Refrigeracion Y Rest v. Wal-Mart Stores Inc ( 1999 )


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  •                     UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 98-50844
    REFRIGERACION Y RESTAURANTE S.A. de C.V.
    d/b/a RYR SERVICES COMPANY,
    Plaintiff-Appellant,
    v.
    WAL-MART STORES, INC.,
    Defendant-Appellee.
    Appeal from the United States District Court
    for the Western District of Texas
    (SA-97-CV-354)
    July 13, 1999
    Before JONES, STEWART, Circuit Judges, and DUPLANTIER,* District
    Judge.
    PER CURIAM:†
    Appellant Refrigeracion Y Restaurante S.A. de C.V. appeals the
    district court’s grant of summary judgment in favor of Wal-Mart
    Stores, Inc.     We affirm.
    BACKGROUND
    Appellant     was   hired     by   Wal-Mart    de   Mexico    to   install
    refrigeration    equipment    in    Wal-Mart’s     stores   that   were   under
    construction in Mexico.       Due to a downturn in Mexico’s economy,
    Wal-Mart de Mexico quit constructing new stores and therefore no
    longer needed appellant’s services. Appellant sued Wal-Mart Stores
    Inc., the American corporation that owns 50% of Wal-Mart de Mexico,
    *
    District Judge of the Eastern District of Louisiana, sitting by
    designation.
    †
    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    opinion should not be published and is not precedent except under the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.
    alleging breach of contract, fraud, negligent misrepresentation,
    quantum meruit, and promissory estoppel.
    In appellant’s response to Wal-Mart’s motion for summary
    judgment,   it   submitted   an   affidavit   by   appellant’s   attorney,
    unauthenticated contracts between the parties, its pleadings, and
    purported deposition transcripts of various witnesses.           After Wal-
    Mart objected to the submitted evidence, the district court granted
    Wal-Mart’s motion, finding that appellant had failed to produce
    competent summary judgment evidence.           The court rejected the
    attorney’s affidavit because he was not a party to the purported
    contract and did not show that he had the personal knowledge he
    claimed to have; it rejected the International Bid Proposals
    because appellant’s counsel had failed to properly authenticate
    them; finally, it rejected the deposition transcripts because they
    did not include copies of the court reporter’s certificate of
    authenticity as required by Federal Rule of Evidence 30(f).
    Appellant argues on appeal that the district court erred in
    rejecting its summary judgment evidence and that it sufficiently
    created a fact issue on each of its claims.             Having carefully
    reviewed this appeal in light of the briefs, oral argument, and
    pertinent portions of the record, we conclude that, even if the
    deposition excerpts excluded by the district court are considered
    on appeal,2 the appellant has failed to set forth genuine issues of
    material fact sufficient to create a jury issue on any of its
    2
    Appellant does not brief on appeal and has thus waived the issue
    whether the trial court properly excluded the unauthenticated
    International Bid Form Proposals.
    2
    claims.
    STANDARD OF REVIEW
    This court reviews a grant of summary judgment de novo and
    will affirm if “there is no genuine issue as to any material fact
    and . . . the moving party is entitled to a judgment as a matter of
    law.”     Fed.     R.    Civ.   P.   56(c).       Once    the   moving   party     has
    demonstrated that there is no genuine issue of material fact, the
    nonmoving party must come forward with competent summary judgment
    evidence sufficient to create a jury issue.                 See Celotex Corp. v.
    Catrett, 
    477 U.S. 317
    , 322-23, 
    106 S. Ct. 2548
    , 2552-53 (1986).
    DISCUSSION
    Assuming    arguendo        that    appellant’s      deposition      excerpts
    submitted to the district court were competent summary judgment
    evidence, appellant failed to create a fact issue regarding either
    the existence of a contract with Wal-Mart Stores, Inc. or its
    claims     founded         in      quantum        meruit,       fraud,   negligent
    misrepresentation, or promissory estoppel.
    Appellant failed to prove that it was a party to a contract
    with Wal-Mart Stores, Inc.            Appellant did not contract with Wal-
    Mart Stores, Inc. (an American corporation); rather, it contracted
    with    Wal-Mart    de    Mexico     and   Club    Aurrera–completely       separate
    entities with separately issued stock.                  It is axiomatic that one
    cannot sue a party for breach of contract unless the parties have
    a contractual relationship.           See Autry v. Dearman, 
    933 S.W.2d 182
    ,
    189 (Tex. App.--Houston [14th Dist.] 1996, writ denied)(holding
    that    breach    of    contract     claim     failed    because   “there    was    no
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    contractual relationship”).
    Appellant next argues that it is entitled to quantum meruit
    because it rendered valuable services by transporting equipment and
    employees to the Wal-Mart construction site in Merida.             To prevail
    on a quantum meruit claim, the appellant must prove inter alia that
    it rendered valuable services for the benefit of Wal-Mart and that
    Wal-Mart accepted those services. See Vortt Explor. Co. v. Chevron
    U.S.A., Inc., 
    787 S.W.2d 942
    , 944 (Tex. 1990).                Appellant has
    failed to produce any evidence that it provided services for the
    benefit of Wal-Mart at the Merida site, nor has it shown that Wal-
    Mart accepted and enjoyed those alleged services.         Therefore, its
    quantum meruit claim fails.
    Appellant’s fraud claim likewise lacks merit.                 By merely
    alleging the facts contained in its pleadings, appellant has failed
    to produce any evidence or point to any specific fact in the record
    that creates a fact issue with respect to fraud.          See Wallace v.
    Texas Tech Univ., 
    80 F.3d 1042
    , 1047 (5th Cir. 1996).
    Appellant next asserts a claim for negligent misrepresentation
    because one of Wal-Mart’s employees allegedly told appellant’s
    representative that appellant would be kept busy with projects in
    the future as long as work quality remained satisfactory and
    appellant’s   prices   were   fair.       To   succeed   on    a   negligent
    misrepresentation claim under Texas law, appellant must prove that
    Wal-Mart “misrepresented an existing fact, not a promise of future
    conduct.”   Airborne Freight Corp., Inc. v. C.R. Lee Enterp., Inc.,
    
    847 S.W.2d 289
    , 298 (Tex. App.--El Paso 1993, writ denied)(emphasis
    4
    in original).   The Wal-Mart employee’s
    statement   simply   cannot  be   characterized   as  a
    misrepresentation of existing fact; if anything, it was
    a conditional promise of future employment.     Here, a
    condition precedent (if you do your job) qualified any
    promise of [Wal-Mart’s] future conduct (we will retain
    you as . . . [a] contractor). For these reasons, the
    tort of negligent misrepresentation was not proven in
    this case, as a matter of law.
    
    Id. Finally, appellant
    asserts a promissory estoppel claim.   To
    prevail on this claim, appellant must show that Wal-Mart made a
    promise and appellant foreseeably and detrimentally relied upon
    that promise.   See English v. Fischer, 
    660 S.W.2d 521
    , 524 (Tex.
    1983). Again, appellant has produced no competent summary judgment
    evidence creating a fact issue on its claim and instead relies
    solely on the facts alleged in its complaint.   Pleadings, however,
    are not competent summary judgment evidence and appellant’s claim
    therefore fails.   See 
    Wallace, 80 F.3d at 1047
    .
    Therefore, even assuming that appellant’s deposition excerpts
    were proper summary judgment evidence, appellant has failed to
    produce evidence sufficient to defeat Wal-Mart’s motion for summary
    judgment. The district court’s judgment is AFFIRMED.
    AFFIRMED.
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