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United States Court of Appeals Fifth Circuit F I L E D May 23, 2003 In the Charles R. Fulbruge III Clerk United States Court of Appeals for the Fifth Circuit _______________ m 02-20818 Summary Calendar _______________ NUNN, YOEST, PRINCIPALS & ASSOCIATES, INC., DOING BUSINESS AS CROSSROAD CARRIERS, Plaintiff-Appellant, VERSUS UNION PACIFIC CORPORATION AND UNION PACIFIC RAILROAD COMPANY Defendants-Appellees. _________________________ Appeal from the United States District Court for the Southern District of Texas m H-98-CV-3396 _________________________ Before JOLLY, HIGGINBOTHAM, and SMITH, Nunn, Yoest, Principals & Associates, Inc. Circuit Judges. (“Nunn, Yoest”), appeals a summary judgment on claims of breach of contract, negligent PER CURIAM:* misrepresentation, and fraud. We affirm. * Pursuant to 5TH CIR. R. 47.5, the court has lished and is not precedent except under the limited determined that this opinion should not be pub- circumstances set forth in 5TH CIR. R. 47.5.4. Although the existence of a binding contract I. is unquestioned, CrossRoad has failed to dem- Nunn, Yoest is a shipping broker that ar- onstrate that Union Pacific failed to live up to ranges rail transportation under the business any of its provisions. name CrossRoad Carriers (“CrossRoad”). It acts as an intermediary, arranging for the CrossRoad alleges that Union Pacific shipment of its clients’ cargo on third-party rail breached the agreement by failing timely to carriers. In August 1997, CrossRoad entered perform its obligations. The principal feature into an agreement with Union Pacific Railroad of the agreement was the Union Pacific (“Union Pacific”) that set shipping rates and Revenue Incentive Plan Provision (“incentive provided for the payment of rebates to Cross- plan”), which obligated UPRR to pay a rebate Road based on the volume of shipping it to CrossRoad based on the aggregate amount arranged through UPRR. of business CrossRoad brought to UPRR in excess of $2.2 million per year. The contract CrossRoad alleges that as a result of Union does not, however, reference any specific re- Pacific’s merger with Southern Pacific Rail- quirements or obligations with respect to the road, there was a deterioration in Union Pa- delivery of CrossRoad’s shipments, but, in- cific’s service and performance. CrossRoad stead, provides that such shipments are asserts that its shipments were delayed, mis- governed by the terms of the applicable handled, and misplaced, and that Union Pacific shipping order and certain external documents, failed to deliver freight according to the times particularly UP System Exempt Circular 20B. provided on its schedules. CrossRoad became so dissatisfied that it elected to ship its cargo Circular 20B provides that “[c]arriers will on other carriers. transport the shipment in accordance with the plan of service specified on the shipping order, In October 1998, CrossRoad sued Union with reasonable dispatch but not on any Pacific and its parent company, Union Pacific particular train or schedule.” It may be true Corporation (“UPC”), for breach of contract that this provision imposes on UPRR an obli- against Union Pacific and for fraud and negli- gation to make reasonably timely delivery of gent misrepresentation against Union Pacific any particular shipment which it has agreed to and UPC. Almost three years later, the district deliver. CrossRoad, however, does not claim court entered summary judgment against damage or delay to particular freight. Instead, CrossRoad on all claims. We review a sum- it contends that its brokerage business was un- mary judgment de novo. Bridgmon v. Array dermined by Union Pacific’s generally bad per- Sys. Corp.,
325 F.3d 572, 576 (5th Cir. 2003). formance. II. According to CrossRoad, Union Pacific’s To succeed on a claim for breach of con- inefficiency and untimeliness constitutes a tract, a plaintiff must prove the defendant vio- breach of their agreement, because it prevent- lated some obligation under the agreement.2 ed CrossRoad from relying on UPRR for its shipping, and thus precluded it from realizing 2 See Prime Prods., Inc. v. S.S.I. Plastics, Inc.,
97 S.W.3d 631, 636-37 (Tex. App.SSHouston [1st Dist.] 2002, pet. denied). 2 the amounts it had anticipated based on the in- have known, at the time, that it would be centive plan. As the district court noted, the unable to perform in the manner represented. parties’ agreement did not render Union Even if we accepted this argument, to support Pacific a surety of CrossRoad’s business a cause for fraud or misrepresentation a success. plaintiff must prove that its reliance was justifiable. See Clardy Mfg. Co. v. Marine III. Midland Bus. Loans, Inc.,
88 F.3d 347, 358, CrossRoad argues that defendants are liable 360 (5th Cir. 1996). “The justifiableness of for fraud and negligent misrepresentation in the reliance is judged in light of the plaintiff’s connection with various statements, including intelligence and experience.” Scottish projections that Union Pacific’s merger with Heritable Trust, PLC v. Peat Marwick Main & Southern Pacific Railroad would benefit rail Co.,
81 F.3d 606, 615 (5th Cir. 1996). customers by improving transit times and re- CrossRoad is a sophisticated, long-time liability of service generally, and additional participant in the freight shipping industry and representations that the bottlenecking problem cannot demonstrate that its reliance on Union Union Pacific was experiencing would not Pacific’s optimistic projections was justifiable.5 have a negative impact on CrossRoad’s shipments. Claims of negligent As here hereinabove explained, and as fur- misrepresentation, however, must be based on ther explicated by the district court in its co- past or present facts.3 Consequently, a gent opinion entered June 18, 2002, the plaintiff may not base such claims on summary judgment is AFFIRMED. statements regarding future events.4 Likewise, with some exceptions, an action for fraud cannot arise from expressions of opinion or predictions about the future. Bryant v. Transcon. Gas Pipe Line Co.,
821 S.W.2d 187, 190 (Tex. App.SSHouston [14th Dist.] 1991, pet. denied). CrossRoad contends that the disputed statements concerning Union Pacific’s expected performance were expressions of present facts, because Union Pacific should 3 Allied Vista, Inc. v. Holt,
987 S.W.2d 138, 5 141 (Tex. App.SSHouston [14th Dist.] 1999, pet. See Clardy,
88 F.3d at 358, 360(stating that denied); Key v. Pierce,
8 S.W.3d 704, 709 (Tex. sophisticated plaintiffs with industry experience are App.SSFort Worth 1999, pet. denied). unable, as a matter of law, to prove justifiable reliance); cf. Presidio Enters., Inc. v. Warner 4 Allied Vista,
987 S.W.2d at 141(“[T]he sort Bros. Distrib. Corp.,
784 F.2d 674, 682 (noting of ‘false information’ contemplated in a negligent that plaintiffs were experienced executives who misrepresentation case is a misstatement of existing could not have reasonably relied on fact, not a promise of future conduct.”). misrepresentations at issue). 3
Document Info
Docket Number: 02-20818
Filed Date: 6/2/2003
Precedential Status: Non-Precedential
Modified Date: 12/21/2014