Wes Burch and Janice Burch d/b/a Integrative Communications v. Technical Systems Integrators, LLC, No. 3:2011cv00192 - Document 43 (S.D. Tex. 2012)
Court Description: OPINION AND ORDER granting in part and denying in part 23 Motion for Leave to File Amended Pleading; insofar as the Plaintiffs Motion seeks leave to add claims for breach of fiduciary duty and promissory estoppel, it is DENIED; insofar as the Plain tiffs Motion (Instrument no. 23) seeks to add a claims for exemplary damages, it is GRANTED and the exemplary damages claim WILL BE considered a part of the Plaintiffs live complaint.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, )
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION WES BURCH and JANICE BURCH d/b/a Integrative Communications V. TECHNICAL SYSTEMS INTEGRATORS, LLC § § § § § § § CIVIL ACTION NO. G-11-192 OPINION AND ORDER On July 24, 2012, the Court conducted a Hearing on the Plaintiffs Motion for Leave to File Amended Pleading (Instrument no. 23) which seeks permission to file a Second Amended Complaint adding claims for breach of fiduciary duty, promissory estoppel and exemplary damages; the Motion is opposed by the Defendant. Having now considered the Motion, the relevant submissions, the arguments of counsel and the applicable law, the Court issues this Opinion and Order. The Court finds that it would be futile to allow Plaintiffs to add claims for breach of fiduciary duty and promissory estoppel. There is no evidence that a confidential relationship existed between the Plaintiffs and the Defendant prior to their entry into the Managed Deployment Statement of Work agreement made the basis of this action, therefore, under Texas law, no fiduciary relationship exists to support a breach of fiduciary duty claim. Schlumberger Technology Corp. v. Swanson, 959 S.W. 2d 171, 177 (Tex. 1997) The existence of the written agreement between the Parties, which Plaintiffs concede contains the promises they claim were made by Defendant, precludes the assertion of a promissory estoppel action. Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W. 3d 212, 226 (Tex. 2002) It is, therefore, ORDERED that insofar as the Plaintiffs Motion (Instrument no. 23) seeks leave to add claims for breach of fiduciary duty and promissory estoppel, it is DENIED. In their live complaint, the Plaintiffs have asserted a cause of action for fraud. A successful fraud claim can support an award of exemplary damages and the addition of such a claim, although tardy, will not jeopardize the current trial setting of August 20, 2012, and would afford Plaintiffs the opportunity for complete relief. It is, therefore, further ORDERED that insofar as the Plaintiffs Motion (Instrument no. 23) seeks to add a claims for exemplary damages, it is GRANTED and the exemplary damages claim WILL BE considered a part of the Plaintiffs live complaint. DONE at Galveston, Texas, this 24th 2 day of July, 2012.
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