IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JONES PARTNERS CONSTRUCTION, §

LLC, §

 §

Plaintiff, §

 § Civil Action No. 3:04-CV-1294-D

VS. §

 §

APOPKA PLAZA ASSOCIATES, LLC, §

et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

In this removed action, plaintiff Jones Partners Construction,

LLC (“Jones Partners”) sues defendant U.S. Bank National

Association (“U.S. Bank”) for fraud arising from conduct that it

contends induced it to act as project manager for a construction

project that U.S. Bank knew lacked sufficient loan proceeds to pay

for its services. U.S. Bank’s motion for summary judgment presents

the questions whether Jones Partners can establish that U.S. Bank

made actionable misrepresentations or had a duty to disclose the

information that Jones Partners alleges was fraudulently concealed.

Concluding that Jones Partners has failed to adduce evidence that

would permit a reasonable trier of fact to find in its favor on its

fraud claim and that U.S. Bank had no duty to disclose, the court

grants the motion and dismisses Jones Partners’ action against U.S.

Bank. Jones Partners also moves for leave to amend its complaint.

The court denies the motion because the amendment would be futile.

 

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1

Although the court need not discuss in detail the allegedly

improper business relationship, it notes that Jones Partners

contends that Apopka made, and U.S Bank approved (via Elliott),

over $300,000 in improper draw requests against the project loan

that ultimately left the project short of funds to pay Jones

Partners for its services as project manager.

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I

In August 2000 Firstar Bank N.A. (now named U.S. Bank) made a

loan of $1,425,000 million to defendant Apopka Plaza Associates,

LLC (“Apopka”) to purchase land and develop and construct a

shopping center in Apopka, Florida (the “project”). Tracy Elliott

(“Elliott”), an officer at U.S. Bank, had served as the primary

loan officer to Stephen R. Walker (“Walker”), an Apopka principal,

for at least five prior commercial real estate projects. Jones

Partners maintains that U.S. Bank diverted a large part of the loan

funds as part of a cover-up involving an improper personal business

deal between Elliott and Walker, and then solicited Jones Partners

to build the project, without disclosing that the remaining loan

funds were insufficient to pay for construction on the project.1

It asserts that it relied on U.S. Bank’s statements to enter into

a contract with Apopka to serve as project manager. Jones Partners

maintains that it halted construction on the project after

discovering the fraud and due to non-payment, but that U.S. Bank

was able to recoup its loan through foreclosure.

In May 2002 Elliott attended a shopping center industry

convention in Las Vegas at which she spoke with Clyde N. Jones

 

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(“Jones”), president of Jones Partners. In that discussion, Elliot

asked Jones if Jones Partners was going to build the project and

stated that U.S. Bank and Apopka “really need you to get there and

get this thing built.” She also told Jones that there was a “note

renewal” on the project and that the interest was “eating [Walker]

alive.” Finally, she mentioned that U.S. Bank and Apopka had tried

unsuccessfully to get another contractor to build the project.

In June 2002 Jones Partners entered into a contract with

Apopka to serve as construction manager for the project. It had

previously worked on at least ten other construction projects with

Walker, two of which involved U.S. Bank. Jones Partners hired a

Florida contractor to be general contractor on the project. Before

work began, Elliott had additional telephone conversations with

Jones in which she repeatedly inquired when Jones Partners would

begin work on the project and repeatedly stated that U.S. Bank and

Apopka “really need[ed]” Jones Partners to build the project.

Construction began after December 4, 2002. On January 1, 2003

U.S. Bank funded a monthly interest expense payment of $7,883.51,

thereby exhausting the total loan amount of $1,425,000 and leaving

no loan proceeds to pay for construction of the project. Soon

thereafter, Jones Partners began experiencing problems receiving

payment from Apopka for its work. In March Jones met with Walker

and discovered that the entire amount of the loan had already been

disbursed and that there were no remaining funds to pay Jones

 

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2Jones Partners has filed a jury trial demand, to which U.S.

Bank objects, and a motion for trial by jury. The court need not

reach these motions in view of its disposition of the motions for

summary judgment and for leave to amend. 

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Partners or to complete the project. In May, after attempting to

resolve the problem with U.S. Bank and Apopka, Jones Partners

stopped construction on the project, which was approximately 85%

complete. Jones Partners has been paid approximately $163,000 and,

with accrued interest, was owed approximately $740,000 under the

Apopka contract as of October 2005. 

Jones Partners subsequently brought suit in Texas state court

against Apopka for breach of contract and against U.S. Bank for

fraud. U.S. Bank removed the case to this court. On February 4,

2005 the court entered an interlocutory default judgment against

Apopka. In June 2005 U.S. Bank foreclosed on the project and sold

the property for $1,530,000. U.S. Bank moves for summary judgment,

and Jones Partners moves for leave to amend its complaint to add,

inter alia, an unjust enrichment claim.2

II

A

U.S. Bank moves for summary judgment as to Jones Partners’

fraud claim. Because U.S. Bank will not have the burden at trial

as to this claim, it can obtain summary judgment by pointing the

court to the absence of evidence to support it. See Celotex Corp.

v. Catrett, 477 U.S. 317, 325 (1986). U.S. Bank has done this in

 

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3U.S. Bank also moves for summary judgment on the ground that

Jones Partners was an unlicensed contractor in Florida and is

therefore barred from recovering for fraud under Texas law. The

court need not reach this basis for U.S. Bank’s motion.

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its motion, pointing to the absence of evidence of an actionable

misrepresentation and to the absence of evidence of particular

circumstances necessary to impose a duty on U.S. Bank to disclose

facts that Jones Partners maintains should have been disclosed.3

Jones Partners must therefore go beyond its pleadings and designate

specific facts showing there is a genuine issue for trial. See id.

at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.

1994) (en banc) (per curiam). Summary judgment is mandatory if it

fails to meet this burden. Little, 37 F.3d at 1076.

B

Jones Partners’ fraud claim is based principally on the

contention that U.S. Bank committed fraud by affirmatively giving

it a false impression concerning the availability of loan funds to

pay for construction of the project. Alternatively, it posits that

U.S. Bank committed fraud by failing to disclose that its diversion

of loan funds had left insufficient funds to pay for construction

of the project.

Concerning the affirmative misrepresentation component of

Jones Partners’ cause of action, 

 

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4

Both parties maintain that Texas law controls in this

diversity action.

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[t]o maintain a fraud cause of action against

[U.S. Bank] under Texas law, [Jones Partners]

must establish that [U.S. Bank] (1) made a

material representation, (2) that was false

when made, (3) [it] knew the representation

was false, or made it recklessly without

knowledge of its truth and as a positive

assertion, (4) [it] made the representation

with the intent that [U.S. Bank] should act

upon it, and (5) [U.S. Bank] acted in reliance

upon it and suffered injury as a result. 

Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313

F.3d 305, 322 (5th Cir. 2002) (Fitzwater, J.) (citing Beijing

Metals & Minerals Imp. /Exp. Corp. v. Am. Bus. Ctr. Inc., 993 F.2d

1178, 1185 (5th Cir. 1993) (applying Texas law)).4 Both parties

agree that Jones Partners must demonstrate that U.S. Bank made a

false representation that Jones Partners relied upon. Jones

Partners concedes that U.S. Bank, by way of Elliott, “never told

[it] a direct lie concerning the amount of loan funds available.”

P. Br. 12. But it contends that Texas law does not require a

direct lie for a party to commit actionable fraud, and that a

representation that is literally true is actionable if it is used

to create an impression that is substantially false. Jones

Partners also posits that a deceptive answer or other indirect but

misleading language can be a false representation. It maintains

that Elliott’s representations and her conduct are actionable

because they were calculated to entice Jones Partners to build the

 

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project and to give it the false impression that there would be

funds available to pay for construction, when she knew there were

insufficient funds.

Jones Partners cites evidence that Elliott solicited Jones at

the May 2002 Las Vegas convention to build the Apopka project,

asked him whether Jones Partners would build it, and stated that

“we really need you to get there and get this thing built.” P. Br.

10-11. It then relies on evidence that Elliott told Jones specific

facts about the Apopka loan: that there was a “note renewal,” that

interest on the loan was “eating [Walker] alive,” P. Br. 11, and

that there had been problems in getting a builder for the project.

Finally, it cites evidence that Elliott pressured Jones to get

started on the project, which reinforced Jones Partners’ false

impression that there would be loan funds available to pay for

construction. 

 A fact issue is genuine “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Jones

Partners’ evidence that U.S. Bank (through Elliott) committed fraud

based on the foregoing representations and conduct would not permit

a reasonable jury to find in its favor. Rather, the summary

judgment evidence would only reasonably permit the finding that

Elliott solicited Jones Partners to build a project that involved

an existing loan that had been renewed, that there was a real and

 

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urgent need for Jones Partners to build it, that interest on the

loan was causing the borrower problems, that there had been

problems getting a builder, and that Elliott had pressured Jones to

get started on the project. The jury could only reasonably find

that, far from creating the false impression that there would be

loan funds available to pay for construction, the statements and

conduct, if they conveyed any impression, painted the picture of a

problem project and a problem loan. There is no evidence in the

record that would permit the reasonable finding that Elliott made

any representations to Jones Partners, or created a false

impression through other statements or conduct, regarding

disbursements U.S. Bank had already made on the loan, the status of

the loan proceeds, or the availability of funds to complete the

project. In fact, Elliott’s statements to Jones that interest was

“eating [Walker] alive” would have effectively disclosed that loan

proceeds had already been disbursed in sufficient amounts that it

was impacting Apopka, and that its finances and ability to pay for

the project warranted some amount of scrutiny. This inference is

also supported by Elliott’s disclosure that another contractor had

turned down the project. 

Accordingly, the court grants U.S. Bank’s motion for summary

judgment as to the principal ground of Jones Partners’ fraud claim.

 

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III

A

Jones Partners contends in the alternative that, by

voluntarily disclosing partial loan information, U.S. Bank had a

duty to inform it that loan funds had been diverted and that the

remaining loan balance was inadequate to pay for Jones Partners’

work on the project. It maintains that, once Elliott told Jones at

the Las Vegas convention in May 2002 that there was a note renewal

and that interest was “eating [Walker] alive,” she was required to

disclose the whole truth, i.e., that U.S. Bank had already

disbursed more than $300,000 on false construction draw requests,

so as to avoid leaving Jones with the false impression that there

would be adequate loan funds available for construction.

B

Jones Partners recognizes that the failure to disclose a

material fact is fraudulent only if the defendant has a duty to

disclose. The existence of such a duty is a question of law. See

Cadle Co. v. Wilson, 136 S.W.3d 345, 354 (Tex. App. 2004, no pet.).

The question whether a duty to disclose even exists in Texas absent

a confidential or fiduciary relationship is debatable. As the

Fifth Circuit recently explained:

 

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A reasonable jurist might well conclude,

certainly after [Bradford v. Vento, 48 S.W.3d

749 (Tex. 2001)], that a duty to disclose

exists in Texas only in the context of a

confidential or fiduciary relationship. This

court has so held in [Coburn Supply Co. v.

Kohler Co., 342 F.3d 372 (5th Cir. 2003)], the

only Fifth Circuit case that discusses the

relevant portion of Bradford. However, apart

from Coburn, it would be fair to say that

courts after Bradford (including this court)

have not gotten the message, but have instead

continued to find that a duty to disclose can

exist in Texas absent a confidential or

fiduciary relationship. 

United Teacher Assocs. Ins. Co. v. Union Labor Life Ins. Co., 414

F.3d 558, 566 (5th Cir. 2005). Jones Partners does not contend

there was a confidential or fiduciary relationship between it and

U.S. Bank. If such a relationship is in fact required under Texas

law, Jones Partners’ alternative claim falters on that basis alone.

As in United Teacher Associates, however, this court “need not

decide whether a duty to disclose exists in Texas absent a

confidential or fiduciary relationship because, even if such a duty

did exist, [Jones Partners’] fraud claim would fail.” Id.; see

Smith v. BCE Inc., 2005 WL 3454104, at *10-*11 (W.D. Tex. Nov. 29,

2005) (observing muddled state of law on fraud by omission and

holding that plaintiff nevertheless failed to establish duty to

disclose at summary judgment). 

Moreover, the court has already concluded supra at § II(B)

that the partial disclosures made, when viewed in light of other

conduct and representations by U.S. Bank, failed to create a false

 

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impression regarding disbursements U.S. Bank had made on the loan.

It is not clear that Jones Partners can assert a separate,

alternative claim that U.S. Bank possessed a duty to disclose the

whole truth to avoid leaving Jones Partners with this same false

impression. Compare Union Pac. Res. Group, Inc. v. Rhône-Poulenc,

Inc., 247 F.3d 574, 586 (5th Cir. 2001) (observing four

circumstances where duty of disclosure arises and treating whole

truth and false impression claims as one and the same) with

Citizens Nat’l Bank v. Allen Rae Invs., Inc., 142 S.W.3d 459, 477

(Tex. App. 2004, no pet.) (on rehearing) (outlining four

circumstances where duty of disclosure arises and distinguishing

false impression from whole truth claims). The court will also

assume arguendo that a duty to disclose the whole truth exists,

even where the disclosures made did not leave an incorrect or false

impression.

C

To avoid summary judgment, Jones Partners must adduce evidence

that U.S. Bank voluntarily disclosed “some but less than all

material facts,” Rimade Ltd. v. Hubbard Enterprises, Inc., 388 F.3d

138, 143 (5th Cir. 2004) (internal quotation marks omitted), such

that “the whole truth must be disclosed,” Citizens National Bank,

142 S.W.3d at 471, 477. Although issues of materiality typically

arise in determining whether omitted information would have been

material to the decisionmaker, in the duty to disclose context, the

 

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5

For instance, partial disclosures regarding Contract A are,

in most circumstances, unlikely to give rise to a duty to disclose

information about Contract B.

6

Jones Partners directs the court by two string citations to

sixteen cases but analyzes only Citizens National Bank, 142 S.W.3d

at 477-79. See P. Br. 13-14. Having reviewed the other cases, the

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partial disclosures must likewise be “material” to the alleged

omission. See Citizens Nat’l Bank, 142 S.W.3d at 478-79

(“‘Material information’ is that which a reasonable person would

attach importance to and would be induced to act on in determining

his choice of actions in the transaction in question.”). In other

words, the partial disclosures made must reach a threshold level of

relevance to the concealed information such that “the whole truth”

must be disclosed. See Citizens Nat’l Bank, 142 S.W.3d at 477

(upholding jury verdict of fraud against defendant-bank, finding,

inter alia, that partial representations that investment was “good

deal” and that customer “should go forward” gave rise to duty to

disclose that bank was specifically not recommending investment to

other customers).5

 Conversely, a duty to disclose is not triggered

where the partial disclosures made are immaterial. See, e.g.,

Fleming v. Tex. Coastal Bank of Pasadena, 67 S.W.3d 459, 460-62

(Tex. App. 2002, pet. denied) (affirming summary judgment award to

defendant-bank, concluding, inter alia, that partial disclosures

that investment promoter was “good customer” and “he had good

business” did not give rise to duty to disclose specific banking

information about promoter).6

 

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court holds that they are generally inapposite, but it also notes

that Jones Partners fails to apply them to the facts of this case.

7

When the court hereafter addresses whether a reasonable jury

could find that U.S. Bank had a duty of disclosure, it is at all

times analyzing whether the jury could find that the limited

disclosures that could give rise to a duty of disclosure as a

matter of law. If the court assumes arguendo that the question

presented is purely one of law, it would hold, for the reasons

explained, that U.S. Bank did not have a duty to disclose

information about the status of loan disbursements or the

availability of loan funds as a result of the narrow and limited

disclosures that Elliott made to Jones.

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D

Although the question whether U.S. Bank had a duty to disclose

is one of law, the existence of a duty vel non turns on the

materiality of the partial disclosures U.S. Bank made. Cf., e.g.,

Taylor v. GWR Operating Co., 820 S.W.2d 908, 912 (Tex. App. 1991,

writ denied) (“Although the question of fiduciary relationship is

a question of law, the underlying elements of fiduciary duty are

questions for the fact finder.”). Therefore, the court must

address whether a reasonable jury could find as a factual matter

that U.S. Bank made partial disclosures that could give rise to a

duty of disclosure as a matter of law.7 

Jones Partners urges that representations about the loan’s

renewal and the effect of interest on the borrower gave rise to a

duty to disclose other information about the loan. Indeed, a

reasonable jury could find based on these disclosures that U.S.

Bank had a duty to disclose additional information concerning the

loan’s renewal or interest on the loan. Jones Partners urges,

 

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however, that the disclosures gave rise to a duty by U.S. Bank to

disclose information unrelated to the loan’s renewal or to the

effect of interest and instead to provide details related to the

availability of loan proceeds to pay Jones Partners or to how the

loan proceeds had theretofore been used (i.e., diverted).

The two limited disclosures that Elliott made would not permit

a reasonable jury to find that U.S. Bank’s conduct gave rise to a

duty to disclose the information that Jones Partners argues should

have been revealed. Elliott’s representations about the loan’s

existence and that interest was “eating [Walker] alive” are too

attenuated and irrelevant to the status of loan disbursements for

a reasonable jury to find that disclosure of one gave rise to an

obligation to disclose the other. If, for instance, Elliott had

provided greater details about the financing of the project, had

disclosed information about payments of construction draws, or had

offered Jones Partners any assurances about being paid or even

regarding the soundness of Apopka’s finances, a reasonable jury

could find that these disclosures in turn triggered a duty on U.S.

Bank’s part to disclose that loan funds had been diverted and that

little or no funds remained to pay Jones Partners. But Jones

Partners seeks to impose a broad duty to disclose specific

information about the financing of the project based on two limited

statements that a loan existed, had been renewed, and was causing

problems for the borrower. A reasonable jury could only conclude

 

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that Elliott’s statements were not material in the sense relevant

here: that they gave rise to a duty on behalf of U.S. Bank to

disclose that it had already disbursed more than $300,000 on

questionable construction draw requests.

Because the court concludes that U.S. Bank had no duty to

disclose that loan funds had been disbursed and would not be

available to pay Jones Partners in full, it concludes as a matter

of law that Jones Partners cannot recover on its alternative fraud

claim. 

IV

Before U.S. Bank filed its summary judgment motion, Jones

Partners filed a motion for leave to amend its complaint to add an

unjust enrichment theory of recovery, to update and correct the

damage calculation, and to plead that the statutory cap on punitive

damages is inapplicable. Concluding that the amendment would be

futile, the court denies the motion.

A 

Leave to amend should be freely granted when

justice requires. District courts, however,

have discretion to manage their docket.

Accordingly, although a district court's

discretion to deny leave to amend is limited,

leave to amend is not automatic.

Nevertheless, there is a strong presumption in

favor of granting leave to amend; to this end,

a district court may be reversed for failing

to provide an adequate explanation for denying

it.

Fin. Acquisition Partners L.P. v. Blackwell, ___ F.3d ___, 2006 WL

 

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330120, at *11 (5th Cir. Feb. 14, 2006) (citations omitted). A

court may deny leave to amend, however, when the amendment would be

futile. See, e.g., FDIC v. Conner, 20 F.3d 1376, 1385 (5th Cir.

1994) (holding that “leave to amend need not be granted when it

would be futile to do so”). An amendment would be futile when “the

amended complaint would fail to state a claim upon which relief

could be granted.” Stripling v. Jordan Prod. Co., 234 F.3d 863,

873 (5th Cir. 2000). 

B

Jones Partners’ motion is moot with respect to punitive

damages and an updated damage estimate in light of the court’s

determination that Jones Partners is not entitled to recover from

U.S. Bank committed fraud. 

Jones Partners’ unjust enrichment claim would also be futile

in light of the court’s summary judgment ruling. Jones Partners

specifically asserts that, in seeking leave to amend, it “does not

seek to add any new causes of action.” P. Br. 3; see also Oxford

v. Williams Cos., 137 F.Supp.2d 756, 762 (E.D. Tex. 2001) (“Unjust

enrichment is not an independent cause of action but is instead a

measure of damages which places the aggrieved plaintiff in the

position he occupied prior to dealing with the defendant.”); City

of Corpus Christi v. Heldenfels Bros., Inc., 802 S.W.2d 35, 40

(Tex. App. 1990) (“Unjust enrichment is probably not an independent

cause of action but merely characterizes the result whereby one

 

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fails to make restitution of benefits under circumstances which

give rise to an implied or quasi-contractual obligation to return

such benefits.”), aff’d, 832 S.W.2d 39 (Tex. 1992). Accordingly,

even if Jones Partners amended its complaint to include an unjust

enrichment contention on the basis it proposes, it would fail to

state any causes of action against U.S. Bank following the

dismissal of the fraud claim. 

Moreover, Jones Partners asserts that U.S. Bank would be

“unjustly enriched” because, “as a result of the recent foreclosure

sale, [U.S. Bank] has received money directly resulting from the

improvements constructed by [Jones Partners] on the property in

question, for which [Jones Partners] has never been paid due to

[U.S. Bank’s] fraud.” P. Br. 3. Jones Partners’ unjust enrichment

assertion is premised on U.S. Bank’s alleged fraud concerning Jones

Partners’ failure to receive payment for the construction. See

Burlington N. R.R. v. Sw. Elec. Power Co., 925 S.W.2d 92, 97 (Tex.

App. 1996) (“Unjust enrichment is typically found under

circumstances in which one person has obtained a benefit from

another by fraud, duress, or the taking of an undue advantage.”),

aff’d, 966 S.W.2d 467 (Tex. 1998). The court has concluded,

however, that Jones Partners has failed to present a genuine issue

of fact concerning this fraud claim. The dismissal of the fraud

claim thus eliminates the predicate for Jones Partners’ request for

leave to add an unjust enrichment claim. 

 

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Accordingly, Jones Partners’ motion for leave to amend its

complaint is denied.

V

As the court notes above, on February 4, 2005 the court

entered an interlocutory default judgment against Apopka. The

order provides that Jones Partners shall recover from Apopka “such

sum of money as may be proved on the trial of this cause . . . .”

Feb. 4, 2005 Order at 1. The order also provides that at the time

of trial, or at “such other time as may be proper, a final judgment

shall be rendered, and this interlocutory judgment shall be

finalized in accord with that judgment.” Id. at 2.

Because there will be no trial of this case, the court directs

Jones Partners to contact the judicial secretary to arrange to

appear before the court to present its evidence in support of its

damages claim against Apopka.

* * *

For the reasons set out, the court grants U.S. Bank’s motion

for summary judgment, denies Jones Partners’ motion for leave to

amend its complaint, and dismisses with prejudice its action U.S.

Bank by Rule 54(b) final judgment filed today.

SO ORDERED.

March 27, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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