Goldberg v. U.S. Shoe Corp, 01-88-00779-CV

• Citation: 775 S.W.2d 751
• Decision Date: 20 July 1989
• Docket Number: No. 01-88-00779-CV,01-88-00779-CV
• Parties: Billy B. GOLDBERG, Appellant, v. UNITED STATES SHOE CORP. and Retail Development, Inc., Appellees. (1st Dist.)
• Court: Texas Court of Appeals

Page 751

775 S.W.2d 751

Billy B. GOLDBERG, Appellant, v. UNITED STATES SHOE CORP. and Retail Development, Inc., Appellees.

No. 01-88-00779-CV.

Court of Appeals of Texas Houston (1st Dist.).

July 20, 1989.

Rehearing Denied Aug. 31, 1989.

Joseph A. Kornfield and Carmellia C. Boyer, Hiller, Kornfield, Axelrad & Falk, Houston, for appellant.

Linda L. Addison, Roger Townsend and W. Wendell Hall, Fulbright & Jaworski, Houston, for appellees.

Before DUNN, WARREN and HUGHES, JJ.

DUNN, Justice.

This is an appeal from a summary judgment rendered in favor of United States Shoe Corporation ("U.S. Shoe") and its operating division, Retail Development, Inc. ("RDI").

The appellant, Billy B. Goldberg ("Goldberg"), sued Western Development Corp. ("WDC"), Herbert Miller, Richard Kramer, Gerald Dillon, U.S. Shoe, and U.S. Shoe's operating division, RDI, alleging fraud and breach of fiduciary duty. After rendition of the summary judgment in favor of the appellees U.S. Shoe and RDI, the cause of action against the appellees was severed by the court.

In points of error one and two, appellant urges that the court erred in granting summary judgment because fact issues exist in connection with his causes of action for fraud and breach of fiduciary duty.

A summary judgment for the defendant, disposing of the entire case, is proper only if, as a matter of law, plaintiff could not succeed upon any theories pled. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983). A defendant who moves for summary judgment has the burden of showing, as a matter of law, that no material issue of fact exists as to the plaintiff's cause of action. Griffin v. Rowden, 654 S.W.2d 435, 435-36 (Tex.1983). This may be accomplished by showing that at least one element of the plaintiff's cause of action has been established conclusively against the plaintiff. Gray v. Bertrand, 723 S.W.2d 957 (Tex.1987). Once the defendant has negated, as a matter of law, such elements of plaintiff's cause of action, the plaintiff has the burden of introducing evidence that raises an issue of fact with respect to the elements negated by the defendant's summary judgment evidence. Federated Dep't Stores, Inc. v. Houston Lighting & Power Co., 646 S.W.2d 509, 511 (Tex.App.--Houston [1st Dist.] 1982, no writ).

On review of a motion for summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Every reasonable inference must be indulged in favor of the non-movant, and any doubts resolved in its favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

The parties agree about the following facts:

(1) In 1981, WDC, through Miller, Kramer, and Dillon, approached Goldberg, owner of 26 acres of land in north Houston, with a proposal to build a shopping center on the property. WDC had developed several shopping centers in the Washington, D.C. area and sought to expand its operations into Houston. WDC represented that it had a successful record developing "off price" shopping centers, using a T.H. Mandy clothing store as an "anchor" store for the development. T.H. Mandy is another operating division of U.S. Shoe.

(2) The negotiations resulted in the formation of the Willow Chase Fashion Center Assoc., Ltd., with Miller, Kramer, and Dillon as general partners and Goldberg, RDI, Miller, Kramer, Dillon, and WDC II as limited partners. (WDC II was not joined in the suit.) The plan called for the general partners to build and manage the development. RDI would receive a 6.67% interest in the partnership in return for a $2,500 contribution. Additionally, RDI would deliver to the partnership a five-year lease, for retail space in the shopping center, for the T.H. Mandy store.

(3) The project opened, and T.H. Mandy began operating in the shopping center in August 1984. On September 13, 1984, the partnership executed a $13,000,000 promissory note to The Travelers Insurance Co. ("Travelers") and, as part of the note, executed an assignment of leases, giving the insurance company the right to collect unpaid rents should the partnership default on its payments under the note. The partnership failed to make payments on the note in August, September, and October 1985. On October 4, 1985, Travelers cashed a $1,950,000 letter of credit, purchased by the partnership to secure that rents on the project would reach a specific annual income by a certain date. The insurance company applied the money from the letter of credit to the August, September, and October payments due, and the remainder to the balance on the loan.

(4) The T.H. Mandy store announced, on December 4, 1985, that it would close on December 24, 1985. On February 19, 1986, Travelers exercised its assignment of leases and informed U.S. Shoe that "all rentals and other monies owing or to become owing" should be paid directly to Travelers. Travelers foreclosed on the development on March 4, 1986.

Goldberg's claim of fraud rests on his assertion that, at the time the partnership was created, there was a "secret agreement" between U.S. Shoe, RDI, and the general partners, that U.S. Shoe would not be liable, or held accountable for material breaches of its T.H. Mandy lease at the Willow Chase Fashion Center.

Appellees attached the following to their motions for summary judgment: (1) the Willow Chase Fashion Associates, Ltd. partnership agreement; (2) affidavits of Herbert Miller, president of WDC and a general partner of Willow Chase partnership, and Marty Sherman, senior vice-president of U.S. Shoe; and (3) the lease for the T.H. Mandy store at the Willow Chase Fashion Center, signed by Sherman in his...