*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5th Cir. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-20200

 

ALPHA/OMEGA INSURANCE SERVICES, INC.,

Plaintiff-Appellant,

v.

PRUDENTIAL INSURANCE COMPANY OF AMERICA,

Defendant-Appellee.

_______________________________

Appeal from the United States District Court

for the Southern District of Texas

(H-97-CV-3435)

_______________________________

January 12, 2000

Before JOLLY, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:*

Appellant Alpha/Omega Insurance Services, Inc.

(“Alpha/Omega”) appeals from the district court’s grant of

summary judgment to appellee Prudential Insurance Company of

America (“Prudential”). We affirm the summary judgment as to

Alpha/Omega’s fraud and misrepresentation claim and vacate the

summary judgment as to Alpha/Omega’s conversion and tortious

interference claim.

I. Factual and Procedural Background

In July, 1991, Prudential appointed Alpha/Omega as its
 

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Alpha/Omega is an “independent insurance agent,” which means that it is

“not owned or controlled by any insurer or group of insurers and whose agency

agreement does not prohibit the representation of other insurers.” 

Alpha/Omega Ins. Servs. Inc. v. Prudential Ins. Co. of America, No. 97-3435,

slip op. at 2 n.2 (S.D. Tex. Feb. 1, 1999). 

 

3

The “book of business” or “expirations” refers to a copy of the policy

containing the date of the insurance policy, the name of the insured, the date

of its expiration, the amount of insurance, premiums, property covered and the

terms of insurance. See id. at 8. 

2

special agent,2 thereby authorizing Alpha/Omega to write and sell

Prudential’s property and casualty insurance. 

On December 7, 1995, Prudential gave Alpha/Omega notice that

the agency relationship would terminate on December 31, 1995. 

Alpha/Omega protested: under the Texas Insurance Code, article

21.11-1(1)(a), Prudential owed Alpha/Omega six months notice and

payment of renewal commissions until December 31, 1996. In a

letter dated December 22, 1995, Prudential relented,

acknowledging that it had a “unique relationship” with

Alpha/Omega and agreeing to follow Texas law. 

In February, 1996, Prudential began contacting Alpha/Omega

clients insured by Prudential, notifying them of non-renewal, and

offering them replacement policies with other carriers. 

Alpha/Omega objected to Prudential’s conduct, and Prudential

agreed to stop soliciting Alpha/Omega’s clients.

Alpha/Omega filed suit on June 27, 1997, in Texas state

court. Though the original petition stated causes of action for

fraud and misrepresentation, conversion and tortious interference

with contract, the heart of Alpha/Omega’s complaint is that

Prudential is stealing Alpha/Omega’s book of business.3

Prudential removed to federal court on grounds of diversity. 
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The district court granted summary judgment to Prudential on

February 1, 1999. It held that Alpha/Omega had not introduced

facts to support its claim for fraud and misrepresentation, and

that Prudential owned the book of business, thus rendering

conversion and tortious interference impossible.

Alpha/Omega timely filed this appeal.

II. Standard of Review

We apply de novo review to summary judgment motions and

evaluate the case under the same standards employed by the

district court. See Shakelford v. Deloitte & Touche, LLP, 190

F.3d 398, 403 (5th Cir. 1999).

The district court should grant summary judgment where “the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law.” 

Fed. R. Civ. Proc. 56(c). “An issue is genuine if the evidence

is sufficient for a reasonable jury to return a verdict for the

nonmoving party.” Owsley v. San Antonio Indep. Sch. Dist., 187

F.3d 521, 523 (5th Cir. 1999). On summary judgment, “we consider

the evidence and all reasonable inferences to be drawn therefrom

in the light most favorable to the nonmovant[.]” Rushing v.

Kansas City S. Ry. Co., 185 F.3d 496, 505 (5th Cir. 1999).

III. Fraud and Misrepresentation

Alpha/Omega claims that Prudential committed fraud and

misrepresentation when it led Alpha/Omega to believe that it was
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seeking a principal-agent relationship for purposes of

distributing its property and casualty insurance products. 

Rather, Alpha/Omega contends, Prudential planned to use the

principal-agent relationship to gather the information necessary 

to steal Alpha/Omega’s clientele. Alpha/Omega maintains that

Prudential made misrepresentations when it: (1) failed to

disclose that it intended to compete with Alpha/Omega; (2) failed

to reveal that it intended to steal Alpha/Omega’s book of

business; and (3) promised that it would follow industry customs.

Prudential responds that the fraud and misrepresentation

claim involved only the claim that Prudential promised to pay

renewal commissions through December 31, 1996 and failed to do

so. Because Robert Wheeler (“Wheeler”), Alpha/Omega’s CEO,

conceded that Prudential did in fact make such payments,

Prudential argues that no fraud and misrepresentation occurred.

We hold that the district court properly dismissed this

claim. Alpha/Omega’s complaint identifies only one

representation as fraudulent: that Prudential would continue

paying renewal commissions through December 31, 1996. Wheeler

admits in his deposition that he received renewal commissions up

until that date. As Prudential’s representation was true, no

action for fraud and misrepresentation can lie, and the district

court did not err in granting summary judgment for Prudential. 

 As to Alpha/Omega’s contentions about other

misrepresentations on Prudential’s part, Alpha/Omega cannot

raise these additional claims of fraud for the first time on
 

4

Alpha/Omega argued that the contract in the record pertained merely to

life insurance, not property and casualty insurance, policies. It based its

argument on Wheeler’s testimony that he thought the written contract pertained

only to life insurance. But the plain language of the contract grants

Alpha/Omega authority “[t]o solicit and procure applications for all types of

insurance policies.” Without evidence of an oral agreement that the contract

at issue applied only to life insurance, Wheeler’s misunderstanding of the

contract does not create an ambiguity. See Davis v. Davis, 175 S.W.2d 226,

229 (Tex. 1943); 14 Texas Jurisprudence § 191 (3d ed. 1981). We therefore

proceed with the understanding that the contract does govern the terms of the

agency relationship.

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appeal. See Fed. R. Civ. Proc. 9(b) (requiring claims of fraud

to be pled with particularity in the complaint); see also United

States ex rel Wallace v. Flintco Inc., 143 F.3d 955, 971 (5th

Cir. 1998) (refusing to consider a new argument, raised for the

first time on appeal, unless it “presents a pure question of

law,” or, “if ignored, would result in a miscarriage of justice”

or which “meets the plain error standard.”). We therefore affirm

the summary judgment as to the fraud and misrepresentation claim.

IV. Conversion and Tortious Interference with Contract

Alpha/Omega alleges that Prudential converted Alpha/Omega’s

book of business and tortiously interfered with Alpha/Omega’s

contracts with its own clients. 

Prudential counters that it owns the book of business and

therefore cannot have converted its own property or tortiously

interfered with its own contracts.

Because we find that the question of ownership of the book

of business is a contested factual issue, we hold that summary

adjudication was improper. The question of ownership turns on

the terms set forth in the contract governing the agency

relationship.4 Here, the parties disagree as to the meaning of
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section 6(g) of the contract, which states, in its relevant part,

“All books, accounts . . . records . . . and all other items

provided by [Prudential], and relating to or connected with the

business of the [Prudential] . . . shall be the property of the

[Prudential].” 

Alpha/Omega argues that the contractual provision either

does not convey the book of business or is ambiguous as to its

meaning. Whether a contract is ambiguous in Texas is a question

of law. See Triad Elec. & Controls, Inc. v. Power Sys. Eng’g,

Inc., 117 F.3d 180, 187 (5th Cir. 1997). Alpha/Omega posits that

the clause only applies to those items provided to Alpha/Omega by

Prudential; the book of business is indisputably provided by

Alpha/Omega to Prudential. Whether “provided by [Prudential]”

modifies “all books, accounts [and] records” or merely “and all

other items” is unclear, as is Prudential’s contention that the

clause can be read, “books, accounts [and] records . . . relating

to or connected with the business of [Prudential].” Thus, the

contract is ambiguous, and the parties may introduce additional

facts of custom and practice in the industry to guide

interpretation of the provision. See Cicciarella v. Amica Mut.

Ins. Co., 66 F.3d 764, 768 (5th Cir. 1995) (“Once the document is

found to be ambiguous, the determination of the parties’ intent

through extrinsic evidence is a question of fact.”). Because we

find the contract provision ambiguous, and inasmuch as 

Alpha/Omega has submitted evidence that the disputed contractual

provision did not convey the book of business to Prudential, a
 

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Prudential argues that the compensation schedule, incorporated by

reference in section 3 of the contract, conveys the book of business to it. 

We reject this argument. While section 3 undoubtedly incorporates by

reference a compensation schedule, we have no reason to believe that it

incorporated the compensation schedule included in the record, which, on its

face, applies to all ordinary agency representations. Alpha/Omega was a

special agent.

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fact issue sufficient to survive summary judgment exists.5 

Finally, Prudential agreed to comply with Texas Insurance

Code, article 21.11-1(1)(a), even though that provision does not

apply “where the policies and the insurance business is owned by

the company and not the agent.” Tex. Ins. Code, art. 21.11-1(3). 

Prudential’s compliance with article 21.11-1(3) evidences its own

belief that it did not own Alpha/Omega’s book of business on

December 22, 1995 when it agreed, by letter, to comply with the

terms of the statutory provision, and its own understanding of

its ownership of the book of business contributes to the genuine

factual dispute that exists. In short, Alpha/Omega proffered

sufficient, specific evidence that the contract did not convey

the book of business to Prudential to survive summary judgment. 

We therefore vacate the summary judgment on the conversion and

tortious interference claims for further proceedings.

For the foregoing reasons we affirm the summary judgment

with respect to the fraud and misrepresentation claim and vacate

the summary judgment with respect to the conversion and tortious

interference claims.

AFFIRMED IN PART, VACATED IN PART.