Plaintiff’s Response to Defendants’ Motion for Summary Judgment

Description: This case arose after plaintiff became interested in purchasing a gas marketing company.  Prior to borrowing $6 million to fund the purchase, plaintiff met with Reliant and received assurances that Reliant was entering into a lucrative contract with the gas marketing company.  After plaintiff purchased the company based on Reliant’s assurances, Reliant refused to sign the contract, forcing the newly acquired gas marketing company to declare bankruptcy.  Reliant moved for summary judgment on Plaintiff’s claims for fraud, negligent misrepresentation and promissory estoppels.  The court denied the motion. This brief was filed by Heygood, Orr & Pearson on behalf of their client.

PLAINTIFFS’ RESPONSE TO DEFENDANT’S

MOTION FOR SUMMARY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW Plaintiffs Barnett Family Limited Partnership and Mark Strawn and file this their Response to Defendant Reliant Energy Services, Inc.’s Motion for Summary Judgment, and would respectfully show the Court as follows:

INTRODUCTION

In the summer of 2000, Plaintiffs became interested in purchasing a gas marketing company known as Torch-Rally.  Before borrowing approximately $6 million for the purchase, Plaintiffs wanted to confirm that Torch-Rally had an ongoing business relationship with Reliant Energy Services, Inc. (“Reliant”) and that Reliant and Torch-Rally were about to enter into a new agreement which would greatly expand that relationship.  As a result, Mark Strawn and Michael Barnett traveled to Houston on September 6, 2000 to meet with representatives of Reliant.  During that meeting, the Reliant employees stated that the key terms of the new agreement were acceptable to Reliant and that the agreement would be signed by the end of the month.  Unbeknownst to Plaintiffs, the terms of the new agreement had already been rejected by Reliant’s legal department and Reliant therefore had no intention of signing the agreement.

Three weeks later, Plaintiffs called Reliant and told them they were about to close their loan to purchase Torch-Rally and needed to confirm that the agreement would be signed shortly.  Reliant employees told them that the person who needed to sign the agreement was out, that he would be back the following Monday and that the agreement would be signed when he returned.  Relying on Reliant’s repeated assurances that the agreement would be signed, Plaintiffs closed their loan and purchased Torch-Rally.  Unfortunately, Reliant never signed the agreement and Torch-Rally was eventually forced to file for bankruptcy.

Reliant has filed a no-evidence motion for summary judgment (the “Motion”) on all of Plaintiffs’ claims.  The Motion should be denied as to Plaintiff’s fraud and negligent misrepresentation claims because there is ample evidence that Reliant made misrepresentations of existing fact to Plaintiffs.  Moreover, the Motion should be denied as to Plaintiffs’ fraud claim because there is ample evidence Reliant made a promise to sign the new agreement with Torch-Rally that it had no intention of performing and ample evidence that Reliant intended to induce reliance on the part of Plaintiffs.  Finally, the Motion should be denied as to all of Plaintiffs’ claims because there is a fact issue as to whether Plaintiffs’ reliance on Reliant’s misrepresentations was justifiable.

FACTS

I.          During the summer of 2000, Mike Parks solicited buyers for Torch-Rally, including   Mark Strawn and Michael Barnett.

In 1999, a gas marketing business based in Tyler, Texas, and operated by Mike Parks was purchased by Torch Enerstar Holding Co., L.L.C., and Bistineau Partners, Ltd., and became “Torch-Rally, L.P.” (hereinafter “Torch-Rally” or “Rally”).  Deposition of Mike Parks attached hereto as Exhibit A at pp. 29-30.  Parks continued to run the daily operations of Torch-Rally, which involved procuring natural gas from producers for resale to large purchasers such as Defendant Reliant.  Parks Depo at pp. 29-31, 88.  In August 1999, Torch-Rally executed a contract with Reliant pursuant to which Torch-Rally sold 50,000 MMBtu of natural gas per day to Reliant on a firm basis for a five-year term.  Parks Depo at pp. 50-51.  Around the same time, Reliant extended a loan to Torch-Rally in the amount of $1 million.  Parks Depo at pp. 75-77.

In spring of 2000, the owners of Torch-Rally – Bistineau and Torch – informed Mike Parks that they each wanted to sell their interests in the partnership, and Parks began to solicit potential buyers.  Parks Depo at pp. 39, 247-50.  In summer 2000, Parks approached Plaintiff Mark Strawn, who was the general manager of Fair Oil Company in Tyler, to see if his employer was interested in purchasing Torch-Rally.  Deposition of Mark Strawn attached hereto as Exhibit B at pp. 19-20.  After meeting with Parks several times, and meeting with Reliant employees to discuss Reliant’s relationship with Torch-Rally, Strawn recommended that Fair Oil Company purchase Torch-Rally.  Strawn Depo at pp. 35-36.  Fair Oil Company declined, and Strawn left his employment to begin working with Parks in trying to find a buyer for Torch-Rally.  Strawn Depo at pp. 36-39; Parks Depo at pp. at 257-58.

On or about August 30, 2000, Strawn and Parks brought the sale of Torch-Rally to the attention of Plaintiff Michael Barnett, a banker and real estate investor in Dallas, Texas, who serves as President of the general partner of Plaintiff Barnett Family Limited Partnership, the investment vehicle for Barnett’s family.  Parks Depo at pp. 265-68; Deposition of Michael Barnett attached hereto as Exhibit C at pp. 50-51.  At this meeting, Parks represented that Torch-Rally and Reliant were working on a new contract that would greatly expand their relationship and the volume of gas Torch-Rally sold to Reliant.  Barnett Depo at pp 44, 63, 71-72; Parks Depo at pp. at 269-72.

II.        On July 26, 2000, Parks’ attorney sent an Agreement to Reliant greatly expanding the relationship between Reliant and Torch-Rally; Reliant immediately decided it could not agree to its terms.

On July 26, 2000, Parks’ attorney, Mike Carroll, sent to Reliant a proposed Global Purchase and Aggregation Agreement between Torch-Rally and Reliant (the “Agreement”) which would greatly expand the relationship between Reliant and Torch-Rally. Parks Depo at pp. 95-96, 149-51; Agreement attached hereto as Exhibit D.  At the same time that Parks’ attorney provided a copy of the Agreement to Reliant, Parks provided the Agreement to Barnett for his review.  Barnett Depo at pp. 133-134, 63-64.  Among other things, the Agreement contained the following provisions:

• A 10-year term;
• An anticipated volume of natural gas to be sold by Rally to Reliant of “at least one billion cubic feet per day.”
• Credit support from Reliant that was reasonably required by Rally’s suppliers.

Exhibit D at pp. 1, 2.

Unbeknownst to Plaintiffs, the terms of the Agreement were completely unacceptable to Reliant from the moment it was received.  Reliant attorney Steve Williams testified about the Agreement that “I think upon its receipt it was clear within Reliant that the terms and conditions outlined in this document were unacceptable to Reliant.” Deposition of Steve Williams attached hereto as Exhibit E at pp. 8-9.  Williams also confirmed that the terms of the Agreement were unacceptable to Reliant employees David Dunnavant and Kim Norman.  Williams Depo at p. 11.  Specifically, Reliant was not willing to enter into an agreement with Rally that would obligate it to purchase a fixed quantity of gas for a fixed period of time and to extend credit support to Rally; in other words, Rally had a problem with the volume, term and credit support provisions of the Agreement.  Williams Depo at pp. 6, 122-23, 170-72, 205.  Reliant employee David Dunnavant testified that Reliant legal vetoed the Agreement “[p]retty much upon its first reading.”  Deposition of David Dunnavant attached hereto as Exhibit F at pp. 31-2.

Because the Agreement was unacceptable to Reliant “upon its first reading,” Reliant employee Pat Strange never sought approval for the Agreement from the people above him in the chain of command.  Williams Depo at p. 56.   Nor did the legal department at Reliant provide Reliant employee Kim Norman with an analysis of the appropriate legal structure to use to consummate the Agreement as he had requested.  Williams Depo at p. 63.  And Reliant did not even bother to send Rally a counter-proposal to the Agreement because, as Steve Williams testified, “our conceptual understanding of where we wanted to go was so far afield from what was represented in the global agreement, that it didn’t make sense to red line, mark up the document, and return it.”  Williams Depo at p. 201.

III.       On September 6, 2000, Barnett, Strawn and Parks met with Dunnavant and   Norman of Reliant, who told them that the Agreement would be signed by the end of the month.

A.        At the time of the September 6, 2000 meeting, Reliant knew that Barnett and Strawn were considering a substantial investment in Rally and needed  confirmation of the new Rally/Reliant Agreement before making that investment.

Prior to the September 6 meeting, Mike Parks called Dunnavant or Norman to discuss the purpose of the meeting.  Parks testified that he explained the need for the meeting as follows:

I simply indicated that the – that it looked as if there was an individual that was – was looking at being our partner and taking – assuming Torch and Bistineau’s – or buying them out, and that that was not going to happen unless we came down and had a face to face and that they could ask some questions and be satisfied with the progress, with the status of Rally and Reliant discussions pursuant to this relationship, and so they agreed to have the meeting to allow Mr. Barnett to come down and basically ask questions and meet these people and talk about that – that effort at a relationship.

Parks Depo at p. 287.  Parks conveyed this same understanding to Reliant’s Kim Norman the day

of the meeting in a phone conversation taped by Reliant:

MR. PARKS:        One of the things that I want to emphasize to Mr. Barnett and Mr. Wagner when they come in –

MR. NORMAN:   Uh-huh.

MR. PARKS:        – is the fact that y’all are standing ready to do another hundred million a day deal and all you’re waiting on is us to get our act together as far as –

MR. NORMAN:   Well –

MR. PARKS:        – getting separated.

MR. NORMAN:   Absolutely.  I agree with that.

MR. PARKS:        Well, I know you do.  That’s why I’m not asking you to strain the truth.  I’m just asking you to remember to say something about it.

MR. NORMAN:   Well, absolutely.  That’s the whole crux of this thing, you know.  I mean –

MR. PARKS:        Si, senor.

Transcript of September 6, 2000 telephone call attached hereto as Exhibit G at pp. 2-3.

On September 6, 2000, Barnett, his long-time accountant, John Wagner, Strawn, and Parks traveled to Reliant’s office in Houston.  Upon arrival, they were given a tour around Reliant’s trading floor by David Dunnavant and Kim Norman, Reliant employees who had been discussing the proposed new contract with Parks.  Barnett Depo at pp. 112-113.  After the tour, Plaintiffs informed Dunnavant and Norman that they were considering a substantial investment in Torch-Rally and inquired as to Reliant’s current and future business relationship with Torch-Rally.  Barnett Depo at p. 114; Strawn Depo at pp.  83-84.  As Barnett’s accountant, John Wagner, who attended the meeting, testified:

Q.        And Mr. Barnett made it clear that he was interested not only in knowing what Rally’s relationship with Reliant was, but also where it was going.

A.        That’s correct.

Q.        He wanted to know what business Rally and Reliant intended to do together in the future, did he not?

A.        Yes, sir.

Q.        And there were discussions about this particular ten-year term agreement that the parties were negotiating?

A.        Yes, sir.

Q.        And did Mr. Barnett make it clear to them that he was interested in the terms and provisions of this contemplated relationship as being important to his decision and decision of Mr. Strawn and Mr. Parks to go through with this purchase?

A.        Yes, he did.

Deposition of John Wagner attached hereto as Exhibit H at pp. 149-50.

Barnett specifically told the Reliant employees that he was going to take out a multi-million dollar loan to buy Rally, that the loan was going to fund on September 29th and that “we needed the global agreement at that point.”  Barnett Depo at pp. 113-14, 147-48; Parks Depo at p. 311 (“In other words, the Reliant people had had it put to them that Mark Strawn, Mike Parks and Mike Barnett were — were individually and then the Barnett family interests were going on the dotted line for indebtedness on this bank note, and that before that could happen, we either needed an executed agreement or we needed to have the agreement that had the — those essential elements that was ready for execution.”).  As Parks explained, “the purchase price that was going to be required for Rally was way too high if we were not going to be able to make this deal, and so [Barnett] just — he just needed to know how they — how they stood on it.”  Parks Depo at p. 290.

Reliant employee David Dunnavant admitted that Parks described Barnett as “either an investor or potential investor” in Rally and that he understood that Barnett was meeting with Reliant to “explore what relationship existed between Rally and Reliant” and to “gauge the potential business between Rally and Reliant into the future.”  Dunnavant Depo at p. 34.  Reliant attorney Steve Williams similarly admitted that he knew that Mike Parks was looking for an investor to help him extricate himself from his relationship with Rally.  Williams Depo at p. 146.  Reliant clearly knew at the time of the September 6, 2000 meeting that Plaintiffs were considering a multi-million dollar purchase of Torch-Rally and wanted confirmation from Reliant that the proposed Rally/Reliant agreement would be signed before they made that purchase.

B.        At the time of the September 6, 2000 meeting, Reliant had a clear financial motive to encourage Barnett and Strawn’s investment in Rally.

At the time of the September 6 meeting, Reliant had a clear financial motive to encourage Barnett and Strawn’s investment in Rally.  As set forth above, Reliant knew that Barnett and Strawn were buying out Torch’s interest in Torch-Rally.  And, according to Mike Parks, Reliant was reluctant to enter into a larger contract with Torch-Rally while it was still partially owned by an affiliate of Torch Energy.  Parks Depo at pp. 191-92.   Thus, the buy-out of Torch’s interest in Torch-Rally by Barnett and Strawn would remove an obstacle to the proposed Agreement with Reliant, an agreement Reliant believed would be profitable.  Williams Depo at pp. 19-21.

It was also in Reliant’s best interests to encourage and facilitate Barnett and Strawn’s investment in Torch-Rally because Torch-Rally owed substantial sums of money to Reliant under its existing agreement.  First, Torch-Rally was the maker of a $1 million note to Reliant.  Dunnavant Depo at p. 35; Williams Depo at p. 47.  In addition, Reliant had made numerous pre-pays, or loans, to Torch-Rally during their relationship.  Williams Depo at pp. 31-36.  Reliant had also previously issued letters guaranteeing various payments Torch-Rally owed to its creditors.  Williams Depo at pp. 175-78.  As a result of these ongoing financial obligations, David Dunnavant testified that Torch-Rally was notorious within Reliant’s accounting department.  Dunnavant Depo at p. 115.  Clearly Reliant had an economic interest in seeing two individuals with substantial economic resources invest in Torch-Rally.

C.        Consistent with its economic self-interest, at the September 6, 2000 meeting, Reliant concealed the fact that the Agreement had been vetoed weeks earlier and instead told Barnett and Strawn that the Agreement with Rally would be signed shortly.

At the September 6, 2000 meeting, Reliant raved about Torch-Rally’s performance under the Master Agreement and, when Plaintiffs asked about Parks, Dunnavant and Norman offered nothing but glowing praise, saying “we’ve done business with Mike [Parks].  Great guy, best in the business . . . .”   Barnett Depo at pp. 125, 128.  Barnett then inquired about the status of the proposed global purchase and aggregation agreement.  Despite the fact that Reliant legal had immediately “vetoed” the Agreement after it was sent by Parks’ attorney, the Reliant employees never divulged this fact to Barnett, Strawn or Parks.

Q.        During the meeting with Mr. Barnett and his group, did you tell Mr. Barnett that the global agreement that was being discussed that day had already been vetoed by Reliant legal?

A.        I don’t believe so.  I don’t recall.

Q.        To your knowledge, had Mr. Norman ever communicated to Mr. Parks before the September meeting with the Barnett group that the global agreement had been vetoed by Reliant legal?

A.        Not to my knowledge.

* * * * * * *

Q.        Did you ever put it in writing that Reliant legal had vetoed the global agreement?

A.        I don’t recall doing that.

Q.        Did you ever see anything in writing from Mr. Norman telling Parks or Rally that the global agreement had been vetoed?

A.        I don’t recall specifically, no, sir.

Dunnavant Depo at pp. 32-33, 46.

Not only did the Reliant employees conceal the fact that the Agreement had already been vetoed by Reliant’s legal department, they affirmatively misrepresented to Plaintiffs that all of the key terms of the Agreement — including the volume of gas, the ten-year term of the Agreement and the credit provisions of the Agreement — were acceptable to Reliant.  Dunnavant Depo at pp. 12-13, 38-39; Barnett Depo at pp. 119-121, 139; Strawn Depo at pp. 100, 104-06; Parks Depo at pp. 291-293.   As Mike Parks testified:

Q:        When you left the September 6th meeting in 2000, insofar as the material business terms of an arrangement were concerned, did you feel like there was an understanding between the parties on those?

A:        Yes, I felt like there was.

Parks Depo at pp. 368-69.

After confirming the key terms of the Agreement, Dunnavant and Norman went even further, assuring Plaintiffs that the proposed Agreement was “going to get done” and was a “done deal.”  Barnett Depo at pp. 132, 150, 166; Strawn Depo at pp. 120-21.  According to Mike Parks, the Reliant employees told them that “they expected in fairly short order, that in a very reasonable period of time that we would have an executable document.”  Parks Depo at p. 25.    Mike Parks explained that the delay in signing the Agreement was due to the fact that Reliant was reluctant to enter into a larger contract with Rally while it was still partially owned by an affiliate of Torch Energy.  Parks Depo at pp. 191-92.  As such, it was agreed that Reliant would wait and sign the Agreement on or about September 29, 2000, the closing date of Barnett’s purchase of  Rally.  Barnett Depo at p. 147.  Barnett similarly testified that he was told that the Agreement “would be signed by the first of October.”  Barnett Depo at p. 22.  As a result of the statements by Dunnavant and Norman, Barnett left the meeting “without any doubt in my mind that the global agreement was going to get executed.”  Barnett Depo at p. 166.

IV.       Relying on Reliant’s assurances that the Agreement would be signed within days, on September 29, 2000, Strawn and Barnett closed their $6 million loan and purchased Torch-Rally.

On September 29, 2000, Barnett and Strawn were poised to close on their purchase of Torch-Rally but had not yet seen an executed contract from Reliant.  When they called to ask about the status of the Agreement, a Reliant employee, either Dunnavant or Norman, told Barnett that there was no problem with getting the contract executed, that the person who would execute the contract on behalf of Reliant was out of the office that day and that the contract “would be executed and [Plaintiffs] would get it either Monday or Tuesday,” i.e. October 2nd or 3rd.  Barnett Depo at pp. 189-92; Strawn Depo at p. 147 (“it was just stated that whoever was supposed to sign the agreement was out and maybe had been out or whatever and would be back Monday, and there would be no problem.  We would get the agreement shortly.”); Parks Depo at p. 312 (“we were assured that it was forthcoming, that Reliant had to have the blessing of an individual that apparently was not in that afternoon, and that would be in the office the next workday, and that it would be taken care of and that we would have what we needed.”).  As Mike Parks testified:

Q.        In that phone conversation, did the Reliant people represent again that they were going to sign a form of global agreement containing the material terms previously discussed?

A.        Yes.

A.        Yes, they did.

Q:        (BY MR. SAYLES)  Based on what you said or heard in those conversations on the telephone with Reliant personnel, was it expressed to Reliant that Mr. Barnett was buying an interest in this company and was borrowing money to do so?

A.        And this was in which meeting?

Q.        The September 29th, 2000, telephone call.

A.        Yes.

Q.        Yes?

A.        Yes.

Q.        You mentioned that Mr. Barnett was a direct person in describing him a little earlier.  Do you recall that?

A.        Yes, I do.

Q.        In the September the 29th telephone call, was Mr. Barnett direct in stating the fact that he was going to sign on the dotted line for a $6 million obligation based on what he was hearing?

A.        Yes.

Parks Depo at pp. 370-71.

A transcript of the September 29, 2000 phone call between David Dunnavant and Mike Parks, tape recorded by Reliant, confirms Parks’ testimony:

DAVID: Hello.

MIKE: David?

DAVID: Yeah.

MIKE: Mike.  We are over here trying to wrap our deal up with Torch and blah, blah, blah.  And I need to ask you for a couple of things potentially in order to pacify the bank that’s making (indiscernible) –

DAVID:  What?

MIKE: – This loan.

DAVID:  Okay.  What?

MIKE: First of all, we’re telling them that we’re going to execute this new go-forward deal with y’all, this global agreement, this agency agreement, probably Monday or Tuesday of next week.

DAVID: Uh-huh.

MIKE: Is there a way that I could get you to write a letter just simply stating that that’s y’all’s intent and that early next week (indiscernible) –

DAVID: You know, this is bullshit.  God damn –

MIKE: I know it is.  I know it is, David.  I’m not – I’m not – I’m not – I’m not calling the shots here.

DAVID:  No, I’m not going to fucking do that.

MIKE: Okay.

DAVID:  You’ve got my – my – have you shown them the draft letter agreement and the contract?

MIKE: Yes, I have.

DAVID: We’re going to have that finalized by Monday or Tuesday.

MIKE: Okay.

DAVID:  If they want me to write a fricking letter, okay.  I’ll write a god damn letter.  What else?

Transcript of September 29, 2000 telephone call attached hereto as Exhibit F at pp. 19-21.

Having been given total assurance that the Agreement would be executed within a couple of days, Plaintiffs went forward with the closing of the loan and the purchase of Torch-Rally.  Barnett Depo at pp. 189-90, 226.  On October 13, 2000, with the loan having closed but the Agreement never having been received from Reliant as promised, Barnett called Reliant to check on the situation.  A Reliant employee Barnett believes was Kim Norman apologized for the delay and assured Barnett that the Agreement would be signed and provided to him the early part of the next week.  Barnett Depo at p. 238.  Despite its statements during the September 6, 2000 meeting, the September 29, 2000 phone call and the October 13, 2000 phone call, Reliant never signed the Agreement with Rally, and Rally was later forced to file for bankruptcy in August 2001.

ARGUMENT AND AUTHORITIES

I.          Plaintiffs need only come  forward with a “scintilla of evidence” in order to defeat Reliant’s no-evidence Motion.

A no evidence summary judgment is essentially a pretrial directed verdict, and courts apply the same legal sufficiency standard in reviewing a no evidence summary judgment as they apply in reviewing a directed verdict.  Marsaglia v. University of Texas, El Paso, 22 S.W.3d 1, 3 (Tex.App.–El Paso 1999, pet. denied); Frazier v. Yu, 987 S.W.2d 607, 610 (Tex.App.–Fort Worth 1999, pet. denied).  A no evidence summary judgment is properly granted only when 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 on which the nonmovant would have the burden at trial.  See Tex. R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997), cert. denied, 523 U.S. 1119 (1998). If the evidence supporting a finding rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions, then more than a scintilla of evidence exists and the motion must be denied. Havner, 953 S.W.2d at 711; General Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (Tex.App.–Dallas 2000, no pet.). As set forth more fully below, Plaintiffs have much more than a scintilla of evidence to support the challenged elements of their various causes of action.  Reliant’s no-evidence Motion should therefore be denied.

II.        The Motion should be denied as to Plaintiffs’ fraud claim.

A.        Reliant made misrepresentations of existing fact as well as misrepresentations regarding its intent to sign the Agreement.

Reliant argues that it is entitled to summary judgment on Plaintiffs’ fraud claim in part because there is no evidence that it made an affirmative misrepresentation of a material, existing fact. This argument is based on the misguided assertion that Plaintiffs’ fraud claims hinge entirely on Reliant’s promise that it would sign the Agreement.  Motion at p. 13.  In truth, however, Plaintiffs’ petition asserts claims based both on that false promise as well as false statements of existing fact made by Reliant at the September 6, 2000 meeting.

For example, at the meeting, the Reliant employees confirmed with Plaintiffs that the key provisions of the Agreement with Rally — the 10-year term, the billion cubic feet volume of gas and the extension of Credit to Rally — were acceptable to Reliant.  Dunnavant Depo at pp. 12-13; Strawn Depo at p. 100; Barnett Depo at pp. 119-21; Parks Depo at pp. 291-92, 318-19.  They also told Plaintiffs that Reliant had a “vociferous” need for additional volumes of gas to operate 18 or 19 new power plants.  Barnett Depo at p. 121; see also Dunnavant Depo at pp. 12-16.  These statements of material, existing fact were false.

Unbeknownst to Plaintiffs, the terms of the Agreement were completely unacceptable to Reliant from the moment it was received.  Reliant attorney Steve Williams testified about the Agreement that “I think upon its receipt it was clear within Reliant that the terms and conditions outlined in this document were unacceptable to Reliant.” Williams Depo at pp. 8-9.  Specifically, Reliant was not willing to enter into an agreement with Rally that would obligate it to purchase a fixed quantity of gas for a fixed period of time and to extend credit support to Rally.  Williams Depo at pp. 6, 122-23, 170-72, 205.  In fact, Dunnavant testified that Reliant legal had vetoed the Agreement “[p]retty much upon its first reading.”  Dunnavant Depo at pp. 31-2.   Moreover, Reliant did not have an insatiable need for additional volumes of gas as it had represented and actually had an objection to buying even one or two billion cubic feet of gas from Rally as contemplated by the Agreement.  Williams Depo at pp. 6-7, 102, 123, 171-72, 184.  Because Plaintiffs have adduced evidence that Reliant made numerous misrepresentations of material, existing fact, the Motion should be denied.

B.        There is ample evidence of an intent not to perform a promise when made to defeat Reliant’s no-evidence motion.

In addition to making misrepresentations of existing fact, Reliant also made numerous misrepresentations that it intended to sign the Agreement with Rally.  Such a promise of future performance “constitutes an actionable misrepresentation if the promise is made with no intention of performing at the time it was made.”  Formosa Plastics Corp. v. Presidio Engineers and Contractors, 960 S.W.2d 41, 48 (Tex. 1997).   In its Motion, Reliant argues that there is no evidence of an intent not to perform at the time it made its promise to sign the Agreement with Rally.  This is simply wrong.  As set forth below, there is ample evidence of such an intent to defeat Reliant’s no-evidence Motion.

1.         Reliant’s failure to perform provides evidence of its intent not to perform its promise to sign the Agreement.

Because intent to defraud is difficult to prove with direct proof, “it invariably must be proven by circumstantial evidence.”  Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 435 (Tex. 1986); Ikon Office Solutions, Inc. v. Eifert, 125 S.W.3d 113, 124 (Tex. App.–Houston [14th Dist.] 2003, pet. filed) (same).  Such circumstantial evidence is not limited to actions taking place prior to or at the time the promise was made.  Rather, fraudulent intent “may be inferred from the party=s subsequent acts after the representation is made.”  Spoljaric, 708 S.W.2d at 434; see also Stuart v. Bayless, 945 S.W.2d 131, 136 (Tex. App.–Houston [1st. Dist.] 1996), rev=d in part on other grounds, 41 Tex. Sup. Ct. J. 546 (Tex. 1998) (“while a party=s intent is determined at the time the party made the promise, it may be inferred from the party=s acts occurring after the making of the promise”); Beijing Metals and Minerals Import/Export Corp. v. American Business Center, Inc., 993 F.2d 1178, 1185 (5th Cir. 1993) (“Intent not to perform a promise at the time it was made may be shown by circumstantial evidence, including the subsequent conduct of the promisor.”).

One example of such post-promise circumstantial evidence is the party’s subsequent failure to perform its promise; such a failure is “a circumstance to be considered with other factors to establish intent” at the time the promise was made.  Schindler v. Austwell Farmers Cooperative, 841 S.W.2d 853, 854 (Tex. 1992); Spoljaric, 708 S.W.2d at 435 (failure to perform “is a circumstance to be considered with other facts to establish intent”); Stuart, 945 S.W.2d at 136 (failure to perform “is a circumstance to be considered with other facts to establish intent”).  Here, it is unquestioned that Reliant never signed the Agreement it promised on numerous occasions it would sign.  This fact alone provides circumstantial evidence of Reliant’s intent not to sign the Agreement at the time it made its promises to Plaintiffs.   Such evidence is more than sufficient to defeat Reliant’s no-evidence motion for summary judgment.

2.         Reliant’s denial that it promised to sign the Agreement provides additional evidence of its intent not to perform that promise.

In addition to a party=s failure to perform its promise, circumstantial evidence of fraud is also established by the party=s subsequent denial that it ever made the promise at issue.  See, e.g., Spoljaric, 708 S.W.2d at 435 (“courts have held a party=s denial that he ever made a promise is a factor showing no intent to perform when he made the promise”); Hoeschst Celanese Corp. v. Arthur Bros., Inc., 882 S.W.2d 917, 925 (Tex. App.–Corpus Christi 1994, writ denied) (“denial that a promise was made is a factor in showing no intent to perform the promise”); T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992) (“Denying that a promise has been made is a factor showing no intent to perform when the promise was made.”).

In the instant case, both Reliant attorney Steve Williams and Reliant employee David Dunnavant denied that Reliant promised it would sign the Agreement.  Dunnavant testified that the Agreement with Rally never got beyond the negotiation stage and specifically denied telling Plaintiffs that Reliant would sign the Agreement:

Q.        Mr. Dunnavant, in the September 6th meeting with Mike Barnett, didn’t you tell Mr. Barnett that the deal between Reliant and Rally was going to be executed before the end of the month?

A.        No, sir.  I don’t recall specifically saying that.

Q.        Did you indicate that in any sort of general way?

A.        Which agreement are you referring to?

Q.        The global agreement.

A.        No, sir.

Dunnavant Depo at pp. 98, 113.  Williams testified repeatedly that Rally and Reliant never entered into an agreement or even “reached agreement with respect to the terms on which Reliant was willing to enter into such an agreement to buy gas from Rally.”  Williams Depo at pp. 142, 148, 173.  This denial of the promise at issue provides additional evidence of Reliant’s intent not to perform that promise at the time it was made.

3.         There is ample additional evidence of Reliant’s intent not to perform.

When a party like Reliant fails to perform its promise, a plaintiff need only show slight circumstantial evidence of fraud in order to establish a fraud claim based on non-performance.  As the Texas Supreme Court has stated, “slight circumstantial evidence of fraud, when considered with the breach of promise to perform, is sufficient to support a finding of fraudulent intent.”  Spoljaric, 708 S.W.2d at 435; see also Stuart, 945 S.W.2d at 136 (“slight circumstantial evidence of fraud, when considered with proof of non-performance, is sufficient to support a finding of fraudulent intent”); Hoeschst Celanese Corp., 882 S.W.2d at 925 (“failure to perform an agreement to perform in the future, plus slight circumstantial evidence of fraud, is sufficient to support a finding of fraudulent intent in making the agreement”).

In the instant case, there is ample additional evidence of Reliant’s intent not to perform its promise to sign the Agreement at the time that promise was made.  For example, as stated above, unbeknownst to Plaintiffs, the terms of the Agreement were completely unacceptable to Reliant from the moment it was received.  Reliant attorney Steve Williams testified about the Agreement that “I think upon its receipt it was clear within Reliant that the terms and conditions outlined in this document were unacceptable to Reliant.” Williams Depo at  pp. 8-9.  Williams testified that Reliant was not willing to enter into an agreement with Rally that would obligate it to purchase a fixed quantity of gas for a fixed period of time and to extend credit support to Rally.  Williams Depo at pp. 6, 122-23, 170-72, 205.  Dunnavant testified that Reliant legal vetoed the Agreement “[p]retty much upon its first reading.”  Dunnavant Depo at pp. 31-2.  Evidence that the terms of the Agreement were unacceptable to Reliant from the moment the Agreement was received provides additional evidence that it never intended to sign the Agreement despite its promises to Plaintiffs.

Because the Agreement was unacceptable to Reliant “from its first reading,” Reliant employee Pat Strange never sought approval for the agreement from the people above him.  Williams Depo at p. 56.   Nor did the legal department at Reliant provide Reliant employee Kim Norman with the analysis of the appropriate legal structure to use to consummate the Agreement as he had requested.  Williams Depo at p. 63.  And Reliant did not even bother to send Rally a counter-proposal to the Agreement because, as Steve Williams testified, “our conceptual understanding of where we wanted to go was so far afield from what was represented in the global agreement, that it didn’t make sense to red line, mark up the document, and return it.”  Williams Depo at p. 201.  Reliant’s failure to take any steps to seek approval of the Agreement provides additional evidence that Reliant did not intend to sign the Agreement at the time it promised Plaintiffs that it would do so.

Finally, the fact that there were no insurmountable hurdles to consummation of the Agreement provides additional evidence that Reliant simply never intended to sign the Agreement as promised.  As Reliant attorney Steve Williams testified, there were no legal or regulatory reasons why the relationship contemplated by the Agreement could not have been established:

Q.        Was there anything about forming a new company or joint venture with Rally that would cause Reliant to not be interested in moving forward with the deal?

A.        From a legal perspective, the word “joint venture” didn’t mean a whole lot to me.  If – if Reliant wanted to do or expand its relationship and they wanted to form a new company, well, you know, we can – you can form a new company.  But you’ve got to do all the documents and you’ve got to know who’s contributing what, how it’s managed, its tax structure, who contributes what, and who does what, so …

Q.        There was nothing from either a legal or regulatory standpoint that would prohibit the formation of such a venture or company, was there?

A.        From a legal perspective, I’m not aware that we could not have done that.  From a regulatory perspective, I’m not aware of a reason why we couldn’t have done it.

Q.        And from a legal perspective, there was no reason why Reliant would not be able to commit its credit facility to such a venture?

A.        I’m not aware that there was anything that would prohibit it.

Williams Depo at pp. 56-7.  Instead, the reason why the Agreement was never consummated was much more fundamental: Reliant simply did not agree with the terms of the Agreement.  See Williams Depo at pp. 8-9 (“I think upon its receipt it was clear within Reliant that the terms and conditions outlined in this document were unacceptable to Reliant.”).  Even after the parties allegedly decided to try to amend their existing agreement rather than execute an entirely new agreement, they were unable to do so because they “couldn’t come to agreement on the terms of the amendment.”  Dunnavant Depo at p. 83.

Evidence that the Agreement was not consummated for the simple reason that its terms were unacceptable to Reliant — and not because of any legal or regulatory hurdles — provides additional circumstantial evidence that Reliant did not intend to sign the Agreement at the time it promised to do so.  Summary judgment is therefore inappropriate.

4.         Intent is a fact issue that is inappropriate for summary judgment.

In the final analysis, the issue of fraudulent intent is an issue which is ill-suited for summary judgment.  As numerous courts have held, “intent is a fact question uniquely within the realm of the trier of fact because it so depends on the credibility of the witnesses and the weight to be given their testimony.”  Spoljaric, 708 S.W.2d at 434; see also Stuart, 945 S.W.2d at 136 (same).  Because issues of intent depend on the credibility of witnesses, “a jury is entitled to consider the circumstantial evidence, weigh witnesses’ credibility, and make reasonable inferences from the evidence it chooses to believe.”   Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 648 (Tex. App.–Houston [14th dist.] 2003, pet. filed).  As one court has stated:

Needless to say, intent is a fact question uniquely within the realm of the trier of fact because it so depends on the credibility of the witnesses and the weight to be given their testimony; thus, summary judgment is rarely proper.

Beijing Metals, 993 F.2d at 1185; see also Taylor v. Bonilla, 801 S.W.2d 553, 557 (Tex. App.–Austin 1990, writ denied) (“Summary judgment is rarely proper when the case involves an issue inherently for the fact-finder, such as intent.”).  For this additional reason, Reliant’s Motion should be denied.

C.        Reliant’s non-disclosures also support Plaintiffs’ fraud claim.

Reliant’s failure to disclose the truth to Plaintiffs regarding the status of the Agreement between Reliant and Rally also supports Plaintiffs’ fraud claim.  As set forth above, the terms of the Agreement were completely unacceptable to Reliant from the moment it was received.  Williams Depo at pp. 6, 8-9, 11, 122-23, 170-72, 205; Dunnavant Depo at pp. 31-2.  During its subsequent meetings with Plaintiffs, however, Reliant told Plaintiffs the Agreement would be signed and completely failed to disclose that the terms of the Agreement had already been rejected by Reliant as unacceptable.  Dunnavant Depo at pp. 32-33, 46.  Such non-disclosure clearly states a claim for fraud:

Fraudulent misrepresentation may occur when a party conceals or fails to disclose a material fact with the intent to induce another party to take some action, and the party knows the relying party is ignorant of the concealed fact and does not have an equal opportunity to discover the truth.

Formosa Plastics Corp. v. Presidio Engineers and Contractors, 941 S.W.2d 138, 144 (Tex. App.–Corpus Christi 1995), rev’d on other grounds, 960 S.W.2d 41 (Tex. 1998).  For this additional reason, the Motion should be denied as to Plaintiffs’ fraud claim.

D.        There is ample evidence of Reliant’s intent to induce reliance.

In its Motion, Reliant asserts that there is no evidence that it intended to induce Plaintiffs to rely on its misrepresentations.   This is simply wrong.  There is abundant evidence that Reliant knew Plaintiffs were relying on its statements about the future Agreement with Rally in deciding whether or not to purchase Rally.  Parks Depo at pp. 287, 290, 311; Barnett Depo at pp. 113-14, 147-48; Strawn Depo at pp. 83-84; Williams Depo at p. 146; Dunnavant Depo at p. 34; Exhibit G at pp. 2-3.  Moreover, Reliant, because of its ongoing relationship with Torch-Rally, the $1 million note owed it by Torch-Rally and the credits and guarantees Reliant had extended to Torch-Rally, had every reason to encourage Barnett and Strawn to invest substantial amounts of money in Torch-Rally.  See Section III. B infra. The foregoing evidence of an intent to induce reliance creates an issue of fact which defeats Reliant’s no-evidence Motion.  See, e.g., Beijing Metals, 993 F.2d at 1185 (“Needless to say, intent is a fact question uniquely within the realm of the trier of fact because it so depends on the credibility of the witnesses and the weight to be given their testimony; thus, summary judgment is rarely proper.”); Taylor, 801 S.W.2d at 557 (“Summary judgment is rarely proper when the case involves an issue inherently for the fact-finder, such as intent.”).  For these reasons, the Motion should be denied.

E.        There is ample evidence of justifiable reliance, which presents an issue of fact defeating Reliant’s no-evidence motion.

Finally, summary judgment on Plaintiffs’ fraud claim should be denied because there is ample evidence of justifiable reliance to raise an issue of fact.  As set forth above, Plaintiffs were assured on several occasions that the Agreement between Rally and Reliant would be signed prior to or contemporaneously with Plaintiffs closing their loan to purchase Rally.  First, at the September 6, 2000 meeting, Reliant’s employees confirmed all of the key terms of the Agreement, including the volume of gas, the ten-year term of the Agreement and the credit provisions of the Agreement.  Dunnavant Depo at pp. 12-13, 38-39; Barnett Depo at pp. 119-121, 139; Strawn Depo at pp. 100, 104-06; Parks Depo at pp. 291-293.  After confirming the key terms of the Agreement, Dunnavant and Norman assured Plaintiffs that the proposed Agreement was “going to get done” and was a “done deal.”  Barnett Depo at pp. 132, 150, 166; Strawn Depo at pp. 120-21.  According to Mike Parks, the Reliant employees told them that “they expected in fairly short order, that in a very reasonable period of time that we would have an executable document.”  Parks Depo at p. 25.  Barnett testified that he was told the Agreement “would be signed by the first of October.”  Barnett Depo at p. 22.  As a result of the statements by Dunnavant and Norman, Barnett testified that he left the meeting “without any doubt in my mind that the global agreement was going to get executed.”  Barnett Depo at p. 166.  And John Wagner testified that he thought it was reasonable that Barnett believed the Agreement would be forthcoming.  Wagner Depo at pp. 153-54.

On September 29, 2000, with Barnett and Strawn poised to close on their purchase of Torch-Rally, Reliant again confirmed that the Agreement would be signed in short order.  A Reliant employee specifically told Barnett that the person who would execute the contract on behalf of Reliant was out of the office that day and that the contract “would be executed and [Plaintiffs] would get it either Monday or Tuesday.”  Barnett Depo at pp. 189-92; Strawn Depo at p. 147 (“it was just stated that whoever was supposed to sign the agreement was out and maybe had been out or whatever and would be back Monday, and there would be no problem.  We would get the agreement shortly.”); Parks Depo at p. 312 (“we were assured that it was forthcoming, that Reliant had to have the blessing of an individual that apparently was not in that afternoon, and that would be in the office the next workday, and that it would be taken care of and that we would have what we needed.”).

Given these repeated assurances that the Agreement would be signed, Plaintiff Michael Barnett felt he could justifiably rely on Reliant’s promises.

Q.        Okay.  Okay.  Now, given that the – given that this agreement had – what you understood to be the global aggregation agreement had not been returned and signed by Reliant, or Rally for that matter, but in any event had not been signed by Reliant, that was of some concern to you, wasn’t it?

A.        Was until we had the phone conversation they said it was going to be sent.

Q.        Okay.  Well, but you knew that you had some risk without a signed document, true?

A.        I guess there’s some implied risk.  I didn’t really feel like we were dealing with people I had any risk with.  I really didn’t.

Q.        Okay.  Well, but as a banker and a businessman, isn’t it your practice typically to get your agreements executed?

A.        Oh, there have been a number of deals that I’ve probably done and I have taken people’s words that something will get done the next day or the day after and not – and it’s happened every time but one.

* * * * * * *

Q.        Okay.  And had you not been told by Mark Parks that September 29th was the drop-dead deadline, you would have waited to get that agreement, right?

A.        I might have even closed the deal without it given what I heard that they were going to get it sent to us.  Again, I was expecting a fully executed global purchase and aggregation agreement.

Q.        Okay.  So you would have closed – even if there weren’t this September 29th drop-dead deadline, having heard what did you on the phone, you would have gone ahead and closed the transaction; is that what you’re telling us?

A.        Yes.

Q.        Okay.

A.        Because I had their representation that they were going to sign it and get it to us by Monday or Tuesday.

Barnett Depo at pp. 202-04.  Mike Parks also testified that he felt like Plaintiffs could rely on the promises made by Reliant and that he did not think there was any risk Reliant would not sign the Agreement, particularly after the September 29 phone call:

Q.        Okay.  Was there – after the phone call with Mr. Strange, did you understand that there was still some risk that an agreement, a signed agreement was not going to be forthcoming?

A.        No.  I believed him when he told us that he felt like it was done.

Q.        Okay.  Did Mr. – well, did anyone express any concern about the fact that you still didn’t have anything signed?

A.        No.

Q.        Okay.  Was there any discussion about putting off the closing?

A.        Not after that phone conversation, no.

Parks Depo at p. 321.

Under Texas law, “justifiable reliance” represents a lesser burden than does “reasonable reliance.”  J.B. Haralson v. E.F. Hutton Group, Inc., 919 F.2d 1014, 1025 (5th Cir. 1990).  To determine justifiability, courts look at the particular circumstances and decide whether it is “extremely unlikely” the plaintiff actual relied on the defendant’s actions or statements:

Although justifiable reliance represents a lesser burden than “reasonable reliance,” it nevertheless requires a showing that the plaintiff had a right to rely on the misrepresentation in question. To determine justifiability, we consider whether–given the particular plaintiff’s individual characteristics, abilities, and appreciation of facts and circumstances–it is “extremely unlikely” that there was actual reliance on the plaintiff’s part.

Pacific Mut. Life Ins. Co. v. Ernst & Young Co., 10 S.W.3d 798, 807 (Tex. App.-Dallas), rev’d on other grounds, 51 S.W.3d 573 (Tex. 2001); see also J.B. Haralson, 919 F.2d at 1026 (same).  Here, the evidence does not prove as a matter of law that it is “extremely unlikely” Plaintiffs relied upon Reliant’s numerous promises that it would sign the Agreement; in fact, the evidence establishes the contrary.

Finally, the Court should note that “[w]hether a person’s reliance was justified is generally a question of fact for the jury.”  Riostar Corp. v. H.N.M.C., Inc., No. 01-95-00550-CV, 1995 WL 655960 at *2 (Tex. App.–Houston [1st Dist.] Nov. 2, 1995) (not designated for publication); see also Jones v. Ray Ins. Agency, 59 S.W.3d 739, 754 (Tex. App.–Corpus Christi 2001, pet. denied) (“ordinarily the issue of reliance in a fraud case is a question of fact”); Dan Lawson & Assoc. v. Miller, 742 S.W.2d 528, 530 (Tex. App.– Fort Worth 1988, no writ) (“Summary judgment should never be granted when the issues are inherently those for a jury or trial judge, as in cases involving intent, reliance, reasonable care, uncertainty and the like.”); Hilton v. Texas Investment Bank, 650 S.W.2d 545, 547 (Tex. App.–Houston [14th Dist.] 1983, no writ) (same).  The evidence set forth above clearly creates an issue of fact regarding Plaintiffs’ justifiable reliance which renders summary judgment inappropriate.

III.       The Motion should be denied as to Plaintiffs’ negligent misrepresentation claim.

A.        Plaintiffs have alleged the negligent misrepresentation of existing facts.

Reliant’s Motion was premised on the argument that Plaintiffs had not sued for negligent misrepresentation of existing facts, but only misrepresentation of future performance.  In its recently filed Second Amended Petition, attached hereto as Exhibit I, however, Plaintiffs clarified that they are alleging that Reliant made misrepresentations of existing facts to Plaintiffs.  And there is ample evidence for such allegations.  For example, at the September 6, 2000 meeting, the Reliant employees confirmed with Plaintiffs that the key provisions of the Agreement with Rally — the 10-year term, the billion cubic feet volume of gas and the extension of Credit to rally — were acceptable to Reliant.  Dunnavant Depo at pp. 12-13; Strawn Depo at p. 100; Barnett Depo at pp. 119-21; Parks Depo at pp. 291-92, 318-19.  They also told Plaintiffs that Reliant had a “vociferous” need for additional volumes of gas to operate 18 or 19 new power plants.  Barnett Depo at p. 121; see also Dunnavant Depo at pp. 12-16.  These statements were false.  Unbeknownst to Plaintiffs, the terms of the Agreement were completely unacceptable to Reliant from the moment it was received.  Williams Depo at pp. 6-9, 11, 122-23, 170-72, 205; Dunnavant Depo at pp. 31-2.  Moreover, Reliant did not have an insatiable need for additional volumes of gas as it had represented and actually had an objection to buying even one or two billion cubic feet of gas from Rally as contemplated by the Agreement.  Williams Depo at pp. 6-7, 102, 123, 171-72, 184.

B.        There is ample evidence of justifiable reliance, which presents an issue of fact defeating Reliant’s no-evidence motion.

Finally, the Motion asserts that there is no evidence of justifiable reliance to support Plaintiff’s claim for negligent misrepresentation.  As set forth above, however, there is ample evidence of justifiable reliance.  See Section II. E infra. Such evidence raises an issue of fact precluding summary judgment.  For the foregoing reasons, the Motion should be denied as to Plaintiffs’ claim for negligent misrepresentation.

IV.       The Motion should be denied as to Plaintiffs’ promissory estoppel claim.

In its Motion, Reliant asserts that it is entitled to summary judgment on Plaintiffs’ claim for promissory estoppel because Plaintiffs’ reliance on its misrepresentations and omissions was not justifiable as a matter of law.  Motion at pp. 26-7.  This argument should be rejected for two reasons.  First, justifiable reliance is not an element of a claim for negligent misrepresentation.  Rather, only “substantial reliance” is required.  See, e.g., Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 (Tex. 2002); English v. Fischer, 661 S.W.2d 521, 524 (Tex. 1983); Barnett v. Coppell North Texas Court, Ltd., 123 S.W.3d 804, 825 (Tex. App.–Dallas 2003, pet. denied); Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 166 (Tex. App.–Houston [14th Dist.] 2000, pet. denied).  In State Farm Lloyds v. Bold Roofing Co., No. 05-97-01908-CV, 2000 WL 257772 (Tex. App.–Dallas March 9, 2000) (not designated for publication), State Farm argued on appeal that the plaintiff’s verdict should be reversed because the trial court instructed the jury that “substantial reliance” was an element of promissory estoppel rather than “justifiable reliance.”  Citing a long line of cases, the court noted that “[c]ourts have consistently held ‘substantial reliance’ is an element of promissory estoppel” and therefore rejected State Farm’s argument  Id. at *2.   Because justifiable reliance is not an element of a promissory estoppel claim, the Motion should be denied.

Finally, even if justifiable reliance were required, Reliant’s Motion should still be denied as to Plaintiffs’ promissory estoppel claim.  As set forth above, there is ample evidence of justifiable reliance which raises an issue of fact precluding summary judgment. See Section II. E infra. For these two reasons, the Motion should be denied as to Plaintiffs’ claim for promissory estoppel.

CONCLUSION AND PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs Barnett Family Limited Partnership and Mark Strawn pray that the Court deny Defendant Reliant Energy Services, Inc.’s  Motion for Summary Judgment and grant Plaintiffs such other and further relief to which they may be justly entitled.

Respectfully submitted,
HEYGOOD, ORR & PEARSON
2331 W. Northwest Highway
Second Floor
Dallas, Texas 75220
(214) 237-9001 (Telephone)
(214) 237-9002 (Telecopier)