K.P. Meiring Construction, Inc. v. La Quinta Inns, Inc.--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00425-CV
K.P. MEIRING CONSTRUCTION, INC.,
Appellant
v.
LA QUINTA INNS, INC.,
Appellee
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2000-CI-18176
Honorable David Peeples, Judge Presiding

Opinion by: Catherine Stone, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: February 5, 2003

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in this memorandum opinion under Tex. R. App. P. 47.4 for the following reasons:

1. K.P. Meiring Construction, Inc. ("K.P.") contends that the trial court erred in granting more relief than La Quinta Inns, Inc. ("La Quinta") requested in its motion for summary judgment because K.P. asserts that La Quinta's motion did not address its negligent misrepresentation claim. K.P. included its negligent misrepresentation claim in Count 4 of its petition entitled "Fraud." La Quinta's motion asserted that the economic loss rule and the absence of an enforceable agreement bar all of K.P.'s tort claims. The motion sufficiently addressed the negligent misrepresentation claim.

2. K.P. contends that the following language in an agreement accelerating the completion date in a construction contract constituted an enforceable agreement:

In either case, La Quinta agrees to negotiate a future project with K.P. Meiring Construction, Inc.

Whether an agreement fails for indefiniteness is a question of law. America's Favorite Chicken Co. v. Samaras, 929 S.W.2d 617, 622 (Tex. App.--San Antonio 1996, writ denied). An agreement that does not contain all material terms is not enforceable. Id. The agreement to negotiate a future project is simply an agreement to agree and is not enforceable because it leaves material terms open for future negotiations, including, without limitation, the amount of K.P.'s profit. Fort Worth Ind. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000).

3. K.P. asserts that the trial court erred in granting summary judgment on its tort claims. La Quinta moved for summary judgment on K.P.'s fraud claims on the basis of the economic loss rule and the absence of an enforceable contract. With regard to the economic loss rule, summary judgment was only proper to the extent K.P. sought to recover benefit-of-the-bargain damages related to La Quinta's promise to negotiate a future project. See Hasse v. Glazner, 62 S.W.3d 795, 799-800 (Tex. 2001). Because K.P.'s petition did not limit the damages requested to benefit-of-the-bargain damages relating to that promise, summary judgment as to K.P.'s entire fraud claim was not proper based on the economic loss rule. If the parties had not entered into a binding agreement, K.P. would not be able to show detrimental reliance, and summary judgment would have been proper as to K.P.'s fraud claims. Id. at 798, However, the parties entered into an acceleration agreement as evidenced by La Quinta's letter to K.P. Although the portion of the acceleration agreement relating to the promise to negotiate a future project is not a separately enforceable agreement, K.P.'s fraud claim addresses the misrepresentations made by La Quinta to induce K.P. to enter into the acceleration agreement, not simply the promise to negotiate a future project. K.P. alleges that by inducing it to enter into the acceleration agreement, K.P.'s principal officer was forced to suspend his bidding activities and supervision of other projects, and K.P. incurred additional expenses in meeting the commitment under the acceleration agreement, including, but not limited to, personnel, labor, materials and lost business opportunities. La Quinta's motion does not contend that the acceleration agreement was not a binding, enforceable agreement. Accordingly, the trial court erred in granting summary judgment as to the fraud claims based on the absence of an enforceable agreement.

4. K.P. asserts that the trial court erred in granting summary judgment on its estoppel claims. K.P.'s quasi-estoppel claim was not raised in its pleadings and cannot be asserted for the first time on appeal. Morriss v. Enron Oil & Gas Co., 948 S.W.2d 858, 872 (Tex. App.--San Antonio 1997, no writ). With regard to K.P.'s promissory estoppel claim, K.P. seeks to enforce the promise to negotiate a future project. Because the promise is too indefinite to give rise to a contract claim, the promise is equally too indefinite to permit estoppel. Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 559 (Tex. App.--San Antonio 1998, no pet.).

5. K.P. contends that if the agreement to negotiate a future project is not enforceable as a contract, then K.P. is entitled to recover under quantum meruit. Quantum meruit does not permit recovery for the expectation of a future business advantage. Richter v. Wagner Oil Co., 90 S.W.3d 890, 895 (Tex. App.--San Antonio 2002, no pet.).

6. K.P. contends that the trial court abused its discretion in sustaining La Quinta's objections to two letters K.P. attached to its response. The letters do not contain any material terms that would make the agreement to negotiate a future project enforceable. Accordingly, any error in excluding the letters was harmless. See Interstate Northborough Partnership v. State, 66 S.W.3d 213, 220 (Tex. 2001).

The trial court's judgment as to all claims except K.P.'s fraud and negligent misrepresentation claims is affirmed. The trial court's judgment as to K.P.'s fraud and negligent misrepresentation claims is reversed except to the extent that K.P. seeks to recover benefit-of-the-bargain damages related to La Quinta's promise to negotiate a future project. The cause is remanded to the trial court for further proceedings consistent with this opinion.

Catherine Stone, Justice

PUBLISH