Hartford Fire Ins. Co. v. C. Springs 300, Ltd. (Tex.App.- Houston [1st Dist.]
May 29, 2008) (Radack) (construction law, bonding)
REVERSE TC JUDGMENT AND RENDER JUDGMENT: Opinion by Chief Justice Sherry Radack
Before Chief Justice Radack, Justices Alcala and Bland
01-06-00065-CV Hartford Fire Insurance Company v. C. Springs 300, Ltd.
Appeal from 270th District Court of Harris County
Trial Court Judge: Hon. Brent Gamble
CONCLUSION: Because there is legally insufficient evidence to show that C. Springs justifiably relied
on the August 8, 200 letter, and that such justifiable reliance caused damage to C. Springs, the jury's
fraud findings do not support the damages awarded.
O P I N I O N
The issue in this case is whether a three-sentence letter from a company in the business of issuing
performance and payment bonds on construction projects creates an obligation on the part of the
company to issue $17 million in bonds in connection with a construction project, or whether the letter
was a "bondability letter" indicating to the owner of the construction project that its chosen builder had
the necessary relationship with the company to obtain such bonds. We also consider whether the
owner of the construction project can recover for fraud based on the same letter. We reverse and
The Vineyards construction project
Appellee, C. Springs 300, Ltd. ["C. Springs"] is a limited partnership that was formed to construct, own,
and operate an apartment complex in Colorado Springs, Colorado called "The Vineyards." C. Springs
planned to finance The Vineyards as a "HUD transaction," meaning that its mortgage would be
insured under a U.S. Department of Housing and Urban Development program.
On July 5, 2000, C. Springs selected Williams Company, a Houston contractor, to build The
Vineyards. Having selected a contractor, C. Springs applied to HUD for HUD-guaranteed financing. On
August 1, 2000, HUD issued a deficiency letter to C. Springs indicating that the application was
incomplete. Among other things, HUD requested "an assurance of completion" from the contractor,
Williams, by August 11, 2000.
C. Springs contacted Williams about obtaining the required information, and Williams, in turn,
contacted FG Insurance Services ["FGI"], a Houston company that wrote surety bonds for several
major surety companies, including appellant, Hartford Fire Insurance Company ["Hartford"]. Williams
and FGI had a pre-existing business relationship.
On August 8, 2000, a Williams employee, Sherry Jett, contacted Kimberly Smith, an administrative
assistant to Richard Heidbrink, an agent for FGI, and explained that Williams needed FGI to sent a
letter to C. Springs to show that Williams was a bondable company. After making some changes to a
letter that Williams had used before, Smith received permission from Heidbrink to sign the letter as
The August 8, 2000 letter
The August 8, 2000 letter referenced "Vineyards at Colorado Springs Apartments" and provided in its
Williams Industries, Inc. is bonded through Hartford Fire Insurance Company which is A+ rated on AM
Best. They have a bonding line of credit of $25,000,000 single and $100,000,000 aggregate. Upon
receipt of an acceptable contract, Hartford Fire Insurance Company stands ready to issue 100%
performance and payment bonds in the full amount of the contract.
After obtaining the August 8 letter, C. Springs and Williams continued toward finalizing a HUD
construction contract, which was set to close in mid-December.
Williams's financial position declines.
Because of problems on other construction projects, Williams's financial position began to decline.
Williams lost approximately 1 million dollars between August and October 2000. On October 19, 2000,
Hartford instructed FGI that it was "suspending all bond support of Williams Industries until further
notice." In November 2000, Hartford decided that it would issue no further security bonds to Williams.
On November 7, 2000, a little over a month before the scheduled HUD closing, Williams informed C.
Springs of problems securing performance and payment bonds for the project. Williams continued to
assure C. Springs that it could work out its problems with obtaining the bonds, and the two parties
continued to work toward the December HUD closing. However, on December 4, 2000, Williams
informed C. Springs that it was not going to be able to secure the bonds by the end of 2000. As a
result, C. Springs and Williams never signed a construction contract. On December 8, 2000, Smith, of
FGI, send C. Springs a letter stating that "an acceptable contract was not received" and "[i]n the
absence of a contract and application, Hartford Fire Insurance Company did not issue any bond in
connection with the referenced project."
C. Springs hires another contractor and finishes the project
In late November 2000, after becoming aware of Williams's problem obtaining bonds, C. Springs
began negotiating with another contractor, Global Construction ["Global"], to build the project. After
Williams informed C. Springs on December 4 that it could not obtain the necessary bonds, C. Springs
moved forward with the project using Global as contractor.
Global's insurance broker also sent a letter to C. Springs regarding its ability to obtain the bonds. The
letter Global obtained provided, "Naturally, Liberty Mutual Insurance Company would expect that the
execution of any final bonds would be subject to a review of the final contract terms and conditions."
In February 2001, C. Springs closed on the HUD contract with Global as its contractor. The contract
price was $18.9 million dollars--$1.9 million dollars more than the $17 million dollars C. Springs had
planned to pay Williams.
C. Springs files suit
C. Springs subsequently brought the underlying suit alleging breach of contract against Hartford and
fraud against Hartford, FGI, Guaranty, (1) Smith, and Williams. Essentially, C. Springs's petition
alleged (1) that the August 8 letter was a contract, which Hartford breached by not later issuing the
bonds; and (2) that Hartford, through its agents, had fraudulently misrepresented to C. Springs that it
would issue the bonds.
The trial and jury verdict
C. Springs settled with Smith, nonsuited Williams, and proceeded to trial against the remaining
defendants. Two liability questions were submitted to the jury as follows:
Did the August 8, 2000 letter from Kimberly Smith to David Steidley constitute an agreement under
which Hartford agreed that it would issue 100% performance and payment bonds for the full amount of
the contract between Williams and C. Springs, if any, for the construction of the Vineyards project in
It is your duty to interpret the following language in the August 8, 2000 letter: "upon receipt of an
acceptable contract." You must decide its meaning by determining the intent of the parties at the time
the letter was written. Consider all of the facts and circumstances surrounding the making of the letter,
the interpretation of the letter by the parties, and the conduct of the parties
* * * *
* * * *
Answer Yes or No:
Did one or more of the defendants commit fraud against C. Springs?
Fraud occurs when--
a. a party makes a material misrepresentation
b. the misrepresentation is made with knowledge of its falsity or made recklessly without any
knowledge of the truth and as a positive assertion.
c. the misrepresentation is made with the intention that it should be acted on by the other party, and
d. the other party relies on the misrepresentation and thereby suffers injury
A false statement of fact or
A promise of future performance made with an intent, at the time the promise was made, not to
perform as promised.
A party's denial that he ever made a promise is a factor showing no intent to perform when he made
* * * *
Answer Yes or No for each of the following:
Kimberly Smith No
The jury awarded $4,278,117 for the difference between what C. Springs paid and would pay under
the contract with Global and what it would have paid under a contract with Williams, including "interest
expense" due to a difference in mortgage rates on debt incurred in connection with the project. The
jury also awarded $362,345 in lost rentals from the Vineyards and $96, 507 for out-of-pocket
expenses incurred by C. Springs. The total damages awarded was $4,736,969. The same measure of
damages was awarded for both the contract claim and the fraud claim.
Hartford contends that the trial court erred in denying its motion for instructed verdict and submitting
the contract issue to the jury because the August 8, 2000 letter was not, as a matter of law, an
enforceable contract. Specifically, Hartford claims that the letter is too indefinite to form a contract
because it lacks essential terms. Hartford further argues that the lack of essential terms causes the
contract to fail under the statute of frauds.
Standard of review
A denial of a motion for directed verdict may be reversed when the evidence conclusively proves a
fact that establishes a party's right to judgment as a matter of law, and there is no evidence to the
contrary. See McCarley v. Hopkins, 687 S.W.2d 510, 512 (Tex. App.--Houston [1st Dist.] 1985, no
writ). In reviewing the denial of an instructed verdict, we consider all the evidence in the light most
favorable to the nonmovant and disregard all evidence to the contrary. Harris County v. Demny, 886
S.W.2d 330, 333 (Tex. App.--Houston [1st Dist.] 1994, writ denied). Every reasonable inference is
resolved in favor of the nonmovant. Id. If there is any conflicting evidence of probative value on any
theory of recovery, the issue must go to the jury. Cliffs Drilling Co. v. Burrows, 930 S.W.2d 709, 712
(Tex. App.--Houston [1st Dist.] 1996, no writ).
A contract is legally binding only if its terms are sufficiently definite to enable a court to understand the
parties' obligations. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d 831, 846 (Tex.
2000). "The rules regarding indefiniteness of material terms of a contract are based on the concept
that a party cannot accept an offer so as to form a contract unless the terms of that contract are
reasonably certain." Id.( quoting Tex. Oil Co. v. Tenneco, Inc., 917 S.W.2d 826, 830 (Tex.
App.--Houston [14th Dist. 1994) (citing Restatement (Second) of Contracts § 33(1) (1981)), rev'd on
other grounds, 958 S.W.2d 178 (Tex. 1997)). But an agreement to make a future contract is
enforceable only if it is "specific as to all essential terms, and no terms of the proposed agreement
may be left to future negotiations." Id. (quoting Foster v. Wagner, 343 S.W.2d 914, 920-21 (Tex. Civ.
App.--El Paso 1961, writ ref'd n.r.e.)). When an agreement leaves material matters open for future
adjustment and agreement that never occur, it is not binding upon the parties and merely constitutes
an agreement to agree. Id. A contract is sufficiently definite if a court is able to determine the
respective legal obligations of the parties. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218,
221 (Tex. 1992). If an alleged agreement is so indefinite as to make it impossible for a court to fix the
legal obligations and liabilities of the parties, it cannot constitute an enforceable contract. See id.
A contract that creates a suretyship must also comply with the statute of frauds. See Tex. Bus. & Com.
Code Ann. § 26.01(a), (b)(2) (Vernon 2002 & Supp. 2007). To satisfy the statute of frauds, there must
be a written memorandum which is complete with itself in every material detail and that contains all of
the essential elements of the agreement, so that the contract can be ascertained from the writing
without resorting to oral testimony. Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978); Frost Nat'l
Bank v. Burge, 29 S.W.3d 580, 594 (Tex. App.--Houston [14th Dist.] 2000, no pet.).
Does the statute of frauds apply to an agreement to enter a surety contract?
C. Springs, however, argues that the statute of frauds does not apply to the August 8, 2000 letter
"[b]ecause the letter binds Hartford only to issue the bonds, not actually to perform in accordance with
their terms[.]" Essentially, C. Springs argues that a promise to enter a surety relationship is different
from the surety relationship itself. Thus, C. Springs argues that the promise to issue the bonds need
not contain all the essential terms of the bonds themselves. We disagree.
"A promise to sign a written contract as surety for the performance of a duty owed to the promisee . . .
is within the Statute of Frauds." Restatement (Second) of Contracts § 117 (1981). Similarly, an
agreement to make a future contract is enforceable only if it is specific as to all essential terms. Fort
Worth Indep. Sch. Dist., 22 S.W.3d at 846. A contract to enter a contract covered by the statute of
frauds must also meet the statute of frauds. See Bayor Univ. v. Sonnichsen, 221 S.W.3d 632, 635
(Tex. 2007) (holding that statute of frauds bars breach of contract claim based on oral promise to
enter contract not performable in one year). Thus, the argument that this is a contract to issue the
bonds rather than the bond contract itself is irrelevant. The same requirements apply to both.
Does the letter adequately describe the essential terms of the alleged agreement?
Thus, we turn to whether the letter in this case contains sufficient "essential terms" to comply with the
statute of frauds, or whether it fails for indefiniteness.
The letter in this case provides that, "[u]pon receipt of an acceptable contract, Hartford Fire Insurance
stands ready to issue 100% performance and payment bonds in the full amount of the contract." The
letter, however, provides little more information. Notably absent is any evidence of the consideration
that Hartford would receive, i.e., the price that Hartford would be paid for the bonds.
C. Springs argues that the missing terms can be supplied by other writings signed by Hartford or its
agents. See Adams v. Abbott, 254 S.W.2d 78, 80 (Tex. 1952) (holding that terms required by statute
of frauds could be supplied by "letters and telegrams signed by the party to be charged and
addressed to his agent or the other party to the contract, or even to a third person not connected with
the transaction."). Specifically, C. Springs points to an invoice sent by FGI employee David Cloud to
Williams employee Don Stephens to supply the missing consideration term.
The invoice in question--Plaintiff's exhibit 6--is insufficient, as a matter of law, to provide the requisite
consideration term for several reasons. First, the invoice is dated November 1, 2000 and does not
reference the August 8, 2000 letter. Although a writing satisfying the statute of frauds can be created
after an agreement, Joiner v. Elrod, 716 S.W.2d 606, 609 (Tex. App.--Corpus Christi 1986, no writ),
the later writing should refer to the earlier agreement. See Crowder v. Tri-C Res., Inc., 821 S.W.2d
393, 396 (Tex. App.--Houston [1st Dist.] 1991, no writ) (holding that writing requirement may be
satisfied with two documents if second document refers to first). This invoice does not.
Second, the invoice was sent to Williams from FGI after Hartford had informed FGI that it was
suspending the writing of bonds for Williams. See Taber v. Pettus Oil & Ref. Co., 162 S.W.2d 959, 961
(Tex. 1942) (holding that writing created after repudiation of agreement did not satisfy statute of
frauds). Third, the letter from FGI to Williams that accompanies the invoice states that it is "an
indication of pricing from Zurich Insurance Company"--not Hartford. Fourth, the invoice shows that it is
intended to cover pricing of bonds on a $19 million project, not the $17 million project claimed by
Williams. (2) Finally, the face of the invoice itself shows that it is not a memorandum evidencing a final
agreement as to price, but merely a proposal. The invoice shows that the invoice number is "TBD,"
the effective date is "TBD," and the policy number is "TBD." See Biko v. Siemens Corp., 246 S.W.3d
148, 160 (Tex. App.--Dallas 2007, pet. filed) (holding that writing indicating that it is proposal is
insufficient to comply with statute of frauds).
Because the essential terms of the August 8, 2000 agreement--particularly the consideration
term--cannot be ascertained from the writings cited by C.Springs, the agreement is too indefinite, as a
matter of law, to form a binding contract that complies with the statute of frauds. As such, the trial
court erred in submitting the breach of contract issue to the jury.
C. Springs's fraud claim rests on two alleged misrepresentations in the August 8, 2000 letter. We
address each respectively.
First, C. Springs claims that Hartford misrepresented its willingness to issue the bonds, which, in turn,
induced C. Springs into accepting the offer by partial performance. As such, C. Springs's first fraud
claim is one of fraudulent inducement. We have already held that the August 8, 2000 letter did not
create an enforceable contract. Absent an enforceable contract, C. Springs cannot claim that it was
fraudulently induced to enter such contract. Haase v. Glazner, 62 S.W.3d 795, 798 (Tex. 2001).
Second, C. Springs argues that the August 8, 2000 letter contained a misrepresentation of fact--the
amount of Williams's bondability--that C. Springs relied on in moving forward with Williams as
contractor. Specifically, the letter stated that Williams had a "bonding line of credit of $25,000,000
single and $100,000,000 aggregate." However, the evidence shows, and Hartford concedes, that this
is a "mistake," and that Williams's credit had "never exceeded $10 million for a single job and $85
million aggregate." We address whether this fraud claim (1) was pleaded, (2) is supported by sufficient
evidence, and (3) gives rise to the damages awarded on it.
Sufficiency of pleading on the issue
A trial court cannot enter judgment on a theory of recovery not sufficiently set forth in the pleadings or
otherwise tried by consent. Miller v. Towne Servs., Inc., 665 S.W.2d 143, 147 (Tex. App.--Houston [1st
Dist.] 1983, no writ); see also Tex. R. Civ. P. 301 (providing that the "judgment of the court shall
conform to the pleadings"). There are, however, exceptions to rule 301. Unpleaded claims or
defenses that are tried by express or implied consent of the parties are treated as if they had been
raised by the pleadings. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991).
The party who allows an issue to be tried by consent and who fails to raise the lack of a pleading
before submission of the case cannot later raise the pleading deficiency for the first time on appeal.
Id. Moreover, "[w]hen issues not raised by the pleadings are tried by express or implied consent of the
parties, they shall be treated in all respects as if they had been raised in the pleadings." Tex. R. Civ.
P. 67. To determine whether an issue was tried by consent, we examine the record not for evidence of
the issue, but rather for evidence of trial of the issue. Case Corp. v. Hi-Class Bus. Sys. of Am., Inc.,
184 S.W.3d 760, 771 (Tex. App.--Dallas 2005, pet. denied). A party's unpleaded issue may be
deemed tried by consent when evidence on the issue is developed under circumstances indicating
that both parties understood the issue was in the case, and the other party failed to make an
appropriate complaint. Id.
At the charge conference, Hartford objected to submitting the definition of misrepresentation as a
"false statement of fact" because "there are no pleading to support plaintiff's claim that the reference
to Williams's bonding line of credit in the August 8th letter was fraudulent, and the issue has not been
tried by consent." The trial court overruled Hartford's objection and submitted the issue to the jury.
The record shows that the issue of Williams's bonding line of credit was raised several times during
the trial and supports the trial court's conclusion that the issue was tried by consent.
Legal and factual sufficiency of the evidence
Next we turn to whether the evidence is legally and factually sufficient to support the jury's finding that
Hartford committed fraud based on its statement in the August 8, 2000 letter that Williams had a
"bonding line of credit of $25,000,000 single and $100,000,000 aggregate."
When an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not
have the burden of proof, it must demonstrate that no evidence supports the finding. Croucher v.
Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In deciding whether the evidence in support of the finding
amounts to "no evidence," the reviewing court considers only the evidence and inferences tending to
support the jury's finding, views that evidence in the light most favorable to the finding, and disregards
all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997); Havner v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 458 (Tex. 1992); see City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005) (holding that whether reviewing court starts with all or only part of
record, it "must consider evidence in the light most favorable to the verdict, and indulge every
reasonable inference that would support it," but "if the evidence allows of only one inference, neither
jurors nor the reviewing court may disregard it"). Thus, "[a] no-evidence point will be sustained when
(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of
evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered
to prove a vital fact is no more than a scintilla, or (d) the evidence conclusively establishes the
opposite of the vital fact." Merrell Dow Pharm., Inc., 953 S.W.2d at 711. "More than a scintilla" of
evidence exists to support a jury finding when the evidence supporting the finding, taken as a whole,
would enable reasonable and fair-minded people to draw different conclusions. Id.
In reviewing the factual sufficiency of the evidence to support a jury finding, the court conducts a
neutral review of all the evidence and sets aside the verdict only "if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986); see also Minucci v. Sogevalor, S.A., 14 S.W.3d 790, 794 (Tex. App.--Houston
[1st Dist.] 2000, no pet.).
To prevail on a fraud claim, a plaintiff must prove that (1) the defendant made a material
representation that was false; (2) the defendant knew the representation was false or made it
recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended to
induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably relied on
the representation, which caused injury. Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d
573, 577 (Tex. 2001). Justifiable reliance and causation are necessary elements of fraud. Prospect
High Income Fund v. Grant Thornton, LLP, 203 S.W.3d 602, 618 (Tex. App.--Dallas 2006, pet.
a. Justifiable Reliance
Hartford admits that the August 8, 2000 letter contained a false statement of fact about Williams's
bonding line of credit, but argues that there is no evidence, or insufficient evidence, to show that C.
Springs justifiably relied on the statement. Specifically, Hartford argues that "C. Springs simply could
not have relied on the August 8 letter as an unconditional, unbreakable commitment to issue bonds"
because "[n]o one could reasonably believe that such a letter binds a surety to stand ready in
perpetuity to issue bonds whenever they are called for, on whatever contract price, under whatever
conditions exist at the time." We agree.
Even if the August 8, 2000 letter had not contained a misrepresentation about Williams's bonding line
of credit, C. Springs could not have relied on the letter without a representation that Williams would
remain bondable. Put another way, the letter does not promise that Williams's credit limit, in whatever
amount, will continue past the date of the letter. Absent a promise to lend against the line of credit--a
promise that we have already held Hartford did not make--the amount of Williams's line of credit is
irrelevant. Even when a bonding line exists and credit remains on it, a surety is not bound to issue
bonds absent an agreement to do so. William Schwartzkopf, Practical Guide to Construction Contract
Surety Claims § 2.04(H) (2007). Because the August 8, 2000 letter does not represent that Williams's
line of credit, in either the true or misrepresented amount, would continue to exist into the indefinite
future, C. Springs cannot claim to have justifiably relied on any part of the letter in choosing to do
business with Williams.
To establish the element of causation in a fraud claim, a plaintiff must show that the defendant's acts
or omissions were a cause-in-fact of foreseeable losses. High Income Fund, 203 S.W.3d at 618. A
defendant's acts or omissions are a cause-in-fact if the plaintiff can show, beyond mere conjecture,
guess, or speculation, "that an act or omission was a substantial factor in bringing about an injury
which would not otherwise have occurred." Id. (quoting Marathon Corp. v. Pitzner, 106 S.W.3d 724,
727 (Tex. 2003)). In this case, C. Springs's damages were not caused by the misrepresentation
regarding the amount of Williams' bonding line of credit. Instead, C. Springs's damages were caused
by the fact that Williams became unbondable in any amount because of its deteriorating financial
condition. The misrepresentation in the August 8 letter was not a "substantial factor" in bringing about
C. Springs's injury because, regardless of the amount of the credit line stated in the letter, Williams
became unbondable. As such, the misrepresentation in the August 8 letter was not a cause-in-fact of
C. Springs's damages.
Because there is legally insufficient evidence to show that C. Springs justifiably relied on the August 8,
200 letter, and that such justifiable reliance caused damage to C. Springs, the jury's fraud findings do
not support the damages awarded.
We reverse and render judgment that C. Springs take nothing by way of its claims against Hartford.
Panel consists of Chief Justice Radack and Justices Alcala and Bland.
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