact such that he is entitled to judgment as a matter of law. TEX. R. Civ. P.
166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 8.W.3d 211, 215-16 (Tex. 2003); Nixon
vy. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is
a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant
must be taken as true, and every reasonable inference must be indulged in favor of the non-movant,
Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 6 of 19
with all doubts resolved in his favor. Valence Operating Co, v. Dorsett, 164 $.W.3d 656,661 (Tex.
2005); Nixon, 690 S.W.2d at 548-49.
I VANCE MANNING HAS NOT BREACHED HIS CONTRACT, OR, AT LEAST,
THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER HE HAS.
Plaintiffs list the elements of a breach of contract claim, then go through each, telling the
Court that the evidence is conclusive as to each. Au contraire.
A Element 1: There Is No Longer A Contract On Which Plaintiffs May Recover
Under the Merger Doctrine, and the Easement/Sign Provisions Are
Unenforceable Agreements-To-Agree.
Merger Doctrine: Mr. Manning agrees that he had a contract with Plaintiffs, but legally
the contract is no more, Where a deed has been executed and accepted as performance on an earnest
money contract to convey real estate, all rights and duties created by an earnest money contract are
merged into the deed when the seller delivers and the buyer accepts the deed. See CommercialBank,
Unincorporated y. Satterwhite, 413 S.W.2d 905, 909 (Tex. 1967); Perry v. Stewart Title Co., 756
F.2d 1197, 1205 (5" Cir, 1985). The Supreme Court described the merger doctrine as follows:
When a deed is delivered and accepted as performance of a contract to convey, the
contract is merged in the deed. Though the terms of the deed may vary from those
contained in the contract, still the deed must be looked to alone to determine the
rights of the parties.
Alvarado y. Bolton, 749 S$. W.2d 47, 48 (Tex. 1988) (quoting Buker v. Baker,207 S.W.2d 244, 249
(Tex. Civ. App. — San Antonio 1947, writ refd n.r.e.) (quoting 2 Robert T. Devlin, A TREATISE ON
THE LAW OF DEEDS §850a (2d ed. 1897))); see also Givens v. Ward, 272 S.W.3d 63, 68 (Tex. App.
~ Waco 2008, no pet.). Plaintiffs admit that the promises at issue were made before the deal closed
-~ and even attach the contract to their Petition ~ and they admit that they closed the deal on pages
2-3 of their Petition, as well as in their Motion. See Motion at 2-3 491-3, 5 99. And the promises
Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 7 of 19
at issue are quoted in the Petition, and are promises related to the conveyance itself ~ ie., that
Plaintiffs will have an easement and rights to place a sign on the property once purchased, fd. at 3-4
43-6. For that reason, there are no separate promises which survive the closing; these promises are
merged into the deed, leaving no breach of contract cause of action related to them.!
Plaintiffs claim to the contrary. They say that the easement/sign issue was separate and apart
from the deed because they were not part of the land being purchased, and because they were to be
provided “[s]eparate and apart from the deed of land.” Jd. at 4 6 and 5 §9. But while the casement
was not part of the land being sold, the easement was part of the contract, with a statement that the
easement would be provided “at closing”. See Plaintiffs’ Exhibit 1 at CR044 4. In other words,
it might not have been part of the land, but it was part of what was to be conveyed at closing. If it
was not provided at closing as Plaintiffs contend, then their willingness to close without it
extinguishes that contractual obligation. Or, at least, it creates a genuine issue of material fact as to
whether it was such a separate part that they could close on the land sans easement and still retain
the contractual right to get the easement. Either way, summary judgment for Plaintiffs is
inappropriate because the evidence is not conclusive and does not eliminate any genuine issue as to
the material fact of whether Plaintiffs have a contract on which they may sue.
Agreement-To-Agree: When a contract plans for some vague performance to occur
! Although the doctrine of merger does not operate to bar claims of fraud in transactions leading up to the deed
(Alvarado, 749 SW 2d at 48 (“we hold that the doctrine of merger may not be applied to defeat a cause of action under
the DTPA for breach of an express warranty made in an earnest money contract and breached by deed”)); see also
CommercialBank of Mason y. Satterwhite, 413 8.W.2d 905, 909(Tex, 1967); Muncwar v. Cadle Co., 2 8.W.3d 12, 17
(Tex. App. — Corpus Christi 1999, pet. denied), it does bar claims for breach of contract related to contractual
obligations about the conveyance of the property. Harris v. Rowe,593 S.W.2d 303, 307 (Tex. 1979); see also
Sanchez v. Dickinson, 551 S.W.2d 481, 486 (Tex. Civ. App. — San Antonio 1977, no writ) (holding merger doctrine did
not destroy right of first refusal from contract); Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818, 823 (Tex.
Civ. App. — Dallas 1962, writ ref’d n.r.e.) (holding that agreement to furnish title policy was not superseded by deed).
Thus, even if the doctrine is inapplicable to the fraud claims, it does have an effect as to the breach of contract claim on
which Plaintiffs seek summary judgment.
Vance Manning's Response to Plaintiffs’ Motion for Partial Sammary Judgment Page8 of 19
in the future, then it is nothing more than an unenforceable agreement to agree:
[A]n agreement io make a future contract is enforceable only if it is “specific as to
all essential terms, and no terms of the proposed agreement may be left to future
negotiations.” It is well settled law that when an agreement leaves material
matters open for future adjustment and agreement that never occur, it is not
binding upon the parties and merely constitutes an agreement to agree.’
Fort Worth Independent School Dist. v. City of Fort Worth, 22 8.W.3d 831, 846 (Tex. 2000)
(emphasis supplied); see also Pine v, Gibraltar Sav. Ass'n, 519 S.W.2d 238, 243-44 (Tex. Civ. App.
~ Houston [1 Dist.] 1974, writ ref'd n..e.). Neither the jury nor the Court may supply essential
terms that the parties did not agree upon because, for an agreement to be legally binding, the
contract’s terms must be sufficiently definite to cnable the Court to understand what the promisor
undertook. Fort Worth Indep. Sch. Dist., 22 8.W.3d at 846; 7.0. Stanley Boot Co. v. Bank of El
Paso, 847 S.W.2d 218, 221 (Tex. 1992). Ifthe court is unable to determine the parties’ rights, then
there is no enforceable contract. See Searcy v. DDA, Inc., 201 S.W.3d 319, 322 (Tex. App. -
Dallas 2006, no pet.); Estate of Eherling v. Fair, 546 $.W.2d 329, 335 (Tex. Civ. App. ~ Dallas
1976, writ ref"d n.t.e.); see also T. O. Stanley Boot Co., 847 §.W.2d at 221 (no binding contract if
an essential term is left open for future negotiation; before a court can enforce the contract, the
* The Court cites in footnotes the following cases:
Foster v. Wagner, 343 $8, W.2d 914, 920-21 (Tex. Civ. App. ~ El Paso 196], writref'd n.re.}. Accord
Tenneco, 917 S.W.2d at 830-31; Texas State Opticalv. Caylor, 387 8.W.2d 461, 464 (Tex. Civ. App.
~ Beaumont 1965, writ ref'd ».r.¢.).
> ‘The Court cites in footnotes the fallowing cases:
Pine v, Gibraltar Sav. Ass'n, 519 S.W.2d 238, 244 (Tex. Civ, App. ~— Houston [1" Dist.] 1974, writ
ref’d n.x.e,) (citing O'Neil v. Powell, 470 S.W.2d 775, 779 (Tex. Civ. App. ~ Fort Worth 197], writ
ref'd mr ); Gasperson v. Madill Nat’l Bank, 455 8.W.2d 381, 387 (Tex. Civ. App. ~ Fort Worth
1970, writ ref'd n.t.e.)). See also Central Texas Micrographies v. Leal, 908 8.W.2d 292, 297 (Tex.
App. - San Antonio 1995, no writ) (“[T]he general rule is that no enforceable contract exists ‘where
the agreement of the parties leaves an essential term for later determination and it is never
determined.” (quoting Mooney v. Ingram, 547 S.W.2d 314, 317 (Tex. Civ. App. ~ Dallas 1977, writ
ref'd n.r.e.) (emphasis added)).
Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page
9 of 19
parties must agree to the contract’s material terms).
When a contract leaves open material terms, then it is unenforceable as a matter of law:
In general, a contract is legally binding only if its terms are sufficiently definite to
enable a court to understand the parties’ obligations! “The rules regarding
indefiniteness of material terms of a contract are based on the concept that a party
cannot accept an offer so as to form a contract unless the terms of that contract are
reasonably certain. 8
Fort Worth Independent School Dist., 22 8.W.3d at 846. No one can be charged with accepting an
offer unless the terms of the contract are reasonably certain. Jd; RESTATEMENT (SECOND) OF
CONTRACTS §33(1) (1981); Ski River Development, Inc. v. MeCalla, 167 8.W.3d 121, 133 (Tex.
App. ~ Waco 2005, pet. denied). In fact, no trial court has authority to ask the fact finder to supply
an essential contract term that the parties did not complete by mutual agreement. COC Servs., Ltd.
v. CompUSA, Inc., 150 8.W.3d 654, 664 (Tex. App. — Dallas 2004, pet. denied). “Fatal
indefiniteness in an agreement may concern the time of performance, the price to be paid, the work
to be done, the service to be rendered or the property to be transferred.” /d. This Contract suffers
from “fatal indefiniteness” as to both the easement (as to its dimensions and precise placement) and
the sign.
The Contract recites that the easement is to be “recorded (or recordable)” and must be an
“ingress and egress easement from subject property [whatever that is] to State Highway 105 [which
is a long road, making the lack of a precise location troublesome]”. See Plaintiffs’ Exhibit 1 at
CR044 44. The location is made slightly more precise in the next sentence requiring that the
easement “begin[] mear the southeast corner of subject property and continuing uninterrupted to
4 Citing 7. O. Stanley Boot Co, v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex, 1992).
5 Citing Texas Oil Co. v. Tenneco Inc., 917 §.W.2d 826, 830 (Tex. App. ~ Houston [14" Dist.] 1994) (citing
RESTATEMENT (SECOND) OF CONTRACTS §33(1) (1981)), rev'd on other grounds, 958 8.W.2d 178 (Tex. 1997).
Vance Manning's Response to Plaintiffs’ Motion for Partial Summary Judgment Page 10 of 19
State Highway 105.” /d Further, the easement “shall be at least 30 feet (+/-).” Jd So vagaries
aside, an easement which fulfills the Contract would be (1) “recorded (or recordable)”, (2) for
purposes of “ingress and egress”, (3) traveling from “near the southeast corner...to State Highway
105”, and (4) “at least 30 feet (+/-)” wide throughout. Id.
Plaintiffs say the easement they got does not comply because they say it is 8 feet short near
Highway 105 and 14 feet short near the building (see Motion at 6 12), but the Contract does not
require a particular easement size in either length or width. See Plaintiffs’ Exhibit 1 at CR044 44.
And there is no question as to what the Contract actually says, this easement complies. (1) It is both
“recorded” and “recordable”. See Exhibits A and B; Ginger Manning Affidavit. (2) It is designed
per the real property records for “ingress and egress”. Ibid. (3) It wavels from “near the southeast
corner...to State Highway 105”. Ibid. (4) It is “at least 30 feet (+/-)” wide throughout; in fact, it
starts “near the southeast corner” at a width of 47.15 fect, and increases in its width in its path to
Highway 105 to end at 50 feet. Ibid. Really, even if it was only 1 foot wide throughout, that would
not violate the “+/-” provision, though it might be a problem for ingress and egress. So, basically,
if itis sufficiently wide for ingress and egress, it complies — and this one is sufficient for ingress and
egress, as best proved by the fact that it has been used for that purpose for years, even before
Plaintiffs came along. See Ginger Manning Affidavit. Plaintiffs want to complain about the
dimensions of the easement, but cannot do so without inviting the Court and/or the jury to fill in a
precise dimension which does not appear in the Contract. This they cannot do.
As for the sign, the Contract recites that the new sign was contemplated because “Buyer
requires sign rights at the entrance to the Creekwood complex at Mwy 105W.” See Plaintiffs’
Exhibit 1 at CRO44 49. With no better description of location than that, it is unclear where this sign
Vance Manning's Response to Plaintiffs’ Motion for Partial Summary Judgment Page 11 of 19
is to be placed. More than that, this is not a contractual obligation — it is, instead, a statement of
what Plaintiffs “require”, with no description of how to fulfill this requirement.
‘The only portion of the Contract which comes close is the next provision, which recites,
“(Size and orientation [of the sign] to be determined). Not to exceed 4’x8’.” Jd. So when the
particulars of the sign are “to be determined”, this provision is nothing more than an agreement to
agree — and no one has agreed yet. It is unenforceable. Ginger Manning has engaged in good faith
discussions with Plaintiff's about placing this sign (see Ginger Manning Affidavit), and even that is
more than the Contract requires. Point in fact, the Contract requires nothing. It says only that
Plaintiffs “require[] a sign”, a general description of the vicinity, with the particulars “to be
determined.” See Plaintiffs’ Exhibit 1 at CRO44 49. Neither the Court nor the jury may fill in the
missing terms to make this unenforceable provision enforceable, which is why summary judgment
in favor of Plaintiffs on this unenforceable contractual provision would be error.
B. Element 2: Plaintiffs Do Not Have Standing To Sue for Breach of Contract
Given that There Is No Longer A Contract On Which Plaintiffs May Recover
Under the Merger Doctrine.
For the reasons discussed in (1)(A), supra, there is no contract on which Plaintiffs may sue,
it having been merged into the documents they obtained and accepted at closing.
Cc. Element 3: Plaintiffs Performed.
Mr. Manning agrees that Plaintiffs performed under the Contract, though that fact is
meaningless given that the Contract was extinguished at closing (see Discussion at (I)(A), supra),
and the sign provisions are altogether unenforceable (id. at (B), supra).
D. Element 4: Mr. Manning Did Not Breach the Contract.
Assuming arguendo that Plaintiffs have a contract on which they may sue, Mr. Manning
Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 12 of 19
performed his obligations under it. The only obligations Plaintiffs cite are those related to the
easement and the sign. Their complaint is only that Mr. Manning knew about these recitations in
the Contract and knew that he “did not own the land necessary for him to convey those rights.” See
Motion at 9 23. But he does not have to own that land in order to be able to convey those rights;
this argument means nothing more than that Mr. Manning could not personally sign an easement and
could not personally permit the sign rights, but that doesn’t mean he couldn’t fulfill these terms
at the time of contracting. In fact, he makes no representations that he owns the land in the
Contract, and his lack-of-ownership does not translate into meaning that he could not fulfill those
conveyances because, in fact, he did. is mother owned the company that owned the land necessary
to convey those rights, and his mother not only said she would do it, she did it, See Ginger Manning
Affidavit.
Plaintiffs say she didn’t. See Motion at 9-10 423. The real property records say to the
contrary. See Exhibits A and B; see also Ginger Manning Affidavit. Plaintiffs always had an access
easement through a public dedication of the land in dimensions sufficient to fulfill the contractual
terms (they, themselves, being vague), and they got an casement as to their portion when they
complained. See Ginger Maming Affidavit. They got the casement.
They also got sign rights. They still have the right to use the sign that was formerly in place,
and they have the right to place a new sign with “[s]ize and orientation to be determined.” See
Ginger Manning Affidavit; Plaintiffs’ Exhibit 1 at CRO44. It has not been determined yet, but that
is not a breach and that is not actionable. They have an agreement to agree, and a party (Ginger
Manning) willing to reach an agreement with them. See Ginger Manning Affidavit. They should
make their agreement with her as the Contract contemplated, but they should not sue Mr. Manning
Vance Manning's Response to Plaintiffs’ Motion for Partial Summary Judgment Page 13 of 19
for their failure to do what the Contract contemplates ~- reach a subsequent agreement as to their sign.
gE Element 5: Plaintiffs Have No Damages; Even If They Are Harmed, Their
Injuries Are Not “Damages” Because They Cannot Stem From A Breach of
Contract, There Having Been None.
Complaining that they have suffered because of the claimed lack of easement/sign is not the
same as tying that to any act of wrongdoing by Mr. Manning. Plaintiff's explain that their damages
are unliquidated and not part of their Motion. See Motion at 12 428. Mr. Manning will, therefore,
offer no evidence to refute the claimed damages, but will, instead, rest on his argument that because
there is no actionable breach of contract claim, whatever harm has befallen Plaintiffs, if any, is of
no consequence to the Court.
IL. VANCE MANNING HAS NOT ENGAGED IN STATUTORY FRAUD, OR, AT
LEAST, THERE ARE GENUINE ISSUES OF MATERIAL FACTS AS TO
WHETHER HE IS LIABLE ON THIS CAUSE OF ACTION.
Plaintiffs list the elements of Statutory Real Estate Fraud, then go through each one at a time.
See Motion at 12-16. Mr. Manning will follow suit.
A Element 1: The Transaction Inyolves Real Estate.
This element is conclusive — the case involves a real estate transaction, But that is the only
element which Plaintiffs can prove conclusively...or at all.
B. Vance Manning Made No False Representations of Fact Or Promises To Induce
the Sale.
Plaintiffs’ position here again relates to the casement/sign issues. See Motion at 13-14 §9}32-
33. They focus on the notion that “Mr, Manning’s knowing lack of any legal authority or ability to
convey the easement and signage rights was ‘material’ to inducing Plaintiffs to enter into the
contract.” Jd. at §33. What they seem to mean to say is that the easement/sign issues were material
to Plaintiffs in deciding to purchase the land, and that Mr. Manning promised those items, knowing
Vance Manning’s Response to Plaintiffs’ Motion for Partiat Summary Judgment Page 14 of 19
he lacked the legal authority/ability to fulfill those expectations. As the discussion above makes
plain:
1 Plaintiffs’ interest in the easement was fulfilled by a (1) “recorded (or recordable)” casement,
(2) made for purposes of “ingress and egress”, (3) traveling from “near the southeast
corner...to State Highway 105”, and (4) “at least 30 feet (+/-)” wide throughout. See
Plaintiffs’ Exhibit 1 at CR044 4; Exhibit A; Exhibit B.
Plaintiffs’ sign interest is an unenforceable agreement-to-agree (see Discussion at (I)(B),
supra), but is fulfilled by Ginger Manning’s willing discussions with Plaintiffs to get them
the sign as per the “to be determined” portion of the Contract. See Ginger Manning
Affidavit; Plaintiffs’ Exhibit 1 at CRO44 49.
Plaintiffs have use of the old sign as per the Contract (see Ginger Manning Affidavit;
Plaintiffs’ Exhibit 1 at CRO44 §10), and Plaintiffs offer no evidence to the contrary.
Jn fact, the only thing that Plaintiffs prove conclusively is that Vance Manning did not own
the land on which the easement and sign would be located, but that is a red herring because he never
made any representation to the contrary. See Ginger Manning Affidavit. Plaintiffs offer no
evidence that he did, nor could they ~ because he didn’t. /d. Plaintiffs error is that they equate his
lack of ownership with a lack of authority, but the two do not equate. Mr. Manning knew that his
mother (whose company owned the land) would permit those two items so that he could fulfill
promises as to them, so he had the authority to make the promises and he did so expecting them to
be fulfilled. See Ginger Manning Affidavit. That is to say, he did not make a promise with the
present intention of not fulfilling it as is required for promissory fraud. See Formosa Plastics Corp.
USA y. Presidiokng’s & Contractors, Inc., 960 S.W.2d 41, 47(Tex. 1998). Instead, he made
promises that he knew he would fulfill, a/beit through his mother (see Ginger Manning Affidavit),
and that were fulfilled though his mother (see Ginger Manning Affidavit, Exhibits A and B). And
without fraudulent intent, there is no claim for fraud. See Barnett v. Barnett,67 8.W.3d 107, 126
(Tex. 2001) (in traditional or actual fraud, there must be fraudulent intent).
Vance Manning's Response to Plaintiffs’ Motion for Partial Summary Judgment Page 15 of 19
Unless Plaintiffs are able to present proof that he said something that he knew was untrue,
they have no fraud claim. All they can prove is that he made promises which could only be fulfilled
through actions by a third-party, but that doesn’t mean that Mr. Manning would not get the promises
fulfilled, especially when the third-party is his mother. Mr. Manning’s intent is the key to this
fraudulent inducement claim, and his testimony that he intended to fulfill these contractual terms
through his mother’s actions (see Ginger Manning Affidavit), coupled with the fact that she did
fulfill them (see Ginger Manning Affidavit; Exhibit A; Exhibit B), means that there is a genuine
issue as to the material facts (1) of Mr. Manning’s intentions, and (2) of whether Mr. Manning said
anything that was false.
Cc Element 3: Mr. Manning Said Nothing False, Such that He Did Not Engage in
Fraudulent Inducement.
This clement pertains to Mr. Manning’s motives in saying something false -- that is, he said
it in order to induce Plaintiffs to contract with him. But he said nothing false and has no intention
of saying something false to trick Plaintiffs into contracting with him. See Discussion at (I)(B),
supra. Consequently, there exist genuine issues as to the material facts of whether Mr. Manning was
making false representations in order to induce the Contract.
D. Element 4: Plaintiffs Reliance Was Not Reasonable As to the Sign, and Was
Not Misplaced As to the Easement.
Plaintiffs wax eloquent about how important the easement and sign were to them in
purchasing this property (see Motion at 14-15 437), which actually misses the mark. The reason it
does is because their reliance on the agreement-to-agree as to the sign is hardly justified
(see Discussion at (I)(A), supra), and justifiable reliance is a required element of this fraud claim
(Rich v. Olah, 274 S.W.3d 878, 887 (Tex. App. — Dallas 2008, no pet.) (“Justifiable reliance is also
Vance Manning's Response to Plaintiffs’ Motion for Partial Summary Judgment Page 16 of 19
an essential element of their causes of action for fraud, statutory fraud, and negligent
misrepresentation.”) (citing TEX. BUS. & COMM. CODE §27.01(a) (statutory fraud); Coldwell Banker
White-Side Assocs. v. Ryan Equity Partners, Lid, 181 8. W.34 879, 887-88 (Tex. App. — Dallas 2006,
no pet.) (discussing elements of fraud and statutory fraud)); Edwards v, Rains, 06-11-00008-CV, *6
(Tex. App. — Texarkana 2012, no pet.)(“Common-law fraud, statutory fraud in a real estate
transaction, negligent misrepresentation, and intentional misrepresentation, all require the plaintiff
to justifiably rely on a representation from the defendant.”) (citing TEX. Bus. & CoM. CODE ANN,
§ 27.01 (West 2009) (fraud in real estate transaction); Ernst & Young, LLP. v. Pac. Mut, Life Ins.
Co.,51$.W.3d 573, 577 (Tex. 2001) (intentional misrepresentation claim))). For every type of fraud
claim, justifiable reliance is a required element:
The parties disagree about whether justifiable reliance is an element of a fraud by
omission claim. While Texas courts have not announced the requirement that the
reliance must be justified in a claim of fraudulent non-disclosure, we are persuaded
that this is an element of the plaintiff's claim. The Supreme Court recently made
clear that reliance must be justifiable in a fraud by misrepresentation claim.
Grant Thornton L.L.P., v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex.
2010). The Texas Supreme Court has also explained that “[f]raud by non-disclosure
is simply a subcategory of fraud.” Schlumberger, 959 8.W.2d at 181. Therefore, we
find justifiable reliance also applics to claims of fraud by non-disclosure. See Am.
Tobacco Co., Ine. v. Grinnell, 951 8. W.2d 420, 436 (Tex. 1997) (stating that plaintiff
claiming fraud by non-disclosure “must have reasonably relied upon the silence to
his detriment”).
Allen v. Devon Ene. Hold., LLC, 01-09-00643-CV (Tex. App. — Houston [1* Dist.] 2011, no pet.).
With no firm provisions, and the provisions “to be determined” later (see Plaintiffs’ Exhibit 1 at
CR044 49), Plaintiffs may hardly zely on that provision, much less justifiably rely on some precise
thing happening when no precise thing is even contemplated in the Contract.
As to the easement, Plaintiffs got what they bargained for. See Discussion at (1)(A), supra.
Their reliance is immaterial because their reliance was well-placed.
Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 17 of 19
K Element 5: Plaintiffs Have No Damages; Even If They Are Harmed, Their
Injuries Are Not “Damages” Because They Cannot Stem From Fraud in a Real
Estate Transaction, There Having Been No Fraud.
Complaining that they have suffered because of the claimed lack of easement/sign is not the
same as tying that to any act of wrongdoing by Mr. Manning. Plaintiffs present no evidence of any
particular damages as to type or amount. See Motion at 15-16 438-44. Mr. Manning will, therefore,
offer no evidence to refute damages, but will, instead, rest on his argument that because there is no
actionable statutory real estate fraud claim, whatever harm has befallen Plaintiffs, if any, is of no
consequence to the Court.
CONCLUSION
Vance Manning respectfully requests that the Court deny Plaintiffs’ Motion, and grant to him
such other relief to which he may show himself justly entitled.
Respectfully submitted,
Bays & BAYS
1503 Hailey
Conroe, Texas 77301
Phone: (936) 760-7670
Fax: (936) 760-7671
/s/ J, Randal Bays
J. Randal Bays
State Bar No. 01943900
randy@baysandbays.con
Kristin Bays
State Bar No. 00787914
kristin@baysandbays.com
ATTORNEYS FOR VANCE MANNING
CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing Response to Plaintiffs’ Motion
for Partial Summary Judgment, its attachments and proposed Order denying same have been
delivered to the following counsel of record by eservice on August 6, 2014 pursuant to Texas Rules
of Civil Procedure 21 and 21a:
Matthew J. M. Prebeg
Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 18 of 19
CLEARMAN/PREBEG, LLP
815 Walker, Suite 1040
Houston, Texas 77002
/s/ J. Randal Bays
J. Randal Bays
Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 19 of 19
CAUSE NO, 12-12-13135-CV
DUANE SCOTT OLIVER and JEANETTE LEE § IN THE DISTRICT COURT
OLIVER, INDIVIDUALLY AND d/b/a §
CREEK WOOD SHOOTING SPORTS § 284" JUDICIAL DISTRICT
Vv,
VANCE MANNING 5 MONTGOMERY COUNTY, TEXAS
GINGER MANNING’S AFFIDAVIT
THE STATE OF TEXAS §
COUNTY OF MONTGOMERY §
BEFORE ME, the undersigned authority, on this day personally appeared Ginger Manning,
known to me to be the person whose name is subscribed to the following instrument and having been
by me duly sworn, upon her oath deposes and states as follows:
My name is Ginger Manning. I am over eighteen years of age, I am of sound
mind and body, I have never been convicted of a felony and J am capable of making
this affidavit. I have personal knowledge of all of the matters stated herein and they
are all true and correct. I have the authority to make this affidavit not only for
myself, but also for Vanceco, Inc. I am the president and sole shareholder of
Vanceco, Inc.
My son is Vance Manning. I am aware that years ago he contracted to sell the
subject real estate which he owned and on which he operated a shooting range. That
land is adjacent to land owned by Vanceco, Inc. | learned that the purchasers asked
my son to provide them with an access easement and to give them certain sign rights,
both of which would be related to the property Vanceco, Inc. owned. I told Vance
that Vanceco, Inc. would fulfill those promises, particularly since there was already
an unrecorded access easement of 47.15 feet from the interior of the property to 15
feet at the exit for Highway 105, because Vance already had a sign on Vanceco,
Inc.’s property for the business, which I was happy to let the buyers continue to use,
and because the new sign the buyers wanted was acceptable generally, although I
wanted input as to its size and appearance.
Oliver’s complaint is that Vance had no legal ability to convey the easement
and sign rights. But he did — Vanceco, Inc. consented to allow the new owner have
an easement across its property and for a signage.
The easement is, and has always been, part of an unpaved road that provides
access to the gun club from a recorded Permanent Access Easement (see plat
recorded at Cabinet Z, Sheet 1673, Clerk’s File Number 2009074588), Iam familiar
with the document marked Exhibit A, and it is a true and correct copy of Plat
2009074588. It was an unrecorded easement, and Vanceco, Inc., agreed to sign an
instrument granting Plaintiffs use of this easement in recordable form. Vanceco, Inc.
recorded an instrument at Clerk’s File Number 2011084035 confirming the location.
Ginger Manning's Affidavit Page | of2
of the easement across land it owned and which has been used for years to access the
gun club. I am familiar with the document marked Exhibit B, and it is a true and
correct copy of Easement 2011084035. The easement across Vanceco, Inc.’s land
provides access to the permanent access easement provided in that plat recorded at
Plat Cabinet Z, Sheet 1673 (Clerk’s File Number 2009074588) that is publicly
dedicated. And, in fact, that access casement is 50 feet wide at the entrance from
Highway 105, and 47.15 feet wide at the entrance to casement into Plaintiffs’
business (see Exhibit A), which is certainly “30 feet (+/-)” as the Contract recites.
As to this easement: (1) It is both “recorded” and “recordable”; (2) it is designed per
the real property records for “ingress and egress”; (3) it travels from “near the
southeast corner.,.to State Highway 105”; and (4) It is “at least 30 feet (4/-)* wide
throughout; in fact, it starts “near the southeast corner” at a width of 47.15 feet, and
increases in its width in its path to Highway 105 to end at 50 feet. Zbid. It is
sufficiently wide for ingress and egress, as best proved by the fact that it has been
used for that purpose for years.
lunderstand that Plaintiffs complain that their easement was narrower than
what was promised, but it is within the idea of the dimensions of the agreement,
because the agreement merely calls for 30 feet (+/-) and some place the easement is
greater than 30 feet and in some places it is less than 30 feet in width. It is also
sufficient for access to and from the property, as well know because this dedicated
easement was in place long before the Olivers (Plaintiffs) came around and used
constantly for access.
As for the new sign, the contract says that its size and orientation will be
determined later. I have asked the Olivers (Plaintiffs) to provide me with plans for
their sign for my approval, but Mr. Oliver insists that J will be unable to read the
plans, so he will not provide it. Although I have met with Plaintiffs about the sign
location, they have refused to provide me with any plans, contending that I would be
unable to understand them. The Olivers are their own worst enemy on this point. I
am happy to allow them to place a sign on Vanceco, Inc.’s property, but I want to
know precisely where it will be placed, its materials, its look, and its dimensions
before I permit construction to take place. All he has to do is bring me the plans, (’ll
look at them, and we’ll decide what to do from there, But what I have never done is
refused to allow the Olivers (Plaintiffs) to have that sign. As for the old sign, it is
still there. I have not — either individually or on behalf of Vanceco, Inc. — ever
threatened to remove it or change it, nor have I ever removed it or changed it. It is
still there, and the Olivers (Plaintiffs) are still using it.
Preview
CAUSE NO, 12-12-13135-CV DUANE SCOTT OLIVER and JEANETTE LEE 8 IN THE DISTRICT COURT OLIVER, INDIVIDUALLY AND d/b/a § CREEK WOOD SHOOTING SPORTS § 284" JUDICIAL DISTRICT Vv. § VANCE MANNING § MONTGOMERY COUNTY, TEXAS VANCE MANNING’S RESPONSE TO “PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT OF LIABILITY AGAINST DEFENDANT VANCE MANNING ON LIABILITY FOR STATUTORY FRAUD AND BREACH OF CONTRACT” ‘TO THE HONORABLE CARA WOOD: VANCE MANNING files this Response, and, in support, shows this Court as follows: OVERVIEW Mr. Manning asks this Court to take judicial notice of his pleading (his First Amended Answer), and, more specifically, thagt he has alleged the affirmative defense of limitations. That matters in the context of this Motion for Partial Summary Judgment as to liability (‘Motion’) because unless Plaintiffs disprove each element of his affirmative defense, they cannot get summary judgment. They fail to so much as mention his affirmative defense, however, such that the Court must deny the Motion. STATEMENT OF FACTS While Mr. Manning takes no real issue with Plaintiffs’ statement of facts as to the heart of these transactions, he does take issue with the argumentative comments which they characterize as “facts”, Mr. Manning agrees that he contracted to sell the subject real estate, that Plaintiffs were the purchasers, that the contract required him to provide an easement for ingress and egress of “at least 30 feet (+/-)”, that the contract states that Plaintiffs “require[]} sign rights”, that the contract gives Plaintiffs the “right to retain the current sign” and the “right to place a sign at this location Vance Manning's Response to Plaintiff? Motion for Partial Summary Judgment Page I of 19 permanently”, and that he did not own the land on which the easement and sign would be located, although his mother’s company (Vanceco, Inc.) does. See Motion at 2-3 1-4. Plaintiffs discuss why the easement and sign were important to them (points about which Mr. Manning has no dispute) (see Motion at 3-4 4-6 and 5-7 49-15), and then Jaunch into a diatribe about Mr. Manning’s failure to perform the easement/sign promises - it is zhere that Mr. Manning takes issuc. The heart of Plaintiffs’ complaint is that, they say, Mr. Manning’s easement and sign representations were made with Mr. Manning knowing that “he had no legal ability to convey” the easement and sign rights (id, at 4-5 497-8 and 5 48, 5-6 {[11), and that when he did provide the easement “through Ginger Manning” (bis mother) it “fell over eight (8) feet short in width at the entrance near Highway 105, and over fourteen (14) feet short...at the entrance to the Creekwood business” (id. at 6 $12). These complaints are not “facts”, however, for three key reasons which provide ample justification for the Court to deny the Motion. 1 Vance Manning Had The Legal Ability To Convey The Requested Items: Although Mr. Manning did not own the land on which the easement or sign would be placed, that does not mean, as Plaintiffs say, that “he had no legal ability to convey” those items. In fact, when Plaintifis admit that they got their casement (id. at 6 412), they necessarily admit that Vance Manning had the ability to get the easement conveyed given that he did get the easement conveyed. Not to mention that, as discussed at “Statement of Facts” (3), infra, at the time of closing there was already a 47.15 - 50 foot wide easement, a sign, and an expressed willingness to complete the agreement-to-agree as to a new sign. Indeed, Plaintiffs’ own summary judgment evidence shows these facts — or it would have if Plaintiffs provided the entirety of Mr. Manning’s responses to the Court instead of using selective editing. Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 2 of 19 Plaintiffs’ Exhibit 7 is excerpts from Mr, Manning’s discovery responses; Plaintiffs do not include in their excerpts, however, Mr. Manning’s responses to their Discovery Requests 3 and 4. Under the Rule of Optional Completeness, Mr. Manning offers the entirety of his responses — marked as Exhibit 7-a, to be used as a supplement to Plaintiffs’ Exhibit 7. See Exhibit 7-a, “Vance Manning’s Responses to Plaintiff Duane Scott Oliver’s First Discovery Requests to Defendant”, attached and incorporated by reference as though set out fully herein. In his responses to Discovery Requests 3 and 4 (those being Requests for Admissions), Mr. Manning admits that he both discussed the easement and sign issues with Ginger Manning before closing, and that he got her agreement to provide those things to Plaintiffs. See Exhibit 7-a at 4 (responses to requests 3-4); see also Affidavit of Ginger Manning (“Ginger Manning Affidavit”), attached and incorporated by reference as though set out fully herein. So, even though he did not own the land for the easement or sign, he did have the legal ability to convey those items, having acquired that ability from the owner ~ Vanceco, Inc., a company owned by his mother, Ginger Manning. Jbid. Thus, the claims related to Vance Manning misrepresenting his legal ability to convey the easement and sign are without merit — he didn’t own the land, but he never said he did, and he did have the legal ability to get Plaintiffs what they wanted. 2. Per the Contract, the Easement Is of Unspecified Size and the Sign Rights Are “To Be Determined” Later: As for the easement, Plaintiffs acknowledge that they got an easement, but that the size was “short” what was promised (see Motion at 6 12), which is a difficult position for them to maintain given that the easement’s dimensions are subject to a “+/-” variation. The size is not sct in stone, despite Plaintiffs’ claim that it is. They complain that the casement is 8 feet short near Highway 105 and 14 feet shori near the building (id), but the Contract says the easement size is “at least 30 feet Vance Manning's Response te Plaintiffs’ Motion for Partial Summary Judgment Page 3 of 19 (+/-)”. See Plaintiffs’ Exhibit 1 at CRO44, So what is the measurement? At least 30 feet plus or minus is hardly a precise mathematical figure. Plaintiffs say that the easement is 8 feet short near Highway 105, which, if the Court assumes a 30 foot wide easement, would make ihe casement 22 feet wide; 22 feet wide is +/- 30 feet and sufficient for the easement’s purpose, that being “ingress and egress”. Compare Motion at 6 12 ¢o Plaintifls’ Exhibit 1 at CR044 44. They also say that the easement is 14 feet short near Highway 105, which, if the Court assumes a 30 foot wide easement, would make the easement 16 feet wide; 16 feet wide is +/- 30 feet and sufficient for the easement’s purpose, that being “ingress and egress”. Compare Motion at 6 {12 to Plaintiffs’ Exhibit 1 at CR044 A. The Contract is decidedly vague about the specifics of the sign as well. It says Plaintiffs “require[| sign rights”, which says nothing about any promise to give sign rights or what those sign rights are. See Plaintiffs’ Exhibit 1 at CR044 49. The contract even recites, “Size and orientation to be determined....Not to exceed 4°x8°.” Jd. As discussed below, this is nothing more than an agreement to agree, and is not a contract at all. Paragraph 10 gives Plaintiffs the right to “retain the current sign at the rear Northeast corner of the office building” and the “right to place a sign at this location permanently”. See Plaintiffs’ Exhibit 1 at CR044 410. That provision is sort of specific, although there is no way to look at the contract and know anything about the precise location of that sign, its dimensions, or its appearance. But, realistically, nowhere in Plaintiffs’ pleadings do they complain about this provision, other than to say that they did not get sign rights generally. But they certainly do not claim that Mr, Manning removed the sign from that location, or that it was subsequently removed with Plaintiffs being told that they could have no sign at that location — because neither thing ever happened. See Ginger Vance Manning’s Response to Plaintiff? Motion for Partial Summary Judgment Page 4 of 19 Manning Affidavit. It is a red herring to include this contractual provision in the Motion because the Motion is devoid of either evidence or argument that this provision remains unfulfilled. 3 Plaintiffs Got Sign Rights and An Ingress/Egress Easement: As for the casement, Plaintiffs’ complaint has always been unfounded. The easement is, and has always been, part of an unpaved road that provides access to the gun club from a recorded Permanent Access Easement (see plat recorded at Cabinet Z, Sheet 1673, Clerk’s File Number 2009074588). See Exhibit 7-a at 4 (xesponse to request 5); see also Exhibit A, certified copy of Plat 2009074588, attached and incorporated by reference as though set out fully herein; Ginger Manning Affidavit. Itis publicly dedicated as an unrecorded casement, and Vanceco, Inc., prior to December 31, 2008, agreed to sign an instrument granting Plaintiffs use of this easement in recordable form. Ibid. Vanceco, Inc. recorded an instrument at Clerk’s File Number 2011084035 confirming the location of the easement across land it owned and which has been used for years to access the gun club. Jbid.; see also Exbibit B, certified copy of Easement 2011084035, attached and incorporated by reference as though set out fully herein. The easement across Vanceco, Inc.’s land provides access to the permanent access easement provided in that plat recorded at Plat Cabinet Z, Sheet 1673 (Clerk’s File Number 2009074588) that is publicly dedicated. Jbid. And, in fact, that access easement is 50 feet wide at the entrance from Highway 105, and 47.15 feet wide at the entrance to Plaintiffs’ business (see Exhibit A), which is certainly “30 feet (+/-)” (see Plaintiffs’ Exhibit 1 at CRO044). As to the sign, although the sign provisions are vague, Vanceco, Inc. agreed that Plaintiffs could have a sign location prior to December 31, 2008 and has been willing to grant them a sign location at all times since then. See Exhibit 7-a at 4 (response to request 5); Affidavit of Ginger Vance Manning's Response to Plaintiff’ Motion for Partial Summary Judgment Page 5 of 19 Manning (“Ginger Manning Affidavit”), attached and incorporated by reference as though set out fully herein. Ginger Manning, Vanceco, Inc.’s president, even met with Plaintiffs about the sign jocation, but they refused to provide her with any plans, contending that she would be unable to understand them. /bid. But when the agreement says nothing more than Plaintiffs “require[] sign rights at the entrance to the Creckwood complex at Hwy 105W (Size and orientation to be determined), Not to exceed 4°x8’” (see Plaintiffs’ Exhibit 1 at CRO44 49), and Ginger Manning wants to see the plans for the sign before allowing Plaintiffs to erect it, a request Plaintiffs refused, how can they possibility complain about a breach. They have nothing more than an unenforceable agreement to agree, but Ginger Manning has always been willing to make it into a firm agreement, which is more than the law requires. Jbid. As for the current sign and Plaintiffs’ right to continue to use it, Plaintiffs have that sign and those sign rights. See Exhibit 7-a at 4 (response to request 5); Ginger Manning Affidavit. As noted above, they raise no complaint and present no evidence to suggest, much less conclusively prove, that anyone removed that sign and denied Plaintiffs the right to erect one in its stead. Mr. Manning did everything that he was supposed to do. DISCUSSION Summary judgment is proper only when the movant demonstrates that there is no genuine issue as to any material fact such that he is entitled to judgment as a matter of law. TEX. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 8.W.3d 211, 215-16 (Tex. 2003); Nixon vy. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true, and every reasonable inference must be indulged in favor of the non-movant, Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 6 of 19 with all doubts resolved in his favor. Valence Operating Co, v. Dorsett, 164 $.W.3d 656,661 (Tex. 2005); Nixon, 690 S.W.2d at 548-49. I VANCE MANNING HAS NOT BREACHED HIS CONTRACT, OR, AT LEAST, THERE IS A GENUINE ISSUE OF MATERIAL FACT AS TO WHETHER HE HAS. Plaintiffs list the elements of a breach of contract claim, then go through each, telling the Court that the evidence is conclusive as to each. Au contraire. A Element 1: There Is No Longer A Contract On Which Plaintiffs May Recover Under the Merger Doctrine, and the Easement/Sign Provisions Are Unenforceable Agreements-To-Agree. Merger Doctrine: Mr. Manning agrees that he had a contract with Plaintiffs, but legally the contract is no more, Where a deed has been executed and accepted as performance on an earnest money contract to convey real estate, all rights and duties created by an earnest money contract are merged into the deed when the seller delivers and the buyer accepts the deed. See CommercialBank, Unincorporated y. Satterwhite, 413 S.W.2d 905, 909 (Tex. 1967); Perry v. Stewart Title Co., 756 F.2d 1197, 1205 (5" Cir, 1985). The Supreme Court described the merger doctrine as follows: When a deed is delivered and accepted as performance of a contract to convey, the contract is merged in the deed. Though the terms of the deed may vary from those contained in the contract, still the deed must be looked to alone to determine the rights of the parties. Alvarado y. Bolton, 749 S$. W.2d 47, 48 (Tex. 1988) (quoting Buker v. Baker,207 S.W.2d 244, 249 (Tex. Civ. App. — San Antonio 1947, writ refd n.r.e.) (quoting 2 Robert T. Devlin, A TREATISE ON THE LAW OF DEEDS §850a (2d ed. 1897))); see also Givens v. Ward, 272 S.W.3d 63, 68 (Tex. App. ~ Waco 2008, no pet.). Plaintiffs admit that the promises at issue were made before the deal closed -~ and even attach the contract to their Petition ~ and they admit that they closed the deal on pages 2-3 of their Petition, as well as in their Motion. See Motion at 2-3 491-3, 5 99. And the promises Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 7 of 19 at issue are quoted in the Petition, and are promises related to the conveyance itself ~ ie., that Plaintiffs will have an easement and rights to place a sign on the property once purchased, fd. at 3-4 43-6. For that reason, there are no separate promises which survive the closing; these promises are merged into the deed, leaving no breach of contract cause of action related to them.! Plaintiffs claim to the contrary. They say that the easement/sign issue was separate and apart from the deed because they were not part of the land being purchased, and because they were to be provided “[s]eparate and apart from the deed of land.” Jd. at 4 6 and 5 §9. But while the casement was not part of the land being sold, the easement was part of the contract, with a statement that the easement would be provided “at closing”. See Plaintiffs’ Exhibit 1 at CR044 4. In other words, it might not have been part of the land, but it was part of what was to be conveyed at closing. If it was not provided at closing as Plaintiffs contend, then their willingness to close without it extinguishes that contractual obligation. Or, at least, it creates a genuine issue of material fact as to whether it was such a separate part that they could close on the land sans easement and still retain the contractual right to get the easement. Either way, summary judgment for Plaintiffs is inappropriate because the evidence is not conclusive and does not eliminate any genuine issue as to the material fact of whether Plaintiffs have a contract on which they may sue. Agreement-To-Agree: When a contract plans for some vague performance to occur ! Although the doctrine of merger does not operate to bar claims of fraud in transactions leading up to the deed (Alvarado, 749 SW 2d at 48 (“we hold that the doctrine of merger may not be applied to defeat a cause of action under the DTPA for breach of an express warranty made in an earnest money contract and breached by deed”)); see also CommercialBank of Mason y. Satterwhite, 413 8.W.2d 905, 909(Tex, 1967); Muncwar v. Cadle Co., 2 8.W.3d 12, 17 (Tex. App. — Corpus Christi 1999, pet. denied), it does bar claims for breach of contract related to contractual obligations about the conveyance of the property. Harris v. Rowe,593 S.W.2d 303, 307 (Tex. 1979); see also Sanchez v. Dickinson, 551 S.W.2d 481, 486 (Tex. Civ. App. — San Antonio 1977, no writ) (holding merger doctrine did not destroy right of first refusal from contract); Pleasant Grove Builders, Inc. v. Phillips, 355 S.W.2d 818, 823 (Tex. Civ. App. — Dallas 1962, writ ref’d n.r.e.) (holding that agreement to furnish title policy was not superseded by deed). Thus, even if the doctrine is inapplicable to the fraud claims, it does have an effect as to the breach of contract claim on which Plaintiffs seek summary judgment. Vance Manning's Response to Plaintiffs’ Motion for Partial Sammary Judgment Page8 of 19 in the future, then it is nothing more than an unenforceable agreement to agree: [A]n agreement io make a future contract is enforceable only if it is “specific as to all essential terms, and no terms of the proposed agreement may be left to future negotiations.” It is well settled law that when an agreement leaves material matters open for future adjustment and agreement that never occur, it is not binding upon the parties and merely constitutes an agreement to agree.’ Fort Worth Independent School Dist. v. City of Fort Worth, 22 8.W.3d 831, 846 (Tex. 2000) (emphasis supplied); see also Pine v, Gibraltar Sav. Ass'n, 519 S.W.2d 238, 243-44 (Tex. Civ. App. ~ Houston [1 Dist.] 1974, writ ref'd n..e.). Neither the jury nor the Court may supply essential terms that the parties did not agree upon because, for an agreement to be legally binding, the contract’s terms must be sufficiently definite to cnable the Court to understand what the promisor undertook. Fort Worth Indep. Sch. Dist., 22 8.W.3d at 846; 7.0. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). Ifthe court is unable to determine the parties’ rights, then there is no enforceable contract. See Searcy v. DDA, Inc., 201 S.W.3d 319, 322 (Tex. App. - Dallas 2006, no pet.); Estate of Eherling v. Fair, 546 $.W.2d 329, 335 (Tex. Civ. App. ~ Dallas 1976, writ ref"d n.t.e.); see also T. O. Stanley Boot Co., 847 §.W.2d at 221 (no binding contract if an essential term is left open for future negotiation; before a court can enforce the contract, the * The Court cites in footnotes the following cases: Foster v. Wagner, 343 $8, W.2d 914, 920-21 (Tex. Civ. App. ~ El Paso 196], writref'd n.re.}. Accord Tenneco, 917 S.W.2d at 830-31; Texas State Opticalv. Caylor, 387 8.W.2d 461, 464 (Tex. Civ. App. ~ Beaumont 1965, writ ref'd ».r.¢.). > ‘The Court cites in footnotes the fallowing cases: Pine v, Gibraltar Sav. Ass'n, 519 S.W.2d 238, 244 (Tex. Civ, App. ~— Houston [1" Dist.] 1974, writ ref’d n.x.e,) (citing O'Neil v. Powell, 470 S.W.2d 775, 779 (Tex. Civ. App. ~ Fort Worth 197], writ ref'd mr ); Gasperson v. Madill Nat’l Bank, 455 8.W.2d 381, 387 (Tex. Civ. App. ~ Fort Worth 1970, writ ref'd n.t.e.)). See also Central Texas Micrographies v. Leal, 908 8.W.2d 292, 297 (Tex. App. - San Antonio 1995, no writ) (“[T]he general rule is that no enforceable contract exists ‘where the agreement of the parties leaves an essential term for later determination and it is never determined.” (quoting Mooney v. Ingram, 547 S.W.2d 314, 317 (Tex. Civ. App. ~ Dallas 1977, writ ref'd n.r.e.) (emphasis added)). Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 9 of 19 parties must agree to the contract’s material terms). When a contract leaves open material terms, then it is unenforceable as a matter of law: In general, a contract is legally binding only if its terms are sufficiently definite to enable a court to understand the parties’ obligations! “The rules regarding indefiniteness of material terms of a contract are based on the concept that a party cannot accept an offer so as to form a contract unless the terms of that contract are reasonably certain. 8 Fort Worth Independent School Dist., 22 8.W.3d at 846. No one can be charged with accepting an offer unless the terms of the contract are reasonably certain. Jd; RESTATEMENT (SECOND) OF CONTRACTS §33(1) (1981); Ski River Development, Inc. v. MeCalla, 167 8.W.3d 121, 133 (Tex. App. ~ Waco 2005, pet. denied). In fact, no trial court has authority to ask the fact finder to supply an essential contract term that the parties did not complete by mutual agreement. COC Servs., Ltd. v. CompUSA, Inc., 150 8.W.3d 654, 664 (Tex. App. — Dallas 2004, pet. denied). “Fatal indefiniteness in an agreement may concern the time of performance, the price to be paid, the work to be done, the service to be rendered or the property to be transferred.” /d. This Contract suffers from “fatal indefiniteness” as to both the easement (as to its dimensions and precise placement) and the sign. The Contract recites that the easement is to be “recorded (or recordable)” and must be an “ingress and egress easement from subject property [whatever that is] to State Highway 105 [which is a long road, making the lack of a precise location troublesome]”. See Plaintiffs’ Exhibit 1 at CR044 44. The location is made slightly more precise in the next sentence requiring that the easement “begin[] mear the southeast corner of subject property and continuing uninterrupted to 4 Citing 7. O. Stanley Boot Co, v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex, 1992). 5 Citing Texas Oil Co. v. Tenneco Inc., 917 §.W.2d 826, 830 (Tex. App. ~ Houston [14" Dist.] 1994) (citing RESTATEMENT (SECOND) OF CONTRACTS §33(1) (1981)), rev'd on other grounds, 958 8.W.2d 178 (Tex. 1997). Vance Manning's Response to Plaintiffs’ Motion for Partial Summary Judgment Page 10 of 19 State Highway 105.” /d Further, the easement “shall be at least 30 feet (+/-).” Jd So vagaries aside, an easement which fulfills the Contract would be (1) “recorded (or recordable)”, (2) for purposes of “ingress and egress”, (3) traveling from “near the southeast corner...to State Highway 105”, and (4) “at least 30 feet (+/-)” wide throughout. Id. Plaintiffs say the easement they got does not comply because they say it is 8 feet short near Highway 105 and 14 feet short near the building (see Motion at 6 12), but the Contract does not require a particular easement size in either length or width. See Plaintiffs’ Exhibit 1 at CR044 44. And there is no question as to what the Contract actually says, this easement complies. (1) It is both “recorded” and “recordable”. See Exhibits A and B; Ginger Manning Affidavit. (2) It is designed per the real property records for “ingress and egress”. Ibid. (3) It wavels from “near the southeast corner...to State Highway 105”. Ibid. (4) It is “at least 30 feet (+/-)” wide throughout; in fact, it starts “near the southeast corner” at a width of 47.15 fect, and increases in its width in its path to Highway 105 to end at 50 feet. Ibid. Really, even if it was only 1 foot wide throughout, that would not violate the “+/-” provision, though it might be a problem for ingress and egress. So, basically, if itis sufficiently wide for ingress and egress, it complies — and this one is sufficient for ingress and egress, as best proved by the fact that it has been used for that purpose for years, even before Plaintiffs came along. See Ginger Manning Affidavit. Plaintiffs want to complain about the dimensions of the easement, but cannot do so without inviting the Court and/or the jury to fill in a precise dimension which does not appear in the Contract. This they cannot do. As for the sign, the Contract recites that the new sign was contemplated because “Buyer requires sign rights at the entrance to the Creekwood complex at Mwy 105W.” See Plaintiffs’ Exhibit 1 at CRO44 49. With no better description of location than that, it is unclear where this sign Vance Manning's Response to Plaintiffs’ Motion for Partial Summary Judgment Page 11 of 19 is to be placed. More than that, this is not a contractual obligation — it is, instead, a statement of what Plaintiffs “require”, with no description of how to fulfill this requirement. ‘The only portion of the Contract which comes close is the next provision, which recites, “(Size and orientation [of the sign] to be determined). Not to exceed 4’x8’.” Jd. So when the particulars of the sign are “to be determined”, this provision is nothing more than an agreement to agree — and no one has agreed yet. It is unenforceable. Ginger Manning has engaged in good faith discussions with Plaintiff's about placing this sign (see Ginger Manning Affidavit), and even that is more than the Contract requires. Point in fact, the Contract requires nothing. It says only that Plaintiffs “require[] a sign”, a general description of the vicinity, with the particulars “to be determined.” See Plaintiffs’ Exhibit 1 at CRO44 49. Neither the Court nor the jury may fill in the missing terms to make this unenforceable provision enforceable, which is why summary judgment in favor of Plaintiffs on this unenforceable contractual provision would be error. B. Element 2: Plaintiffs Do Not Have Standing To Sue for Breach of Contract Given that There Is No Longer A Contract On Which Plaintiffs May Recover Under the Merger Doctrine. For the reasons discussed in (1)(A), supra, there is no contract on which Plaintiffs may sue, it having been merged into the documents they obtained and accepted at closing. Cc. Element 3: Plaintiffs Performed. Mr. Manning agrees that Plaintiffs performed under the Contract, though that fact is meaningless given that the Contract was extinguished at closing (see Discussion at (I)(A), supra), and the sign provisions are altogether unenforceable (id. at (B), supra). D. Element 4: Mr. Manning Did Not Breach the Contract. Assuming arguendo that Plaintiffs have a contract on which they may sue, Mr. Manning Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 12 of 19 performed his obligations under it. The only obligations Plaintiffs cite are those related to the easement and the sign. Their complaint is only that Mr. Manning knew about these recitations in the Contract and knew that he “did not own the land necessary for him to convey those rights.” See Motion at 9 23. But he does not have to own that land in order to be able to convey those rights; this argument means nothing more than that Mr. Manning could not personally sign an easement and could not personally permit the sign rights, but that doesn’t mean he couldn’t fulfill these terms at the time of contracting. In fact, he makes no representations that he owns the land in the Contract, and his lack-of-ownership does not translate into meaning that he could not fulfill those conveyances because, in fact, he did. is mother owned the company that owned the land necessary to convey those rights, and his mother not only said she would do it, she did it, See Ginger Manning Affidavit. Plaintiffs say she didn’t. See Motion at 9-10 423. The real property records say to the contrary. See Exhibits A and B; see also Ginger Manning Affidavit. Plaintiffs always had an access easement through a public dedication of the land in dimensions sufficient to fulfill the contractual terms (they, themselves, being vague), and they got an casement as to their portion when they complained. See Ginger Maming Affidavit. They got the casement. They also got sign rights. They still have the right to use the sign that was formerly in place, and they have the right to place a new sign with “[s]ize and orientation to be determined.” See Ginger Manning Affidavit; Plaintiffs’ Exhibit 1 at CRO44. It has not been determined yet, but that is not a breach and that is not actionable. They have an agreement to agree, and a party (Ginger Manning) willing to reach an agreement with them. See Ginger Manning Affidavit. They should make their agreement with her as the Contract contemplated, but they should not sue Mr. Manning Vance Manning's Response to Plaintiffs’ Motion for Partial Summary Judgment Page 13 of 19 for their failure to do what the Contract contemplates ~- reach a subsequent agreement as to their sign. gE Element 5: Plaintiffs Have No Damages; Even If They Are Harmed, Their Injuries Are Not “Damages” Because They Cannot Stem From A Breach of Contract, There Having Been None. Complaining that they have suffered because of the claimed lack of easement/sign is not the same as tying that to any act of wrongdoing by Mr. Manning. Plaintiff's explain that their damages are unliquidated and not part of their Motion. See Motion at 12 428. Mr. Manning will, therefore, offer no evidence to refute the claimed damages, but will, instead, rest on his argument that because there is no actionable breach of contract claim, whatever harm has befallen Plaintiffs, if any, is of no consequence to the Court. IL. VANCE MANNING HAS NOT ENGAGED IN STATUTORY FRAUD, OR, AT LEAST, THERE ARE GENUINE ISSUES OF MATERIAL FACTS AS TO WHETHER HE IS LIABLE ON THIS CAUSE OF ACTION. Plaintiffs list the elements of Statutory Real Estate Fraud, then go through each one at a time. See Motion at 12-16. Mr. Manning will follow suit. A Element 1: The Transaction Inyolves Real Estate. This element is conclusive — the case involves a real estate transaction, But that is the only element which Plaintiffs can prove conclusively...or at all. B. Vance Manning Made No False Representations of Fact Or Promises To Induce the Sale. Plaintiffs’ position here again relates to the casement/sign issues. See Motion at 13-14 §9}32- 33. They focus on the notion that “Mr, Manning’s knowing lack of any legal authority or ability to convey the easement and signage rights was ‘material’ to inducing Plaintiffs to enter into the contract.” Jd. at §33. What they seem to mean to say is that the easement/sign issues were material to Plaintiffs in deciding to purchase the land, and that Mr. Manning promised those items, knowing Vance Manning’s Response to Plaintiffs’ Motion for Partiat Summary Judgment Page 14 of 19 he lacked the legal authority/ability to fulfill those expectations. As the discussion above makes plain: 1 Plaintiffs’ interest in the easement was fulfilled by a (1) “recorded (or recordable)” casement, (2) made for purposes of “ingress and egress”, (3) traveling from “near the southeast corner...to State Highway 105”, and (4) “at least 30 feet (+/-)” wide throughout. See Plaintiffs’ Exhibit 1 at CR044 4; Exhibit A; Exhibit B. Plaintiffs’ sign interest is an unenforceable agreement-to-agree (see Discussion at (I)(B), supra), but is fulfilled by Ginger Manning’s willing discussions with Plaintiffs to get them the sign as per the “to be determined” portion of the Contract. See Ginger Manning Affidavit; Plaintiffs’ Exhibit 1 at CRO44 49. Plaintiffs have use of the old sign as per the Contract (see Ginger Manning Affidavit; Plaintiffs’ Exhibit 1 at CRO44 §10), and Plaintiffs offer no evidence to the contrary. Jn fact, the only thing that Plaintiffs prove conclusively is that Vance Manning did not own the land on which the easement and sign would be located, but that is a red herring because he never made any representation to the contrary. See Ginger Manning Affidavit. Plaintiffs offer no evidence that he did, nor could they ~ because he didn’t. /d. Plaintiffs error is that they equate his lack of ownership with a lack of authority, but the two do not equate. Mr. Manning knew that his mother (whose company owned the land) would permit those two items so that he could fulfill promises as to them, so he had the authority to make the promises and he did so expecting them to be fulfilled. See Ginger Manning Affidavit. That is to say, he did not make a promise with the present intention of not fulfilling it as is required for promissory fraud. See Formosa Plastics Corp. USA y. Presidiokng’s & Contractors, Inc., 960 S.W.2d 41, 47(Tex. 1998). Instead, he made promises that he knew he would fulfill, a/beit through his mother (see Ginger Manning Affidavit), and that were fulfilled though his mother (see Ginger Manning Affidavit, Exhibits A and B). And without fraudulent intent, there is no claim for fraud. See Barnett v. Barnett,67 8.W.3d 107, 126 (Tex. 2001) (in traditional or actual fraud, there must be fraudulent intent). Vance Manning's Response to Plaintiffs’ Motion for Partial Summary Judgment Page 15 of 19 Unless Plaintiffs are able to present proof that he said something that he knew was untrue, they have no fraud claim. All they can prove is that he made promises which could only be fulfilled through actions by a third-party, but that doesn’t mean that Mr. Manning would not get the promises fulfilled, especially when the third-party is his mother. Mr. Manning’s intent is the key to this fraudulent inducement claim, and his testimony that he intended to fulfill these contractual terms through his mother’s actions (see Ginger Manning Affidavit), coupled with the fact that she did fulfill them (see Ginger Manning Affidavit; Exhibit A; Exhibit B), means that there is a genuine issue as to the material facts (1) of Mr. Manning’s intentions, and (2) of whether Mr. Manning said anything that was false. Cc Element 3: Mr. Manning Said Nothing False, Such that He Did Not Engage in Fraudulent Inducement. This clement pertains to Mr. Manning’s motives in saying something false -- that is, he said it in order to induce Plaintiffs to contract with him. But he said nothing false and has no intention of saying something false to trick Plaintiffs into contracting with him. See Discussion at (I)(B), supra. Consequently, there exist genuine issues as to the material facts of whether Mr. Manning was making false representations in order to induce the Contract. D. Element 4: Plaintiffs Reliance Was Not Reasonable As to the Sign, and Was Not Misplaced As to the Easement. Plaintiffs wax eloquent about how important the easement and sign were to them in purchasing this property (see Motion at 14-15 437), which actually misses the mark. The reason it does is because their reliance on the agreement-to-agree as to the sign is hardly justified (see Discussion at (I)(A), supra), and justifiable reliance is a required element of this fraud claim (Rich v. Olah, 274 S.W.3d 878, 887 (Tex. App. — Dallas 2008, no pet.) (“Justifiable reliance is also Vance Manning's Response to Plaintiffs’ Motion for Partial Summary Judgment Page 16 of 19 an essential element of their causes of action for fraud, statutory fraud, and negligent misrepresentation.”) (citing TEX. BUS. & COMM. CODE §27.01(a) (statutory fraud); Coldwell Banker White-Side Assocs. v. Ryan Equity Partners, Lid, 181 8. W.34 879, 887-88 (Tex. App. — Dallas 2006, no pet.) (discussing elements of fraud and statutory fraud)); Edwards v, Rains, 06-11-00008-CV, *6 (Tex. App. — Texarkana 2012, no pet.)(“Common-law fraud, statutory fraud in a real estate transaction, negligent misrepresentation, and intentional misrepresentation, all require the plaintiff to justifiably rely on a representation from the defendant.”) (citing TEX. Bus. & CoM. CODE ANN, § 27.01 (West 2009) (fraud in real estate transaction); Ernst & Young, LLP. v. Pac. Mut, Life Ins. Co.,51$.W.3d 573, 577 (Tex. 2001) (intentional misrepresentation claim))). For every type of fraud claim, justifiable reliance is a required element: The parties disagree about whether justifiable reliance is an element of a fraud by omission claim. While Texas courts have not announced the requirement that the reliance must be justified in a claim of fraudulent non-disclosure, we are persuaded that this is an element of the plaintiff's claim. The Supreme Court recently made clear that reliance must be justifiable in a fraud by misrepresentation claim. Grant Thornton L.L.P., v. Prospect High Income Fund, 314 S.W.3d 913, 923 (Tex. 2010). The Texas Supreme Court has also explained that “[f]raud by non-disclosure is simply a subcategory of fraud.” Schlumberger, 959 8.W.2d at 181. Therefore, we find justifiable reliance also applics to claims of fraud by non-disclosure. See Am. Tobacco Co., Ine. v. Grinnell, 951 8. W.2d 420, 436 (Tex. 1997) (stating that plaintiff claiming fraud by non-disclosure “must have reasonably relied upon the silence to his detriment”). Allen v. Devon Ene. Hold., LLC, 01-09-00643-CV (Tex. App. — Houston [1* Dist.] 2011, no pet.). With no firm provisions, and the provisions “to be determined” later (see Plaintiffs’ Exhibit 1 at CR044 49), Plaintiffs may hardly zely on that provision, much less justifiably rely on some precise thing happening when no precise thing is even contemplated in the Contract. As to the easement, Plaintiffs got what they bargained for. See Discussion at (1)(A), supra. Their reliance is immaterial because their reliance was well-placed. Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 17 of 19 K Element 5: Plaintiffs Have No Damages; Even If They Are Harmed, Their Injuries Are Not “Damages” Because They Cannot Stem From Fraud in a Real Estate Transaction, There Having Been No Fraud. Complaining that they have suffered because of the claimed lack of easement/sign is not the same as tying that to any act of wrongdoing by Mr. Manning. Plaintiffs present no evidence of any particular damages as to type or amount. See Motion at 15-16 438-44. Mr. Manning will, therefore, offer no evidence to refute damages, but will, instead, rest on his argument that because there is no actionable statutory real estate fraud claim, whatever harm has befallen Plaintiffs, if any, is of no consequence to the Court. CONCLUSION Vance Manning respectfully requests that the Court deny Plaintiffs’ Motion, and grant to him such other relief to which he may show himself justly entitled. Respectfully submitted, Bays & BAYS 1503 Hailey Conroe, Texas 77301 Phone: (936) 760-7670 Fax: (936) 760-7671 /s/ J, Randal Bays J. Randal Bays State Bar No. 01943900 randy@baysandbays.con Kristin Bays State Bar No. 00787914 kristin@baysandbays.com ATTORNEYS FOR VANCE MANNING CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing Response to Plaintiffs’ Motion for Partial Summary Judgment, its attachments and proposed Order denying same have been delivered to the following counsel of record by eservice on August 6, 2014 pursuant to Texas Rules of Civil Procedure 21 and 21a: Matthew J. M. Prebeg Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 18 of 19 CLEARMAN/PREBEG, LLP 815 Walker, Suite 1040 Houston, Texas 77002 /s/ J. Randal Bays J. Randal Bays Vance Manning’s Response to Plaintiffs’ Motion for Partial Summary Judgment Page 19 of 19 CAUSE NO, 12-12-13135-CV DUANE SCOTT OLIVER and JEANETTE LEE § IN THE DISTRICT COURT OLIVER, INDIVIDUALLY AND d/b/a § CREEK WOOD SHOOTING SPORTS § 284" JUDICIAL DISTRICT Vv, VANCE MANNING 5 MONTGOMERY COUNTY, TEXAS GINGER MANNING’S AFFIDAVIT THE STATE OF TEXAS § COUNTY OF MONTGOMERY § BEFORE ME, the undersigned authority, on this day personally appeared Ginger Manning, known to me to be the person whose name is subscribed to the following instrument and having been by me duly sworn, upon her oath deposes and states as follows: My name is Ginger Manning. I am over eighteen years of age, I am of sound mind and body, I have never been convicted of a felony and J am capable of making this affidavit. I have personal knowledge of all of the matters stated herein and they are all true and correct. I have the authority to make this affidavit not only for myself, but also for Vanceco, Inc. I am the president and sole shareholder of Vanceco, Inc. My son is Vance Manning. I am aware that years ago he contracted to sell the subject real estate which he owned and on which he operated a shooting range. That land is adjacent to land owned by Vanceco, Inc. | learned that the purchasers asked my son to provide them with an access easement and to give them certain sign rights, both of which would be related to the property Vanceco, Inc. owned. I told Vance that Vanceco, Inc. would fulfill those promises, particularly since there was already an unrecorded access easement of 47.15 feet from the interior of the property to 15 feet at the exit for Highway 105, because Vance already had a sign on Vanceco, Inc.’s property for the business, which I was happy to let the buyers continue to use, and because the new sign the buyers wanted was acceptable generally, although I wanted input as to its size and appearance. Oliver’s complaint is that Vance had no legal ability to convey the easement and sign rights. But he did — Vanceco, Inc. consented to allow the new owner have an easement across its property and for a signage. The easement is, and has always been, part of an unpaved road that provides access to the gun club from a recorded Permanent Access Easement (see plat recorded at Cabinet Z, Sheet 1673, Clerk’s File Number 2009074588), Iam familiar with the document marked Exhibit A, and it is a true and correct copy of Plat 2009074588. It was an unrecorded easement, and Vanceco, Inc., agreed to sign an instrument granting Plaintiffs use of this easement in recordable form. Vanceco, Inc. recorded an instrument at Clerk’s File Number 2011084035 confirming the location. Ginger Manning's Affidavit Page | of2 of the easement across land it owned and which has been used for years to access the gun club. I am familiar with the document marked Exhibit B, and it is a true and correct copy of Easement 2011084035. The easement across Vanceco, Inc.’s land provides access to the permanent access easement provided in that plat recorded at Plat Cabinet Z, Sheet 1673 (Clerk’s File Number 2009074588) that is publicly dedicated. And, in fact, that access casement is 50 feet wide at the entrance from Highway 105, and 47.15 feet wide at the entrance to casement into Plaintiffs’ business (see Exhibit A), which is certainly “30 feet (+/-)” as the Contract recites. As to this easement: (1) It is both “recorded” and “recordable”; (2) it is designed per the real property records for “ingress and egress”; (3) it travels from “near the southeast corner.,.to State Highway 105”; and (4) It is “at least 30 feet (4/-)* wide throughout; in fact, it starts “near the southeast corner” at a width of 47.15 feet, and increases in its width in its path to Highway 105 to end at 50 feet. Zbid. It is sufficiently wide for ingress and egress, as best proved by the fact that it has been used for that purpose for years. lunderstand that Plaintiffs complain that their easement was narrower than what was promised, but it is within the idea of the dimensions of the agreement, because the agreement merely calls for 30 feet (+/-) and some place the easement is greater than 30 feet and in some places it is less than 30 feet in width. It is also sufficient for access to and from the property, as well know because this dedicated easement was in place long before the Olivers (Plaintiffs) came around and used constantly for access. As for the new sign, the contract says that its size and orientation will be determined later. I have asked the Olivers (Plaintiffs) to provide me with plans for their sign for my approval, but Mr. Oliver insists that J will be unable to read the plans, so he will not provide it. Although I have met with Plaintiffs about the sign location, they have refused to provide me with any plans, contending that I would be unable to understand them. The Olivers are their own worst enemy on this point. I am happy to allow them to place a sign on Vanceco, Inc.’s property, but I want to know precisely where it will be placed, its materials, its look, and its dimensions before I permit construction to take place. All he has to do is bring me the plans, (’ll look at them, and we’ll decide what to do from there, But what I have never done is refused to allow the Olivers (Plaintiffs) to have that sign. As for the old sign, it is still there. I have not — either individually or on behalf of Vanceco, Inc. — ever threatened to remove it or change it, nor have I ever removed it or changed it. It is still there, and the Olivers (Plaintiffs) are still using it.