Preview
STERN
n
U
TLAW
.LJ
fl
UGROUP
Electronically Filed
5/17/2019 4:37 PM
:Evai'egxeifiyfiwxgifiii5:2:
JOSEPH R.CORTEGUERA*
corte uera stern-law rou .com
*Board Certified
Personal Injury Trial Law
Board of Legal Specialization
May 17, 2019
Via Electronic Filing
Hon. Roberto “Bobby” Flores
139th Judicial District Judge — Hidalgo County
100 N. Closner
Edinburg, Texas 78539
Re: Cause No. C-6851-13-C; Jose A. Solis v. Vipers Basketball, LLC d/b/a Rio
Grande Valley Vipers; In the 139th Judicial District Court of Hidalgo County,
Texas.
Dear Judge Flores:
This letter is intended to serve as Plaintiff Jose A. Solis’s (“Solis”) response to the letter
brief filed by Defendant Vipers Basketball, LLC d/b/a Rio Grande Valley Vipers (“Vipers”)
outlining the case law it believes supports its Motion for Entry of Take-Nothing Judgment
(“Motion”). Because Defendant’s arguments hinge on an argument rejected by the Texas
Supreme Court, so, too, should this Court rej ect their argument and deny their Motion.
In Anderson v. Durant, 550 S.W.3d 605 (Tex. 2018), the Texas Supreme Court held that
the “requirement” that “an enforceable bargain” exist before a plaintiff can recover “benefit-of—
the-bargain” damages in a fraudulent inducement claim did not “mean the defrauded party must
procure a finding of enforceability separate and apart from the favorable fraudulent-inducement
findings.” See Anderson, 550 S.W.3d at 614. This holding rejected the Fort Worth Court of
Appeals’ decision to render a take nothing judgment on grounds that the jury did not find the
existence of an enforceable contract with certain terms. See id. In fact, the jury answered “no,” to
the question 0n the existence 0f an agreement and its terms. See id. The Supreme Court in
Anderson, however, agreed with the dissenting opinion in the lower court’s denial of a request
for en banc review of its decision, and it overturned the lower court. See Anderson, 550 S.W.3d
at 614—16.
In this case, the Defendant makes the same faulty argument the majority in the court of
appeals made in Anderson by claiming that “[a]bsent a finding of an enforceable contract, a
verdict 0n fraud alone cannot be affirmed.” In short, the Defendant has correctly stated the types
of damages available in a fraudulent inducement claim, and the Defendant has correctly stated
° ° Phone 0 Fax (713) 666-5922
4909 Bissonnet Street, Suite 100 Bellaire, Texas 77401 (713) 661-9900
www.stern-lawgroup.com
Electronically Filed
5/17/2019 4:37 PM
Hidalgo County District Clerks
Reviewed By: Xavier Jimenez
that an enforceable agreement must exist before one can obtain benefit-of—the-bargain damages
under a fraudulent inducement claim. Where the Defendant gets off-track, however, is where it
asserts that the jury must also make a specific finding 0f an enforceable contract, separate and
apart from its finding 0f fraud, if its award for benefit-of—the-bargain damages can stand. The
Defendant’s reliance 0n Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143 (TeX. 2015), misses
the mark. As pointed out in Anderson, the Supreme Court in Zorz'lla did not instill this
requirement in its jurisprudence.
Rather, the Court in Zorz'lla confirmed the principles described above and then upheld the
verdict and damages award in favor 0f plaintiff, reasoning that the “fraud liability question . ..
included all the elements of a common-law fraud claim and defined ‘misrepresentation’ t0 mean
‘a false statement 0f fact’ 0r ‘a promise 0f future performance made with an intent, at the time
the promise was made, not t0 perform as promised.” See Zorrilla, 469 S.W.3d at 153—54. By
finding fraud, the jury implicitly found that an agreement existed, and so long as the “promise
underlying the jury’s fraud finding” is an enforceable contract, the plaintiff may receive benefit-
of—the-bargain damages. See id.; see also Durant v. Anderson, 2016 WL 7157244, at *7-8 (TeX.
App.—Fort Worth Sept. 8, 2016) (J.Gardner, dissenting). The Supreme Court makes this clear
in its decision in Anderson, in which itextensively explains its holding in Zorilla:
“The defendant argued that because a fraudulent-inducement claim
requires the existence 0f an enforceable contract, the court 0f appeals
erred in failing to consider her evidence-sufficiency challenges t0 the
breach-of—contract findings before upholding the fraudulent—
inducement judgment. We disagreed, holding ‘[t]he fraud questions
submitted t0 the jury incorporate[d] the requisite elements of a
contract—promise, reliance, and an agreement,’ which the jury
found in the plaintiffs favor based 0n sharply conflicting
evidence. The defendant did not obtain a finding 0r conclusively
establish the promise was unenforceable, so the jury’s fraudulent-
inducement findings were a sufficient basis t0 uphold the fraud
judgment and an award of benefit-of—the-bargain damages,
regardless 0f the defendant’s evidentiary challenges t0 the breach-of—
contract finding”
Anderson, 550 S.W.3d at 615.
As Defendant acknowledges, the jury in this case found that it did commit fraud, and the
fraud question submitted t0 the jury, like the questions submitted in Zorilla and Anderson,
included the necessary elements 0f a contract. See id. Similarly, and like in Anderson and
Zorilla, there is n0 explicit finding that an enforceable contract did not exist. See id. at 615.
Further, the jury awarded damages for What it believed the enforceable contract included—a
motor vehicle valued at approximately $58,000. Therefore, because Defendant did not object to
the jury submission, because the jury question on fraud included language incorporating the
elements of a contract, because the jury awarded damages indicating that it believed an
agreement existed, and because there is no other finding 0r evidence indicating that an
enforceable agreement did not exist, the jury’s damages award must stand. See id. at 614-16.
Electronically Filed
5/17/2019 4:37 PM
Hidalgo County District Clerks
Reviewed By: Xavier Jimenez
Finally, the Defendant’s reliance 0n Pasol v. D&C Jewlery Shop, Inc. is also misguided
because that case isnot relevant to the issues before this Court. See Pasol v. D&C Jewlery Shop,
Ina, 2019 WL 1474678 (Tex. App.—C0rpus Christi, April 4, 2019) (mem. 0p.) While Pasol
may involved negligent misrepresentation and common law fraud, there was no request for
benefit—of—the-bargain damages. See id. Nothing in the court’s analysis in Parsol would help With
the analysis here, as there is n0 discussion 0f benefit-of—the-bargain damages, because those
damages were not sought in that case. See id.
In conclusion, the Supreme Court has explicitly rejected the type of argument relied upon
by Defendant in this case. So, too, should this Court reject Defendant’s argument and deny
Defendant’s Motion.
IRC/ee
Wm
Yours
Joseph
truly,
R. Corteguera
35177.19
Preview
STERN n U TLAW .LJ fl UGROUP Electronically Filed 5/17/2019 4:37 PM :Evai'egxeifiyfiwxgifiii5:2: JOSEPH R.CORTEGUERA* corte uera stern-law rou .com *Board Certified Personal Injury Trial Law Board of Legal Specialization May 17, 2019 Via Electronic Filing Hon. Roberto “Bobby” Flores 139th Judicial District Judge — Hidalgo County 100 N. Closner Edinburg, Texas 78539 Re: Cause No. C-6851-13-C; Jose A. Solis v. Vipers Basketball, LLC d/b/a Rio Grande Valley Vipers; In the 139th Judicial District Court of Hidalgo County, Texas. Dear Judge Flores: This letter is intended to serve as Plaintiff Jose A. Solis’s (“Solis”) response to the letter brief filed by Defendant Vipers Basketball, LLC d/b/a Rio Grande Valley Vipers (“Vipers”) outlining the case law it believes supports its Motion for Entry of Take-Nothing Judgment (“Motion”). Because Defendant’s arguments hinge on an argument rejected by the Texas Supreme Court, so, too, should this Court rej ect their argument and deny their Motion. In Anderson v. Durant, 550 S.W.3d 605 (Tex. 2018), the Texas Supreme Court held that the “requirement” that “an enforceable bargain” exist before a plaintiff can recover “benefit-of— the-bargain” damages in a fraudulent inducement claim did not “mean the defrauded party must procure a finding of enforceability separate and apart from the favorable fraudulent-inducement findings.” See Anderson, 550 S.W.3d at 614. This holding rejected the Fort Worth Court of Appeals’ decision to render a take nothing judgment on grounds that the jury did not find the existence of an enforceable contract with certain terms. See id. In fact, the jury answered “no,” to the question 0n the existence 0f an agreement and its terms. See id. The Supreme Court in Anderson, however, agreed with the dissenting opinion in the lower court’s denial of a request for en banc review of its decision, and it overturned the lower court. See Anderson, 550 S.W.3d at 614—16. In this case, the Defendant makes the same faulty argument the majority in the court of appeals made in Anderson by claiming that “[a]bsent a finding of an enforceable contract, a verdict 0n fraud alone cannot be affirmed.” In short, the Defendant has correctly stated the types of damages available in a fraudulent inducement claim, and the Defendant has correctly stated ° ° Phone 0 Fax (713) 666-5922 4909 Bissonnet Street, Suite 100 Bellaire, Texas 77401 (713) 661-9900 www.stern-lawgroup.com Electronically Filed 5/17/2019 4:37 PM Hidalgo County District Clerks Reviewed By: Xavier Jimenez that an enforceable agreement must exist before one can obtain benefit-of—the-bargain damages under a fraudulent inducement claim. Where the Defendant gets off-track, however, is where it asserts that the jury must also make a specific finding 0f an enforceable contract, separate and apart from its finding 0f fraud, if its award for benefit-of—the-bargain damages can stand. The Defendant’s reliance 0n Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143 (TeX. 2015), misses the mark. As pointed out in Anderson, the Supreme Court in Zorz'lla did not instill this requirement in its jurisprudence. Rather, the Court in Zorz'lla confirmed the principles described above and then upheld the verdict and damages award in favor 0f plaintiff, reasoning that the “fraud liability question . .. included all the elements of a common-law fraud claim and defined ‘misrepresentation’ t0 mean ‘a false statement 0f fact’ 0r ‘a promise 0f future performance made with an intent, at the time the promise was made, not t0 perform as promised.” See Zorrilla, 469 S.W.3d at 153—54. By finding fraud, the jury implicitly found that an agreement existed, and so long as the “promise underlying the jury’s fraud finding” is an enforceable contract, the plaintiff may receive benefit- of—the-bargain damages. See id.; see also Durant v. Anderson, 2016 WL 7157244, at *7-8 (TeX. App.—Fort Worth Sept. 8, 2016) (J.Gardner, dissenting). The Supreme Court makes this clear in its decision in Anderson, in which itextensively explains its holding in Zorilla: “The defendant argued that because a fraudulent-inducement claim requires the existence 0f an enforceable contract, the court 0f appeals erred in failing to consider her evidence-sufficiency challenges t0 the breach-of—contract findings before upholding the fraudulent— inducement judgment. We disagreed, holding ‘[t]he fraud questions submitted t0 the jury incorporate[d] the requisite elements of a contract—promise, reliance, and an agreement,’ which the jury found in the plaintiffs favor based 0n sharply conflicting evidence. The defendant did not obtain a finding 0r conclusively establish the promise was unenforceable, so the jury’s fraudulent- inducement findings were a sufficient basis t0 uphold the fraud judgment and an award of benefit-of—the-bargain damages, regardless 0f the defendant’s evidentiary challenges t0 the breach-of— contract finding” Anderson, 550 S.W.3d at 615. As Defendant acknowledges, the jury in this case found that it did commit fraud, and the fraud question submitted t0 the jury, like the questions submitted in Zorilla and Anderson, included the necessary elements 0f a contract. See id. Similarly, and like in Anderson and Zorilla, there is n0 explicit finding that an enforceable contract did not exist. See id. at 615. Further, the jury awarded damages for What it believed the enforceable contract included—a motor vehicle valued at approximately $58,000. Therefore, because Defendant did not object to the jury submission, because the jury question on fraud included language incorporating the elements of a contract, because the jury awarded damages indicating that it believed an agreement existed, and because there is no other finding 0r evidence indicating that an enforceable agreement did not exist, the jury’s damages award must stand. See id. at 614-16. Electronically Filed 5/17/2019 4:37 PM Hidalgo County District Clerks Reviewed By: Xavier Jimenez Finally, the Defendant’s reliance 0n Pasol v. D&C Jewlery Shop, Inc. is also misguided because that case isnot relevant to the issues before this Court. See Pasol v. D&C Jewlery Shop, Ina, 2019 WL 1474678 (Tex. App.—C0rpus Christi, April 4, 2019) (mem. 0p.) While Pasol may involved negligent misrepresentation and common law fraud, there was no request for benefit—of—the-bargain damages. See id. Nothing in the court’s analysis in Parsol would help With the analysis here, as there is n0 discussion 0f benefit-of—the-bargain damages, because those damages were not sought in that case. See id. In conclusion, the Supreme Court has explicitly rejected the type of argument relied upon by Defendant in this case. So, too, should this Court reject Defendant’s argument and deny Defendant’s Motion. IRC/ee Wm Yours Joseph truly, R. Corteguera 35177.19