Opinion issued June 25, 2015

In The 

## Court of Appeals For The 

## First District of Texas

————————————

NO. 01
- 14
- 00643
- C V

——————————— JOSEPH GLASS AND HIL DEGARD GLASS , Appellant s V. MILES GILBERT D/B/A MG SHEET METAL WORKS , Appellee

On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Case No. 1013437

MEMORANDUM OPINION In thi s lawsuit involving construction of a metal fence , Joseph and Hildegard Glass appeal the trial court’s summary judgment in favor of Miles Gilbert d/b/a MG Sheet Metal Works. The Glasses contend that they raised fact issue s in2 support of their claims for breach of contract, deceptive trade practices, fraud, and unjust enrichment . We conclude that the summary

- judgment evidence raises f act issues on the breach of contract and unjust enrichment claims, but not on the others. We therefore affirm in part, reverse in part, and remand for further proceedings. Background In 201 1, the Glasses and Gilbert plan ned to build a steel fence to surround the Glasses’ yard

. Gilbert and Glass discussed specifications for its construction , and t he Glasses paid a part ial price of $36,000 to Gilbert

. Gilbert then purchased steel and began assembling the fence at his business, MG Sheet Metal Works.
A fter several months, Gilbert had not installed the fence in the Glasses’ backyard , and the Glasses had not paid any additional money . The Glasses then sued Gilbert for his failure to complete the fence

. They sought a return of their partial payment. Gi lbert moved for no

- evidence summary judgment, and the trial court granted it with respect to the Glasses’ deceptive trade practices, implied warranty, and fraud claims only. Gilbert again moved for summary judgment, which the trial court granted as to the remaining breach of contract and unjust enrichment claims

. The Glasses appeal the trial court’s summary judgments in favor of Gilbert for breach of contract, deceptive trade practices, fraud, and unjust enrichment.3 Discussion Standard of Review
We r eview de novo the trial court’ s ruling on a motion for summary judgment. Samuel v. Fed

. Home Loan Mortg. Corp ., 434 S.W.3d 230, 233 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) ( citing Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009)). In a traditional motion for summary judgment, the movant must establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.
See T EX
. R. C IV
. P. 166a(c) ; Little v . Tex. Dep’t of Crim

. Justice , 148 S.W.3d 374, 381 (Tex. 2004)

. When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiff’s cause of action or (2) plead and conclusively establish each essenti al element of its affirmative defense. Cathey v. Booth , 900 S.W.2d 339, 341 (Tex. 1995). We consider the summary

judgment evidence in the light most favorable to the nonmovant. Fielding, 289 S.W.3d at 848. We indulge every reasonable inference in the n onmovant’s favor. Samuel , 434 S.W.3d at 233 (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005), and Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). After an adequate time for discovery, a party may move for no

- evidence summary judgment on the ground that no evidence exists of one or more essential4 elements of a claim or defense on which the adverse party bears the burden of proof at trial. Tejada v. Gernale , 363 S.W.3d 699, 704 (Tex. App.

— Houston [1st Dist.] 2011, no pet.) (citing T EX
. R. C IV
. P. 166a(i)). The trial court must grant the motion unless the nonmovant presents more than a scintilla of evidence to raise a genuine issue of material fact on each element specified in the motion. Id. (citing
T EX
. R. C IV
. P. 166a(i) , Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006), and Merrill Dow Pharm ., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997) (“More than a scintilla of evidence exists whe n the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair

- minded people to differ in their conclusions.’”) (quoting Burroughs Wellcome Co. v. Crye , 907 S.W.2d 497, 499 (Tex. 1995))).
I. Breach of Contract Applicable Law To prevail on a breach of contract claim, “a party must establish that: (1) a valid contract existed between the plaintiff and the defendant; (2) the plaintiff tendered performance or was excused from doing so; (3) the defendant breached th e terms of the contract; and (4) the plaintiff sustained damages as a result of the defendant’s breach. ” AMS Const r . Co., Inc. v. K.H.K. Scaffolding Houston, Inc. , 357 S.W.3d 30, 41 (Tex. App.

— Houston [1st Dist.] 2011, pet. dism’d) (citing Valero Mktg. & Supply Co. v. Kalama Int’l , 51 S.W.3d 345, 351 (Tex. App.

—5 Houston [1st Dist.] 2001, no pet.). “A breach occurs when a party fails or refuses to do something he has promised to do.” Id. (quoting Dorsett v. Cross , 106 S.W.3d 213, 217 (Tex. App.

— Houston [1s t Dist.] 2003, pet. denied ). A contract must be sufficiently definite to be legally binding. T.O. Stanley Boot Co., Inc. v. Bank of El Paso , 847 S.W. 2d 218, 221 (Tex . 1992). The rules regarding the definiteness of material terms of a contract are based on the concept that a party cannot accept an offer and form a contract unless its terms are reasonably certain. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex. 2000). An agreement is not enforceable if it is so indefinite that a court cannot determine the legal obligations and liabilities of the parties.
C

ytogenix, Inc. v. Waldroff, 213 S.W.3d 479, 485 (Tex. App.

— Houston [1st Dist.] 2006, pet. denied ). Analysis Gilbert ’s motion for summary judgment contended that there is no evidence that (1) the parties formed a valid contract; (2) he breached any agreement; and (3) he caused any damages to the Glasses

. According to t he Glasses , they adduced evidence raising fact issues as to all three elements. In affidavit summary

- judgment evidence, Joseph Glass and Gilbert each averred that the Glasses had paid Gilbert a $36,000 deposit and that Gilbert had agreed to build a steel fence. Glass averred that the agreed price was6 approximately $60,000, but Gilbert averred that the agreed price was in excess of $70,000. Both proffered evidence that Gilbert purchased steel and had started to work on the fence. Joseph Glass averred that the Gl asses had not received the completed fence as Gilbert had promised them. He claimed losses in the amount of their $36,000 deposit, $5,000 spent to clear trees in their yard, loss of privacy, and loss of use of their yard. We conclude that Gilbert’s and Glass’s af fidavits raise a fact issue as to whether a valid contract existed, including conflicting evidence of an agreed purchase price and partial performance

. See T .O. Stanley , 847 S.W. 2d at 221 ; Cathey , 900 S.W.2d at 341; Tejada , 363 S.W.3d at 704 ; C ytogenix , 213 S.W.3d at 485

. Further, t heir conflicting affidavits raise a fact issue with regard to breach of contract and resulting damages. In his affidavit, Joseph Glass averred that (1) Gilbert did not request more money than the initial deposit of $36,000 in order to continue constructing the fence; (2) Gilbert did not inform the Glasses that the price of the fence would exceed the ir agreement; (3) the Glasses did not refuse to pay for the fence; and (4) they did not inform Gilbert that they wanted to cancel the fence’s construction. Gilbert p roffered a conflicting affidavit, averring that he had requested additional payment before galvanizing the fence, but that Joseph Glass7 had refused to pay him. Gilbert also proffered deposition testimony to de monstrate Glass’s refusal to pay for the next step of the construction process

. Based on the conflicting affidavits, we conclude that the Glasses have raised a fact issue as to whether Gilbert breached the contract when he did not deliver or install the f ence or refund the deposit , resulting in damages to the Glasses , who had paid $36,000 to start construction of a steel fence

. See AMS Const r . , 357 S.W.3d at 41; Cathey , 900 S.W.2d at 341. Accordingly, we reverse the trial court’s summary judgment against the Glasses on the ir breach of contract claim and remand for further proceedings. See AMS Const. , 357 S.W.3d at 41; Cathey , 900 S.W.2d at 341

. II. Deceptive Trade Practices Applicable Law To prevail on a DTPA claim, the Glasses must prove that: (1) they were consumers; (2) Gilbert engaged in at least one of the laundry list items; (3) they detrimentally relied on the false, misleading, or dec eptive act or practice; and (4) the false, misleading, or deceptive act or practice was a producing cause of
t heir injury. T EX
. B US
. & C OM
. C ODE A NN
. § 17.50 (a) (1) (West 2013); Amstadt v. U.S. Brass Corp. , 919 S.W.2d 644, 649 (Tex. 1996); B & W Supply, Inc. v. Beckman , 305 S.W.3d 10, 21 (Tex. App.

— Houston [1st Dist.] 2009, pet. denied). A party may demonstrate i ts entitlement to summary judgment on a deceptive trade8 practices claim by showing that it did not make a misrepresentation to a consumer

. See Hudspeth v. Enter

. Life Ins. Co. , 358 S.W.3d 373, 388

– 89 (Tex. App.

— Houston [1st Dist.] 2011, no pet.) (affirmin g trial court’s summary judgment on DTPA claim that insurance company made misrepresentations on insurance
contract ). Analysis Gilbert contended in his no

- evidence motion for summary judgment that the Glasses offered no evidence of a misrepresentation. T he Glasses argue the evidence raises a fact issue showing that Gilbert knowingly spent the deposit for his personal use and misrepresented that he had begun building the fence, even though he had no plans to do so. They also contend that Gilbert misrepresented the length of time it would take to complete the project

. The Glasses have not raised sufficient evidence to defeat summary judgment in support of their deceptive trade practices claim. T hey argue that the proffered bank sta tements and copies of checks show that Gilbert deposited the $36,000
check and spent the funds for his personal use. However, the bank statements and checks do not demonstrate what Gilbert purchased with the money he received fr om the Glasses. To support his claim that Gilbert had promised to build the fence without intending to build it, Joe Glass averred in his affidavit that Gilbert told him that he had not purchase d steel, but the Glasses also produced an invoice9 showing that Gilbert spent at least $1 6,000 on steel

. The Glasses did not proffer evidence that Gilbert promised to build the fence with no intent of doing so. We hold that the Glasses have not presented more than a scintilla of evidence to raise a genuine issue of material fact to support their claim of Gilbert’s misrepresentation.
See T EX
. B US
. & C OM
. C ODE A NN
. § 17.50(a) (1) ; Tejada , 363 S.W.3d at 704. The Glasses additionally proffered evidence that Gilbert started to work on the p roject. I n his affidavit, Joe Glass averred that Gilbert had vis ited his property to measure it and discussed project details with him. Glass further averred that Gilbert had agreed to complete the fence without interruption

. He provides emails from Gilbert, which state that Gilbert had been working on the project and had been slowed down because of Glass’s changing requests regarding the fence. Because the Glasses themselves adduced evidence that Gilbert spent money for fence materials and began initial steps to build the fence , the Glasses have not raised evidence of a false, misleading, or deceptive act separate from an ordinary breach of contract

. See T EX
. B US
. & C OM
. C ODE A NN
. § 17.50(a) (1) (West 2013); Amstadt , 919 S.W.2d at 649 ; s ee also Crawford v. Ace Sign, Inc. , 917 S.W.2d 12, 14 (Tex. 1996) (per curiam) (holding that misrepresentation based only on failure to perform contractual promise cannot be basis for DTPA claim); Sw. Bell Tel. Co.
v. DeL an n ey , 809 S.W.2d 493, 494 (Tex. 1991) ( “[I]f the defendant’s conduct . . . would give rise to liabi lity only because it breaches the parties’ agreement, the10 plaintiff’s claim ordinarily sounds only in contract.” ) . Accordingly, they have not met their burden to show more than a scintilla of evidence to raise a genuine issue of material fact on their dec eptive trade practices claim. See T EX
. R. C IV
. P. 166a(i); Tejada , 363 S.W.3d at 704

. III. Fraud Applicable Law Fraudulent inducement is a particular type of fraud that arises only in the context of a contract. Haase v. Glazner , 62 S.W.3d 795, 798

– 99 (Tex. 2001). A f

raud claim requires “a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was rel ied upon, and which caused injury.” Formosa Pla stics Corp. USA v. Presidio Eng’ rs & Contractors, Inc. , 960 S.W.2d 41, 47

– 48 (Tex. 1998) (quoting Sears, Roebuck & Co. v. Meadows , 877 S.W.2d 281, 282 (Tex. 1994)). A promise of future performance is an acti onable misrepresentation if the promise was made without an intention to perform at the time the promise was made. Id. at 48 (citing Schindler v. Austwell Farmers Coop. , 841 S.W.2d 853, 854 (Tex. 1992)). A party must present evidence relevant to intent a t the time the representation was made; demonstrating failure to perform a contract is not sufficient to support a claim of fraud. Id.11 Analysis In his no

- evidence summary

- judgment motion, Gilbert contended that there was no evidence that he made a false representation to the Glasses

. The Glasses responded that Gilbert knowingly spent the deposit for personal benefit and misrepresented that he had started building the fence, even though he had no plans to do so. But the Glasses raised no evidence to dem onstrate that Gilbert intended not to perform the contract at the time the parties entered into, a necessary element of a fraudulent inducement claim

. See Formosa , 960 S.W.2d at 48. Accordingly, we hold that the Glasses have not met their burden to show a genuine issue of material fact to support their fraud claim

. See T EX
. R. C IV
. P. 166a(i); Tejada , 363 S.W.3d at 704. IV. Unjust Enrichment Applicable Law Unjust enrichment is an implied

- contract theory providing that one should make restitution if it would be unjust to retain received benefits. Christus Health v. Quality Infusion Care, Inc. , 359 S.W.3d 719, 722

– 23 (Tex. App.

— Houston [1st Dist.] 2011, no pe t.). The theory is “based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted.” Id. at 723 (citing In re Kellogg Brown & Root, Inc. , 166 S.W.3d 732, 740 (Tex. 2005)). One may recover when another person has rec eived a benefit from another by fraud, duress, or the12 taking of an undue advantage. Id. (citing Heldenfels Bros., Inc. v. City of Corpus Christi , 832 S.W.2d 39, 41 (Tex. 1992)). However, when an express contract covers the subject matter of the dispute, generally there can be no recovery under a quasi

- contract theory, such as unjust enrichment. Fortune Prod

. Co. v. Conoco, Inc. , 52 S.W.3d 671, 684 (Tex. 2000); Ledig v. Duke Energ y Corp. , 193 S.W.3d 167, 176 (Tex. App.

— Houston [1st Dist.] 2006, no pet.). “When a valid agreement already addresses the matter, recovery under an equitable theory is generally inconsistent with the express agreement.” Id. The party seeking to recover from unjust enrichment has a legal remedy under the contract. Christus Health , 359 S.W.3d at 723. Analysis In his motions for summary judgment, Gilbert contended that there was no evidence of unjust enrichment with respect to the $36,000 deposit, becaus e he proffered evidence that he spent more on materials and labor than the amount of the deposit. The Glasses responded to the motion s , arguing that Gilbert was unjustly enriched because he used the deposit to pay other debts , bought “subpar steel,” and d id not work on the project

. Such evidence is sufficient to raise a fact issue to support unjust enrichment as an alternative remedy, should the Glasses not prevail on their breach of contract claim. See Fortune Prod

. , 52 S.W.3d at 684; Christus Health , 359 S.W.3d at 723.13 Conclusion We hold that the Glasses adduced facts in support of their claim s for breach of contract and unjust enrichment , but not the ir DTPA and fraud claims. Accordingly, w e affirm the trial court’s summary judgment in favor of Gil bert on the Glasses’ claims for fraud and deceptive trade practices , reverse its judgment on their claim s for breach of contract and unjust enrichment, and remand the case for further proceedings.

Jane Bland Justice Panel consists of Justices Jennings, Bland, and Brown.