INGRID KUPER, Appellant v. IRA W. SILVERMAN, Appellee

Affirmed and Opinion issued October 13, 1989.
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-89-00096-CV
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INGRID KUPER, Appellant
V.
IRA W. SILVERMAN, Appellee
.................................................................
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. 87-6029-D
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O P I N I O N
Before Justices Whitham, Baker and Ovard
Opinion By Justice Baker
        This appeal involves a suit by Ingrid Kuper to recover a loss of inheritance expectancy because of the alleged misrepresentations and promises by Ira W. Silverman. The trial court sustained Silverman's motion for summary judgment. Kuper appeals asserting that genuine issues of material fact exist as to her four causes of action, to wit: 1) constructive fraud; 2) actual fraud; 3) promissory estoppel; and 4) tortious interference with inheritance. We disagree and affirm the trial court's judgment.
        Kuper alleges that in April, 1985, she was visiting her mother, Rae Davis, in the hospital. There, Kuper met Silverman who represented to her that he was handling her mother's legal work. Silverman represented to Kuper that he was looking out after her mother's property and he would ensure that her mother treated Kuper and her brother equally in the division of the mother's estate. He emphasized he was not representing her brother but was trying to keep him from obtaining her mother's property. Mrs. Davis died on July 10, 1986. A June 29, 1984 will, drafted by Silverman, was duly probated without contest. The will forgave three promissory notes of the brother. Kuper claims that had Silverman not represented that he would look out for her interests and that she would receive a share of her mother's estate equal to that of her brother, she would have had the opportunity to talk to her mother, and try to influence her into leaving her a more equal division under the will.
        The trial court sustained Silverman's motion for summary judgment as to all of Kuper's causes of action. The question on appeal, as well in the trial court, is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff's claim or cause of action, but is whether the summary judgment establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970). Therefore, a defendant is entitled to a summary judgment if he establishes, as a matter of law, that at least one element of a plaintiff's cause of action does not exist. See Rosas v. Buddies Food Store, 518 S.W.2d 534, 537 (Tex. 1975). If a defendant moves for a summary judgment on the basis of an affirmative defense, he must conclusively prove all essential elements of that defense. See Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972).
        Kuper's first cause of action is in constructive fraud. In order to prove constructive fraud, a party must show a relationship of trust and confidence between the parties. Although the relationship need not be a formal one, absent a formal fiduciary relationship, the evidence must show that the dealings between the parties have continued for such a time that one party is justified in relying on the other to act in his best interests. Randall v. Dallas Power & Light Co., 745 S.W.2d 397, 400 (Tex. App.--Dallas 1987), rev'd on other grounds, 752 S.W.2d 4 (Tex. 1988). See also Consolidated Gas & Equip. Co. v. Thompson, 405 S.W.2d 333, 336 (Tex. 1966). Kuper was introduced to Silverman by her brother at the hospital. They had never met before. The two only spoke for a little while, and there is nothing in the record to suggest that Kuper hired Silverman to be her attorney. Kuper contends that because Silverman was her mother's long-time attorney and because Silverman represented to Kuper that he would look out for her interest, this established a relationship of trust and confidence. In our view, this brief, per chance encounter between Kuper and Silverman at the hospital was insufficient to establish either a relationship of attorney/client or one of trust and confidence between the parties. We hold as a matter of law that Silverman has established at least one element of Kuper's constructive fraud cause of action does not exist.
        Kuper's second ground of recovery is for actual fraud. The essential elements of this cause of action are: 1) a representation, 2) that is false, 3) made with knowledge of its falsity or made recklessly without any knowledge of its truth and as a positive assertion, 4) with the intention that it be acted upon by the party, 5) that the party acted in reliance upon it, and 6) that he thereby suffered injury. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 185 (Tex. 1977); Randall, 745 S.W.2d at 400. Silverman must establish as a matter of law that no genuine issue of fact exists as to one or more of the essential elements of Kuper's actual fraud cause of action. We hold as a matter of law that the damages in this case are entirely too speculative to furnish a fact issue to be determined by a jury.
        Damages for fraud are limited to the actual loss which is a direct and proximate result of the fraud. Damages and proximate cause must be established with reasonable certainty and not be speculative. Hudson & Hudson Realtors v. Savage, 545 S.W.2d 863, 868 (Tex. Civ. App.--Tyler 1976, no writ). Assuming for purposes of this opinion that Silverman's statements are sufficient to support a fraud claim, Kuper's contention is that her reliance on Silverman's alleged statements only prevented her from discussing her mother's estate plan with her. In our view, Kuper's alleged damages are based upon pure conjecture and require the stacking of inferential speculation upon speculation. The unsupported speculation is that: 1) Silverman's alleged statements somehow prevented Kuper from discussing the will with her mother; 2) Kuper's mother would have chosen to disclose the terms of the will to Kuper; 3) Kuper would be able to change her mother's mind about the estate distribution; 4) her mother would have changed the will to give Kuper more property; and 5) her mother would have decided that one-half of her property would be the amount selected to go to Kuper. Such speculation is not a proper basis for recovery of fraud damages. See Garnor-Evans & Co. v. Webber, 363 S.W.2d 383, 385 (Tex. Civ. App.--Houston [1st Dist.] 1962, writ ref'd n.r.e.). We hold as a matter of law that Silverman has established that at least one element of Kuper's fraud cause of action does not exist.
         Kuper's third cause of action is one for promissory estoppel. She contends that Silverman promised her he would not allow her brother to persuade her mother to bequeath a disproportionate share of the estate to her brother. She alleges Silverman knew that she was unaware that her mother had executed a will in 1984 greatly favoring her brother. She further alleges that Silverman knew that she would rely on his promise and would not ask her mother about the provisions of her will. Kuper alleges she was justified in relying on Silverman's representations because of the special position of confidence and trust that Silverman created by his other representations. She further alleges that because of what Silverman said she had reason to believe that the 1982 will her mother made dividing the estate equally was still in effect. She concludes that injustice can only be avoided by enforcing Silverman's promise and requiring Silverman to place her in the position she would have occupied if she had not relied on the promise. Silverman contends that Kuper is not entitled to recover under her theory of promissory estoppel because the alleged representations were vague, the expectancy damages sought by Kuper are not recoverable under the theory of promissory estoppel and were too speculative as a matter of law, and that her assertion of promissory estoppel fails to state a claim for relief. Kuper responds that Silverman's statements needed merely to be clear enough that her reliance was justifiable and that expectancy damages are recoverable for promissory estoppel.
        We have already held that the conversation between Kuper and Silverman did not create either an attorney/client relationship or a special position of confidence and trust constituting a fiduciary relationship. Her promissory estoppel theory can only rest upon her allegation that she was justified in relying on Silverman's promise because she had reason to believe the 1982 will was still in effect, and, thus, Silverman should be required to live up to his promise and place her in a position she would have occupied if she had not relied on it. The undisputed facts show that the 1982 will had been superseded by the 1984 will which was probated.
        Silverman argues that based upon these facts, Kuper's claim of promissory estoppel seeks to create a new right to inherit a greater share of the estate. Silverman contends that promissory estoppel does not create rights--it prevents the loss of existing rights. See Hruska v. First State Bank of Deanville, 747 S.W.2d 783 (Tex. 1988). Silverman concludes that Kuper's promissory estoppel claim is erroneous as a matter of law. Kuper responds that she presented evidence that when she spoke to Silverman she still had an expectancy of one-half of the estate. She asserts that her mother drafted the 1984 will because of confusion that she (Mrs. Kuper) would have straightened out but for her reliance on Silverman's promises. Mrs. Kuper contends she does not seek to use promissory estoppel to create any right. We disagree.
        Although a will may be ambulatory, the undisputed facts show that at the time of her conversation with Silverman, her mother had already made a will providing for a different disposition of the estate from that which was contained in the 1982 will. At the time of the Kuper and Silverman conversation, the only expectancy that Kuper had was that which was provided by the 1984 will. Kuper's allegation of promissory estoppel was an attempt to create a new right--that is, an expectancy different than that which was evidenced by the 1984 will rather than to preserve a right previously acquired. Estoppel does not in itself create a cause of action but is defensive in character. Southland Life Ins. Co. v. Vela, 147 Tex. 478, 217 S.W.2d 660, 663 (1949); Jones v. Texas Gulf Sulphur Co., 397 S.W.2d 304, 307 (Tex. Civ. App.--Houston 1965, writ ref'd n.r.e.); Massachusetts Bonding & Ins. Co. v. Dallas Steam Laundry & Dye Works, 85 S.W.2d 937, 940 (Tex. Civ. App.--Eastland 1935, writ ref'd). We hold, as a matter of law, that Silverman has established that at least one element of Kuper's promissory estoppel cause of action does not exist.
        Kuper's fourth and final cause of action alleges tortious interference with inheritance. She contends that Silverman and her brother spoke to her mother regularly after their father's death. Kuper alleges that Silverman, in conspiracy with her brother, helped to persuade her mother to amend her will and forgive her brother's debts. She further alleges that although Silverman's behavior did not rise to the level of undue influence, Silverman nevertheless breached his fiduciary duty to her mother by using his influence to induce her to execute a will favoring Silverman's co-conspirator, the brother. She also alleges that Silverman committed fraud and other torts by representing to her that her mother would leave equal shares of the estate to each of the two children. She contends Silverman intentionally prevented her from receiving from her mother the inheritance that she would have otherwise received.
        Silverman alleges that Kuper's tortious interference with inheritance theory of recovery was invalid as a matter of law because the claim is governed by her mother's will which had been duly admitted to probate without contest and thus was an impermissible collateral attack on the judgment. Silverman argues that if a cause of action for tortious interference with an inheritance exists in Texas, it is limited to being asserted in a probate proceeding. Silverman contends there is a substantial body of non-Texas authority supporting this conclusion. Kuper responds by contending that there is a substantial body of non-Texas authority that does allow such a cause of action to be asserted outside of the probate system. Neither party cites a Texas case to that effect, and our research has not revealed any.
        Kuper refers us to King v. Acker, 725 S.W.2d 750 (Tex. App.--Houston [1st District] 1987, no writ). This case expressly holds that a cause of action for tortious interference with inheritance rights exists in Texas. King at 754; Pope v. Garrett, 204 S.W.2d 867, 871 (Tex. Civ. App.--Galveston 1947), rev'd on other grounds, 211 S.W.2d 559 (Tex. 1948). Silverman points out that the King case does not specifically articulate the elements of such a cause of action. However, King does quote the Restatement of Torts (Second) as follows:
 
                        
                One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.
Restatement (Second) of Torts, § 774B (1977). King, 725 S.W.2d at 754. King also notes that the commentary to § 774B of the Restatement provides in part:
 
                Thus the rule stated here applies when a testator has been induced by tortious means to make his first will or not to make it; and it also applies when he has been induced to change or remake it.
 
Restatement (Second) of Torts, § 774B comment (1977). In our view, the rule and the comment require proof that one, by tortious means, has caused a testator to make a will or not make it, or caused a testator to change a will or remake it, in order to establish a cause of action for tortious interference with inheritance rights.
        Kuper's pleadings assert that Silverman, in conspiracy with her brother, persuaded her mother to amend her will in 1984 and reduce Kuper's portion of the estate under that will. She further contends that Silverman breached his fiduciary duty to her mother by using his influence to induce the mother to execute the will favoring her brother. She contends that Silverman intentionally prevented her from receiving from her mother the inheritance that she would have otherwise received. Kuper's suit is not based upon any alleged breach of fiduciary duty by Silverman to her mother, nor is it based upon any claim of conspiracy. Her claims are based upon the statements made to her by Silverman in April of 1985. Even though Texas may recognize a cause of action for tortious interference with inheritance, her allegations of fact as to the conversation between her and Silverman in April of 1985 does not bring her within the ambit of the essential elements of such a cause of action. We hold, as a matter of law, that Silverman has established that at least one or more elements of Kuper's cause of action for tortious interference with inheritance does not exist.
        Further, if Kuper's allegations about the alleged conspiracy between Silverman and her brother were true, such allegations are nothing more or less than a claim of undue influence. In our view, that claim is one that should have been asserted as a contest to her mother's will at the time it was probated, and because it was not, the claim is barred. Tex. Prob. Code Ann. § 93 (Vernon 1980); Neill v. Yett, 746 S.W.2d 32, 35 (Tex. App.--Austin 1988, writ denied).
        We have considered all of Kuper's points of error and find them without merit and for the forgoing reasons affirm the trial court's judgment.
 
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE
 
 
 
 
Do Not Publish
Tex. R. App. P. 90
890096F.UO5
 
 
File Date[10-12-89]
File Name[890096F]