Kashif Brothers Inc., dba Gulf Palm Food Mart, and Qamar Haq v. Diamond Shamrock Refining & Marketing Company, Ultra Mar Diamond Shamrock Corporation, dba/aka Diamond Shamrock--Appeal from 113th District Court of Harris County

Affirmed and Opinion filed August 22, 2002

Affirmed and Opinion filed August 22, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00202-CV

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KASHIF BROTHERS, INCORPORATED, d/b/a GULF PALM FOOD MART, and QAMAR UL HAQ, Appellants

V.

DIAMOND SHAMROCK REFINING & MARKETING COMPANY, d/b/a DIAMOND SHAMROCK, and ULTRAMAR DIAMOND SHAMROCK CORPORATION, Appellees

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 98-23941

O P I N I O N

Appellants, Kashif Brothers, Incorporated, d/b/a Gulf Palm Food Mart (Kashif Bros.), and Qamar Ul Haq (Haq), appeal an order granting summary judgment in favor of appellees, Diamond Shamrock Refining & Marketing Company (Diamond Shamrock), and Ultramar Diamond Shamrock Corporation (Ultramar). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In July 1994, Kashif Bros. entered into a contract with Colorado County Oil Company ( CCOC ), jobber for appellees, whereby CCOC agreed to sell and Kashif Bros. agreed to buy certain Diamond Shamrock brand products. CCOC had previously entered into a contract with Diamond Shamrock obligating CCOC to purchase a minimum quantity of Diamond Shamrock fuel and other products, and use Diamond Shamrock trademarks and trade names at its places of business and the outlets to which it supplied products. This contract included a provision which stated that it was a sales contract and not a contract of agency. In January 1995, CCOC entered into another contract with Diamond Shamrock, agreeing to construct and install, or cause to be so constructed or installed, the specified improvements at Gulf Palms Food Mart [owned by Kashif Bros.], and purchase from Diamond Shamrock a minimum quantity of fuel products.

In December 1995, appellees acquired several Stop >N Go stores. One of the stores they acquired is across the street from appellants= store. Appellees put Diamond Shamrock signs on the gasoline pumps, advertised that they accepted Diamond Shamrock credit cards, and sold gasoline at a lower price than Kashif Bros. CCOC sent appellees a letter requesting they cease this conduct. Appellees eventually stopped accepting Diamond Shamrock credit cards, but continued to lower its gasoline prices to $0.08 below appellants= cost to buy gasoline under its contract with CCOC.

Appellants sued appellees and CCOC asserting causes of action for (1) fraud, (2) breach of contract, (3) breach of implied in fact promise and contract, (4) breach of fiduciary duty, (5) tortious interference[1] with an existing contract and a prospective contract, (6) breach of covenant of good faith and fair dealing, (7) negligence, (8) violation of Texas Deceptive Trade Practices Act ( DTPA ), and (9) intentional infliction of emotional distress. Appellants settled with CCOC and dismissed their causes of action against it. Appellees filed a motion for summary judgment asserting appellants had no evidence regarding at least one element of each cause of action they asserted. The trial court granted appellees= motion and this appeal ensued.

Appellants have abandoned the following claims by not raising them on appeal:[2]

(1) breach of implied contract;

(2) breach of fiduciary duty; and

(3) negligence.

In five points of error, appellants assert they have produced more than a scintilla of evidence regarding each element of the following causes of action:

(4) fraud;

(5) breach of contract;

(6) tortious interference with an existing contract, and a prospective contract;

(7) DTPA; and

(8) intentional infliction of emotional distress.

II. STANDARD OF REVIEW

The standard of review for a no evidence motion for summary judgment is well settled. Rule 166a(i) provides:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex. R. Civ. P. 166a(i). When a motion is presented under Rule 166a(i) asserting there is no evidence of one or more essential elements of the non-movant=s claims upon which the non-movant would have the burden of proof at trial, the movant does not bear the burden of establishing each element of its own claim or defense. General Mills Restaurants v. Texas Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.CDallas 2000, no pet.); Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432B33 (Tex. App.CHouston [14th Dist.] 1999, no pet.). Rather, the burden shifts to the non-movant to present enough evidence to be entitled to a trial, i.e., evidence that raises a genuine fact issue on the challenged elements. Tex. R. Civ. P. 166a cmt. If the non-movant is unable to provide enough evidence to satisfy this burden, the trial judge must grant the motion. General Mills, 12 S.W.3d at 832; Lampasas, 988 S.W.2d at 433.

Because a no evidence summary judgment is essentially a pretrial directed verdict, we apply the same legal sufficiency standard in reviewing a no evidence summary judgment as we apply in reviewing a directed verdict. General Mills, 12 S.W.3d at 832B33; Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 195 (Tex. App.CAmarillo 1999, pet. denied); Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App.CAustin 1998, no pet.). Thus, our task as an appellate court is to determine whether the non-movant produced any evidence of probative force to raise a fact issue on the material questions presented. General Mills, 12 S.W.3d at 833; Roth, 994 S.W.2d at 195; Jackson, 979 S.W.2d at 70. We consider all the evidence in the light most favorable to the party against whom the no evidence summary judgment was rendered, and every reasonable inference deducible from the evidence is to be indulged in that party=s favor. Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); General Mills, 12 S.W.3d at 833. A no evidence summary judgment is improperly granted if the non-movant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. General Mills, 12 S.W.3d at 833. More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair minded people to differ in their conclusions. Merrell Dow, 953 S.W.2d at 711.

III. SUMMARY JUDGMENT EVIDENCE

In ruling on a motion for summary judgment, a court may consider only evidence that has been referenced or set forth in a motion or response. Tex. R. Civ. P. 166a(c); Wilson v. Burford, 904 S.W.2d 628, 628B29 (Tex. 1995). References to evidence must be specific; a general reference to a voluminous record that does not direct the trial court to the evidence relied upon is insufficient. Rogers v. Ricane Enterprises, Inc., 772 S.W.2d 76, 81 (Tex.1989) (summary judgment motion referred trial court to all material on file ); Guthrie v. Suiter, 934 S.W.2d 820, 825B26 (Tex. App.CHouston [1st Dist.] 1996, no writ) . When presenting summary judgment evidence, [a] party must expressly and specifically identify the supporting evidence on file which it seeks to have considered by the trial court. Boeker v. Syptak, 916 S.W.2d 59, 61 (Tex. App.CHouston [1st Dist.] 1996, no writ). Attaching entire depositions to a motion for summary judgment or a response thereto, and referencing them only generally, Adoes not relieve the party=s burden of pointing out to the trial court where in the evidence the issues set forth in the motion or response are raised.@ Guthrie, 934 S.W.2d at 826. It is not the duty of the trial court to sift through voluminous attachments to discover potential fact issues. Id. Similarly, it is not the duty of this court to sift through a massive record in search of a fact issue in order to overturn a summary judgment. Paull v. Capital Res. Mgmt., Inc., 987 S.W.2d 214, 220B21 (Tex. App.CAustin 1999, pet. denied).

A trial court does not abuse its discretion when it does not consider summary judgment proof to which a movant does not specifically direct the trial court=s attention. Guthrie, 934 S.W.2d at 826. Rule 166a(i) specifically states that [t]he motion must state the elements as to which there is no evidence. Tex. R. Civ. P. 166a(i). In the response, the non-movant must produce evidence that raises a genuine issue of fact on the disputed element. If the non-movant does not, Rule 166a(i) clearly states that the motion must be granted. Id.

 

 IV. APPELLANTS= FAILURE TO MEET THEIR 166a(i) BURDEN

In their motion for summary judgment, appellees allege there is no evidence of at least one element of each of appellants= causes of action. It was appellants= burden to present enough evidence to establish their entitlement to a trial. Tex. R. Civ. P. 166a cmt. With regard to the following causes of action and elements, we hold appellants did not meet their burden of presenting more than a scintilla of evidence or of pointing out to the trial court where in the summary judgment evidence the issues are raised:

(1) fraudBmateriality, falsity;

(2) tortious interference with contractBwillful, intentional interference with existing contract;

(3) tortious interference with prospective contractBmalicious interference;

(4) DTPABconsumer status; and

(5) intentional infliction of emotional distressCdefendant acted intentionally or recklessly, the conduct was extreme and outrageous, and caused severe emotional distress.

Accordingly, the trial court did not abuse its discretion in granting appellees= motion for summary judgment regarding these causes of action. We overrule appellants= first, third, fourth, and fifth points of error. Appellants sole remaining cause of action is breach of contract.

V. BREACH OF CONTRACT

In their petition, appellants assert a breach of contract claim, alleging appellees failed to (1) abide by the terms of the Incentive Agreement, (2) deal in good faith, (3) observe reasonable commercial standards of fair dealing, and (4) adhere to the requirements of the Texas Business and Commerce Code.[3]

In order to sustain a cause of action based on breach of contract, a plaintiff must prove the following: (1) the existence of a contract; (2) creation of duties under the contract; (3) the breach of one of those duties; and (4) damages. Snyder v. Eanes Indep. School Dist., 860 S.W.2d 692, 695 (Tex. App.CAustin 1993, writ denied). In its motion for summary judgment, appellees assert appellants have no evidence that a contract existed between them. In their response to appellants= motion, appellees argue (1) there was an agreement by conduct, (2) there was an oral contract, (3) appellees should be estopped from claiming no contract exists, (4) appellees ratified the contract, and (5) appellants were third party beneficiaries to the contract between CCOC and appellees.

1. Agreement by Conduct

In their response to appellees= motion for summary judgment, appellants claim the contract between CCOC and appellees was a sham contract because appellees knew appellants were the true parties to the contract. Indeed, they argued appellants and appellees acted as if they were the true contracting parties, not CCOC and appellants. Appellants= response regarding the sham contract was deficient in two ways. First, appellants cited no authority in support of their sham contract theory. Tex. R. App. P. 38.1 (stating that an appellate brief must contain appropriate citations to authority and to the record). Second, appellants neglected to specifically direct the trial court to summary judgment evidence that supports their theory of a contract between appellants and appellees based on conduct. See Tex. R. Civ. P. 166a cmt.

2. Oral Contract

In their response to appellees= motion for summary judgment, appellants assert they had an oral contract with appellees. At oral argument, however, appellants conceded that this theory of recovery was without merit because of the operation of the statute of frauds.

 3. Ratification

In their response to appellees= motion for summary judgment, appellants assert appellees ratified the actions of [CCOC and appellants] and accepted [appellants] as the true contracting parties. However, appellants again neglected to point the trial court to any summary judgment evidence. See Tex. R. Civ. P. 166a cmt.

4. Third Party Beneficiaries

Finally, in response to appellees= motion for summary judgment, appellants assert they were third party beneficiaries under the contract between CCOC and appellants. However, in their live pleadings, appellants had not pleaded a right of recovery for breach of contract based on third party beneficiary status. In order to be successful, defendant, as movant for summary judgment, is only required to defeat plaintiff=s case as pleaded. Smithkline Beecham Corp. v. Doe, 903 S.W.2d 347, 355 (Tex. 1995) (observing that pleadings must give notice of claims asserted) (citations omitted). Because appellants= live pleadings did not provide notice of their claim to recover as third party beneficiaries, appellants cannot defeat summary judgment by alleging it in their response.

Furthermore, appellants did not meet their burden by specifically pointing the trial court to evidence in the record that would support this factual assertion. It was appellants= burden to produce enough evidence to establish their entitlement to a trial. See Tex. R. Civ. P. 166a cmt. Because appellants did not direct the trial court=s attention to specific summary judgment proof of their third party beneficiary status, the trial court did not abuse its discretion in granting appellees= motion. We overrule appellants= second point of error.

VI. CONCLUSION

We affirm the judgment of the trial court granting appellees= motion for summary judgment.

/s/ John S. Anderson

Justice

Judgment rendered and Opinion filed August 22, 2002.

Panel consists of Chief Justice Brister and Justices Anderson and Frost.

Do Not Publish C Tex. R. App. P. 47.3(b).

[1] In addition to stating a claim for tortious interference with a contract, appellants separately pleaded a claim for intentional interference with a prospective economic advantage. However, appellants concede in their response to appellees= motion for summary judgment that Ainterference with a contract is tortious only if it is intentional.@ Thus, a claim for tortious interference with a contract is a claim for intentional interference with a contract. Accordingly, although these claims were separately stated in appellants= amended original petition, we will address them as one.

[2] Appellants= counsel conceded during oral argument these three claims were waived on appeal.

[3] In their petition appellants also stated a separate claim for breach of the covenant of good faith and fair dealing. Because this claim is subsumed in their breach of contract cause of action, we will not address it separately.