### IN THE TENTH COURT OF APPEALS
No. 10
- 08
- 00122
- CV
PREFERRED FUEL DISTR IBUTORS, LP , Appellant v. AMIDHARA, LLC, ET AL
. , Appellee

From the 19th District Court McLennan County, Texas Trial Court No. 2006
- 1396
- 1

MEMORANDUM OPINION

Preferred F uel Distributors, L.P. (Preferred) appeals the trial court’s summary judgments in favor of Amidhara, L.L.C. (Amidhara), Bhaveshkumar P. Savalia a/k/a Bhavesh Savalia (Savalia), Kamlesh Limbabhai Gajera a/k/a Kamlesh Gajera (Gajera), Krishna Krupa, Inc. (Kr ishna Krupa), Texas Oil Products, Inc. (TO P ), Classic Star Group, LP f/k/a Classic Star Group, Inc. (Classic), Chowdhury M. Hossain a/k/a Tippoo Hossain or Sam S. Hossain (Hossain), Panamerican Fuel Distributors, LLC (Panamerican LLC), Panamerican Fuel Dis tributors, Inc. (Panamerican Inc.), and USAPreferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 2

Developers, LLC (USA Developers). We will affirm in part and reverse and remand in part

. BACKGROUND USA Developers sold a Diamond Shamrock gas station to Krishna Krupa. The Purchase and Sale Agreement signed b y the parties state s in pertinent part:

“ Gasoline Supply Agreement ” means, as a part of this Agreement

. Buyer shall execute a separate agreement with the Seller for supply of petroleum fuel products to the subject location. Seller shall furnish the “Gasol ine Supply Agreement” within 5 days of the execution of this agreement for Buyer to review. Buyer must accept or reject the GSA prior to expiration of the Inspection Period. This Purchase and Sale Agreement of the property is contingent upon acceptance of the Gasoline Supply Agreement by the Buyer and shall be enforceable if the sale closes. Thereafter, Krishna Krupa entered into a Gasoline Supply Agreement (GSA) with USA Fuel Distributors, LLC (USA Fuel). USA Fuel’s interests in the GSA were later acqui red by Panamerican LLC and then assigned to Preferred. Preferred subsequently filed suit against Amidhara, Savalia, Gajera, Krishna Krupa, TO P , Classic, Hossain, Panamerican LLC, Panamer ican Inc., and USA Developers.
The Allegations
Preferred made the fo llowing allegations in its live petition: W hen USA Fuel and
Panamerican 1 had each possessed the rights and obligations under the GSA, Krishna Krupa had been obligated to exclusively purchase gasoline from them. Hossain, Panamerican’s principal and the pe rson who assigned Panamerican’s rights under the
GSA to Preferred , had represented to Preferred that Panamerican was Krishna Krupa’s

1 Preferred does not distinguish between Panamerican LLC and Panamerican Inc. in making these allegations in its petition.Preferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 3

exclusive gasoline supplier. Krishna Krupa and its principals, Gajera and Savalia, who had both guaranteed the GSA, knew o f this fact

. A fter receiving the assignment of Panamerican’s interests in the GSA, Preferred was ready, willing , and able to supply Diamond Shamrock and/or Valero

- branded gasoline to Krishna Krupa , but Krishna Krupa refused to accept delivery of gasoline
f rom it

. Preferred no tified Krishna Krupa that it was Krishna Krupa’s authorized exclusive gasoline supplier and provided Krishna Krupa with the necessary paperwork to begin the supply of gasoline to the gas station. Hossain also notified Krishna Krupa’s principals that Panamerican had assigned its rights under the GSA to Preferred and that the assignment of the GSA to Preferred rendered Preferred as Krishna Krupa’s
authorized exclusive gasoline supplier. H owever, Krishna Krupa, by and through its princip als Savalia and Gajera, represented to Preferred that it had an exclusive gasoline supply contract with USA Fuel, not Preferred, and it thus had no obligation to purch ase gasoline from Preferred

. A lthough the gas station was imaged as a Diamond Shamrock g as station, Krishna Krupa then opened the gas station for business, selling unbranded gasoline that it had purchased not from Preferred, but from TO P and/or Classic. T his violated Diamond Shamrock’s branding agreement, and Diamond Shamrock th us stripped t he gas station of all Diamond Shamrock brand signage and images. Preferred nevertheless made every effort to salvage the situation by trying to re

- brand the gas station as
Diamond Shamrock , but Diamond Shamrock declined to do so because Krishna KrupaPreferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 4

had co m mingled Diamond Shamrock gasoline with an unbranded gasoline product
that it had purchased through Classic.
Causes of Action
Preferred initially sought a declaratory judgment against Krishna Krupa and Panamerican that (1) Preferred has the exclusive ri ght to sell gasoline to Krishna Krupa under the GSA; (2) Krishna Krupa was obligated to purchase gasoline exclusively and solely from Preferred during the term of the GSA; and (3) Preferred, under the assignment and for consideration paid, acquired all rig hts and interests to exclusively supply gasoline under the GSA to Krishna Krupa. Preferred also asserted a breach of contract cause of action against Krishna Krupa. Preferred alleged claims for breach of guarantee and tortious interference with a

contrac tual relationship against Savalia and Gajera

. Preferred also alleged claims for

t ortious interference with a contractual relationship against Amidhara , TO P , and
Classic

. P referred asserted claims for common

- law fraud and fraudulent misrepresentation, neg ligent misrepresentation, and violation of the Texas Deceptive
Trade Practices Act (DTPA) against Hossain, Panamerican LLC, Panamerican Inc., and USA Developers (collectively, the Panamerican defendants)

. 2

2 In both their no

- evidence and traditional motions for summary judgment, the Panamerican defendants treat fraudulent concealment and unjust enrichment as independent causes of action. However, as noted by Preferred in its brief, these are not independent causes of action. See R.M. Dud ley Constr. Co. v. Dawson , 258 S.W.3d 694, 703 (Tex. App.

— Waco 2008, pet. denied) (“Unjust enrichment, itself, is not an independent cause of action.”); Argyle ISD ex rel. Bd. of Trustees v. Wolf , 234 S.W.3d 229, 246 (Tex. App.

— Fort Worth 2007, no pet.) (s ame); Carone v. Retamco Operating, Inc., 138 S.W.3d 1, 10 (Tex. App.

— San Antonio 2004, pet. denied) (“Fraudulent concealment . . . is not an independent cause of action.”).Preferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 5 Motions for Summary Judgment & Trial Court Ruling s Krishna Krupa first moved for w hat appears to be a traditional summary judgment , asserting that, as a matter of law, the GSA did not set out an exclusive arrangement or require Krishna Krupa to purchase fuel solely from Preferred. Thereafter, the Panam erican defendants filed both no

- evidence and traditional motions for summary judgment. In their no

- evidence motion, the y challenge d whether there

wa s evidence to support any of the elements of any of the causes of action alleged against th em . I n their tr aditional motion, the y state d that the GSA d id not set out an exclusive agreement nor d id it require Krishna Krupa to buy fuel solely from Preferred; therefore, all of Preferred’s causes of action against them must fail. After a hearing on
the motions , th e trial court granted summary judgments in favor of all ten defendants.

AMIDHARA, SAVALIA, GAJERA, TOP & CLASSIC In its first issue, Preferred contends that the trial court erred in granting summary judgment s for Amidhara, Savalia, Gajera, TOP, and Clas sic because none of them moved for summary judgment.
In Teer v. Duddlesten , 664 S.W.2d 702, 702

- 03 (Tex. 1984) (op. on reh’g), two of the City of Bellaire’s co

- defendants moved for summary judgment, which the trial court granted. The trial court’s judgme nt, however, was drawn as a final judgment for all three defendants, despite the fact that the City “filed no motion, gave no notice, produced no affidavits, and made no showing.” Id. The supreme court subsequently reversed the trial court’s judgment, ho lding that it was error to render a final judgment for the City when it had made no motion for summary judgment. Id. at 702; accord Sw.Preferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 6

Invs. Diversified, Inc. v. Estate of Mieszkuc , 171 S.W.3d 461, 468 n.15 (Tex. App.

— Houston [14th Dist.] 2005, no pet.); Williams v. Bank One, Tex., N.A. , 15 S.W.3d 110, 116 (Tex. App.

— Waco 1999, no pet.) (“A trial court cannot grant summary judgment for a party
which has no t filed a motion therefor.”). In this case, like the City in Teer , Amidhara, Savalia, and Gajera fil ed no motion for summary judgment, gave no notice, produced no evidence, and did not participate in a summary judgment hearing; thus, the trial court erred in rendering summary judgment in their favor. Similarly, Classic and TOP filed no motion for summar y judgment and gave no notice , but t hey contend that Teer is distinguishable because, unlike the City wh ich “did nothing” and “made no showing,” they appeared and argued at the hearing on the motions for summary judgment filed by Krishna Krupa
and the Pana merican defendants. See Teer , 664 S.W.2d at 703. Classic and TOP argue that they merely failed to file a written motion and to give notice, neither of which were objected to by any party. However, we conclude that Teer cannot be distinguished
based on t he limited arguments made by Classic and TOP at the hearing on the motions for summary judgment filed by Krishna Krupa and the Panamerican defendants. The trial court thus erred in rendering summary judgment in favor of Classic and TOP
because neither mov ed for summary judgment. See id. at 702. We sustain Preferred’s
first issue.Preferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 7 KRISHNA KRUPA , HOSSAIN, PANAMERICAN LLC, PANAMERICAN INC. & USA DEVELOPERS In its second issue, Preferred contends that the trial court erred in granting summary judgment s for Krishna Krupa and the Panamerican defendants

. Standard of Review The standard of review in traditional summary judgment cases is well settled. The issue on appeal is whether the movant met its summary judgment burden of establishing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. T EX
. R. C IV
. P ROC
. 166a(c); Sw. Elec. Power Co. v. Grant , 73 S.W.3d 211, 215 (Tex. 2002). A defendant may meet this burden by conclusively negating an essential element of t he plaintiff’s case or conclusively establishing all of the necessary elements of an affirmative defense. Cathey v. Booth , 900 S.W .2d 339, 341 (Tex. 1995). When reviewing a traditional summary judgment, we take as true all evidence
favorable to the nonmo vant. Rhone

- Poulenc, Inc. v. Steel , 997 S.W.2d 217, 223 (Tex. 1999); Science Spectrum, Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997). We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Rhone

- Poulenc,
Inc. , 997 S.W .2d at 223; Science Spectrum, Inc. , 941 S.W.2d at 911. When the trial court does not specify the grounds upon which it ruled, the traditional summary judgment may be affirmed if any of the grounds stated in the motion is meritorious. W. Invs., Inc.
v. Ur ena , 162 S.W.3d 547, 550 (Tex. 2005).Preferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 8

We review a no

- evidence summary judgment under the same legal sufficiency
standard used to review a directed verdict. See T EX
. R. C IV
. P. 166a(i); Gen. Mills Rests., Inc. v. Tex. Wings, Inc. , 12 S.W.3d 827, 832

- 33 (T ex. App.

— Dallas 2000, no pet.). After an adequate time for discovery has passed, a party without the burden of proof at trial may move for summary judgment on the ground that the nonmoving party lacks supporting evidence for one or more essential elements of its claim. See T EX
. R. C IV
. P. 166a(i); Espalin v. Children’s Med. Ctr. of Dallas , 27 S.W.3d 675, 682

- 83 (Tex. App.

— Dallas 2000, no pet.). Once a proper motion is filed, the burden shifts to the nonmoving party to present evidence raising any issues of material fact. Murray v. Ford Motor Co. , 97 S.W.3d 888, 890

- 91 (Tex. App.

— Dallas 2003, no pet.). We review the evidence in the light most favorable to the nonmovant. See Johnson v. Brewer & Pritchard, P.C. , 73 S.W.3d 193, 208 (Tex. 2002).
A no

- evid ence summary judgment is properly granted if the nonmovant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of
material fact as to an essential element of the nonmovant’s claim on which the
nonmovant would have the burden of proof at trial. See T EX
. R. C IV
. P. 166a(i); Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997). If the evidence supporting a finding rises to a level that would enable reasonable, fair

- minded persons to differ in
their conclu sions, then more than a scintilla of evidence exists. Havner , 953 S.W.2d at
711. When a successful summary judgment movant presents both traditional and no

evidence grounds, we must uphold the summary judgment if it can be sustained underPreferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 9

either method. Bradford Partners II, L.P. v. Fahning , 231 S.W.3d 513, 517 (Tex. App.

— Dallas 2007, no pet.). Krishna Krupa
Preferred contends that the trial court erred in granting summary judgment in favor of Krishna Krupa because the GSA unambiguously required Krishna Krupa to purchase all of the gas station’s gasoline from Preferred

. We disagree. In construing a written contract, the primary concern is to ascertain and give effect to the parties’ intentions as expressed in the document. Frost Nat’l Bank v. L & F
Dist ribs., Ltd. , 165 S.W.3d 310, 311

- 12 (Tex. 2005). We consider the entire writing and attempt to harmonize and give effect to all the contract’s provisions so that none are rendered meaningless

. Id. at 312; J.M. Davidson, Inc. v. Webster , 128 S.W.3d 223, 2 29 (Tex. 2003). Contract terms are given their plain, ordinary, and generally accepted meaning, unless the instrument shows the parties used them in a technical or different

sense. Dynegy Midstream Servs., L.P. v. Apache Corp. , 294 S.W.3d 164, 168 (Tex. 2009) ; Heritage Res., Inc. v. Nations Bank , 939 S.W.2d 118, 121 (Tex. 1996). Preferred argues that the GSA unambiguously required Krishna Krupa to purchase all of the gas station ’s gasoline from it because the GSA states , “WHOLESELLER [sic] shall deliver t he gasoline at Diamond Shamrock Station#1380, located at 1624 West Waco Drive, Waco, Texas

. ” Preferred reasons that, if the parties ha d
intended for the contract to b e nonexclusive, the agreement would have stated “ that the specified wholesaler shall deli ver the gasoline at the gas station if Krishna Krupa decides to buy the gasoline from the specified wholesaler ” or “ that the specified wholesaler and/orPreferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 10

some other wholesaler of Krishna Krupa’s choosing shall deliver the gasoline at the gas
station. ” Howe ver, this interpretation of the contract ignores the heading immediately
above the relevant contract provision , which states “POINT OF DELIVERY.” When the heading is considered together with the contract provision, it becomes clear that the parties simply intended for the provision to specif y where any gasoline supplied by
Preferred must be delivered, not that Preferred is the sole supplier of gasoline to the gas
station. We turn then to Preferred’s alternative argument that the GSA i s ambiguous and
that i ts interpretation was thus a fact issue improper for summary judgment

. Whether a contract is ambiguous is a legal question for the court. Dynegy
Midstream Servs. , 294 S.W.3d at 168 . If the written instrument is so worded that it can be given a definite o r certain legal meaning, then it is not ambiguous. Coker v. Coker , 650 S.W.2d 391, 393 (Tex. 1983). A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation. Dynegy
Midstream Servs. , 294 S.W.3d at 168 . A contract is not ambiguous simply because the parties disagree over its meaning. Id. If the contract is ambiguous, summary judgment is improper because the interpretation of the instrument becomes a fact issue. Coker , 650 S.W.2d at 394.
Nowhere in t he GSA does it state that it is an exclusive fuel supply agreement.
Un der the section of the GSA entitled “PRODUCT PRICE TERMS,” it states, During the term of this contact [sic], the product price to [Krishna Krupa] will be one and one - half (1.5c) cents over the “ Rack Price ” (as the term is understood in the industry) . . . . [Krishna Krupa] must purchase aPreferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 11

volume of 40,000 gallons of fuel per month, for the one and one

- half cents per gallon price to stay in effect till the end of the c ontract duration. However, purchasing 40,000 gallons of fuel per month is not a minimum requirement.
Th e result if the volume of fuel purchased falls below 40,000 gallons of fuel per month is simply that “the price per gallon will be adjusted up to two (2.0c) cents per gallon over
‘Rack Price’.” The GSA does not state that Krishna Krupa must purchase a minimum volume of fuel per month. This supports interpreting the GSA as a nonexclusive fuel supply agreement. On the other hand, nowhere in the GSA does it state that it is a nonexclusive fuel supply agreement. In fact, the GSA provides Preferred extensive authority to inspect Krishna Krupa’s records in relation to the gas station’s motor fuel dispensing operation.
T he GSA includes a term requiring Kris hna Krupa to fax the tank readings, stick readings and meter readings to Preferred daily , if requested. The GSA also contains a section entitled “INSPECION [sic] OF RECORDS: AUDIT,” which states as follows: [Krishna Krupa] acknowledges that [Preferred] an d OIL CO have the right to inspect [Krishna Krupa]’s operation of the motor fuel dispensing business conducted at the premises, and in particular have the right to verify that [Krishna Krupa] is complying with all its contractual obligations contained in t his agreement. [Krishna Krupa] agrees that in order to verify standards compliance, [Preferred] and OIL CO shall be allowed to freely review all station records, including, but not limited to, all records, deliveries, sales, and inventory reconciliation. [Krishna Krupa] also agrees that [Preferred] and OIL CO may, at any time upon notice, conduct walk

- through and visual inspections of the premises.
One could reasonably conclude that these terms would not be included in the GSA if it

“ [did] not require an y purchase nor [did] it limit Krishna Krupa’s rights to purchasePreferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 12

fuel from other sources,” as Krishna Krupa contended in its motion for summary judgment.
Because it s meaning is uncertain, doubtful, and reasonably susceptible to more than one interpretation , we conclude that the GSA is ambiguous. Moreover, since the GSA is ambiguous, summary judgment as to the declaratory judgment and breach of contract claims against Krishna Krupa wa s improper ; the interpretation of the GSA is a
fact issue. See Coker , 650 S.W.2d at 394. We sustain Preferred’s second issue to the

extent it challenges the trial court’s granting of summary judgment in favor of Krishna Krupa. Hossain, Panamerican LLC, Panamerican Inc. & USA Developers
Preferred next argues that the trial cour t erred in granting both the traditional
and no

- evidence summary judgments in favor of the Panamerican defendants

. Declaratory Judgment The Panamerican defendants moved for summary judgment on Preferred’s cause of action for a declaratory judgment, arguin g that the GSA did not set out an exclusive agreement , nor did it require Krishna Krupa to buy fuel only from Preferred . However, for the reasons explained above, the GSA is ambiguous as to whether it is an exclusive agreement, and its interpretation is t hus a fact issue. See Coker , 650 S.W.2d at 394. Therefore, the trial court erred in granting summary judgment against Preferred on its declaratory judgment cause of action.
Common

- Law Fraud and Fraudulent MisrepresentationPreferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 13

A fraud claim is comprised of t he following elements: (1) the defendant made a material representation; (2) the representation was false; (3) when the defendant made the representation, he knew it was false or made it recklessly without any knowledge of its truth and as a positive asse rtion; (4) the defendant made the representation with the intent that the plaintiff should act upon it; (5) the plaintiff acted in reliance on the representation; and (6) the plaintiff thereby suffered injury. Matis v. Golden , 228 S.W.3d 301, 305

- 06 (Tex. App.

— Waco 2007, no pet.). The Panamerican defendants challenged
all of the se elements in their no

- evidence motion. In their traditional motion, they stated that they are entitled to judgment as a matter of law because they did not misrepresent any infor mation to Preferred. Defendant made a material representation : Preferred presented evidence that in early 2006 , it entered into negotiations to purchase and seek assignment of twenty fuel contracts, including the GSA, from Panamerican Inc. On behalf of P referred, shareholders and principal owners A ziz Dharani and Salim Dossani attended several meetings with Hossain as a representative for Panamerican Inc. During these meetings, Hossain stated that all twenty fuel contracts, including the GSA, were exclus ive gasoline supply contracts and that, under these contracts, the twenty retail gas stations
involved could only purchase fuel and petroleum products from Pan a merican Inc. Hossain further stated that the sale of the underlying real estate to the various buyers, including that of the gas station in this case , had been contingent upon the buyers executing exclusive gasoline supply agreements with Panamerican Inc

.Preferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 14

Preferred presented evidence that, a s a result, and relying on Hossain’s representations, it ag reed to purchase the twenty fuel supply agreements , including the GSA, from Panamerican Inc. for a substantial price. USA Developers and Panamerican Inc. were both parties to the Agreement for Sale & Purchase of Motor Fuel Supply Contract(s) , with Hossain sign ing on behalf of each. Preferred presented evidence that, s ubsequent to signing the purchase and sale agreement, Preferred also executed an A ssignment and A ssumption A greement for the twenty gas oline supply agreements and that, l eading up to its execu tion, Hossain again stated and reinforced that all twenty gasoline supply agreements that Preferred purchased were exclusive. The Assignment and Assumption Agreement was signed by Dharani as president of Preferred and Hossain as president of Panamerican L LC. Based on this evidence, there is a genuine issue of material fact as to whether the Panamerican defendants made a material representation to Preferred. See NationsBank v. Dilling , 922 S.W.2d 950, 952

- 53 (Tex. 1996) (stating that a principal may be vic ariously liable for the fraudulent conduct of its agent if the agent acted with actual or apparent authority); Kingston v. Helm , 82 S.W.3d 755, 759 (Tex. App.

— Corpus Christi 2002, pet. denied) (“The law is well

- settled that a corporate agent can be held in dividually liable for fraudulent statements or knowing misrepresentations even when they are made in the capacity of a representative of the corporation.”); Brush v. Reata Oil & Gas Corp. , 984 S.W.2d 720, 727 (Tex. App.

— Waco 1998, pet. denied) (“A misrepre sentation is material if it induces a party to enter a contract.”).Preferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 15

The representation was false : In their traditional motion, the Panamerican
defendants take the position that the “contract does not set out an exclusive agreement between the parties nor require Krishna Krupa to buy fuel from Plaintiff only.” (Emphasis added.) Furthermore, Preferred pr oduced the GSA as evidence, and w e have already concluded that the GSA is ambiguous as to whether it is an exclusive fuel supply agreement and that its int erpretation is thus a fact issue. Thus, there is a genuine issue of material fact as to whether the representation was false. When defendant made the representation, he knew it was false or made it recklessly without any knowledge of its truth and as a po sitive assertion : Preferred presented testimony from Hossain’s deposition in which he indicated that the GSA was an exclusive agreement. However, the Panamerican defendants’ traditional motion stated that the
G SA is unambiguous in that it does not set ou t an exclusive agreement between the parties nor require Krishna Krupa to buy fuel from Preferred only. Thus, there is a genuine issue of material fact as to whether the Panamerican defendants made the representation s knowing they were false or made them recklessly without any knowledge of their truth and as positive assertion s . Defendant made the representation with the intent that plaintiff should act upon it : Preferred presented evidence that Hossain made the representation s during the meetings in whic h Preferred was negotiating to purchase the twenty fuel contracts and then reinforced the representations just before the execution of the Assignment and Assumption Agreement. This is sufficient to raise a genuine issue of material fact as toPreferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 16

whether the Panamerican defendants made the representations with the intent that Preferred act upon them. Plaintiff acted in reliance on the representation : The plaintiff’s reliance must be both actual and justifiable. Atlantic Lloyds Ins. Co. v. Butler , 137 S.W.3d 199, 225

- 26 (Tex. App.

— Houston [1st Dist.] 2004, pet. denied). Preferred presented evidence that, as a result, and relying on the representations Hossain made, it agreed to purchase the twenty fuel supply agreements, including the GSA, for a substantial p rice. Preferred also presented evidence that , in this industry, fuel contracts like the GSA are generally exclusive to prevent co m mingling of petroleum products with other branded and unbranded petroleum products and to enforce compliance with the Federal Petroleum Marketing Practices Act. Thus, Preferred has raised a genuine issue of material fact as to whether it acted in reliance on the representations

. Plaintiff thereby suffered injury : Preferred presented evidence that once it acquired the twenty ga soline supply agreements, including the GSA, Krishna Krupa, the owner of the gas station, never purchased any pe troleum products from Preferred and that t his failure to purchase fuel from Preferred caused substantial damage, including loss of profits, whic h continue to incur. Thus, Preferred has raised a genuine issue of material fact as to whether it suffered injury because of the representations. Because a genuine issue of material fact exists as to every element of Preferred’s
claim for common

- law fraud and fraudulent misrepresentation, the trial court erred in granting summary judgment in favor of the Panamerican defendants on the cause of action, and, to that extent, Preferre d’s second issue is sustained.Preferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 17

Negligent Misrepresentation
The elements of ne gligent misrepresentation are: (1) a defendant provided information in the course of his business, or in a transaction in which he had a pecuniary interest; (2) the information supplied wa s false; (3) the defendant did not exercise reasonable care or comp etence in obtaining or communicating the information; (4) the plaintiff justifiably relie d on the information; and (5) the plaintiff suffer ed damages proximately caused by the reliance

. Larsen v. Carlene Langford & Assocs. , 41 S.W.3d 245, 249

- 50 (Tex. App

. — Waco 2001, pet. denied). The Panamerican defendants challenged all of these elements in their no

- evidence motion. In their traditional motion, they stated that they are entitled to judgment as a matter of law because they did not supply false informati on to Preferred.
Based on all the evidence detailed above with regard to Preferred’s cause of
action for common

- law fraud and fraudulent misrepresentation, a genuine issue of material fact exists as to every element of Preferred’s claim for negligent
misr epresentation. Thus the trial court also erred in granting summary judgment in favor of the Panamerican defendants on Preferred’s negligent misrepresentation cause
of action. Violation of the DTPA Although Preferred states generally in its brief that the Panamerican defendants were not entitled to summary judgment on either of their motion s , Preferred does not make any specific argument regarding the granting of summary judgment in favor of
the Panamerican defendants on Preferred’s cause of action for vio lat ion of the DTPA.Preferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 18

“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” T EX
. R. A PP
. P. 38.1(i). A brief’s issues that do not contain such argument “are inadequatel y briefed and present nothing
for review.” Dorton v. Chase , 262 S.W.3d 396, 400 (Tex. App.

— Waco 2008, pet. denied) ;

see T EX
. R. A PP
. P. 38.1(h), (i)

. Preferred fails to point to any specific evidence in the record that might raise a genuine issue of mate rial fact as to the essential elements of its DTPA claim. Thus, t o the extent Preferred challenges the trial court’s granting of summary judgment in favor of the Panamerican defendants on Preferred’s cause of action for violation of the DTPA, Preferred’s second issue is inadequately briefed, presents nothing for review, and is overruled

. CONCLUSION We reverse that portion of the trial court’s judgment granting summary judgment in favor of Amidhara, Savalia, Gajera, TOP, Classic, and Krishna Krupa; we

reve rse that portion of the trial court’s judgment granting summary judgment on Preferred’s declaratory judgment, common

- law fraud and fraudulent misrepresentati on, and negligent misrepresentation claims against Hossain, Panamerican LLC, Panamerican Inc., and USA Developers . W e remand this cause to the trial court for further proceedings consistent with this opinion. We affirm the trial court’s judgment in all other respects.

REX D. DAVIS JusticePreferred Fuel Distribs., LP v. Amidhara, L.L.C. Page 19

Before Chief Justice Gray, Justice Reyna , and Justice Davis A ffirmed in part; reversed and remanded in part Opinion delivered and filed January 13, 2010 [C V06]