Valores Corporativos, S.A. de C.V. v. McLane Co., Inc.

• Decision Date: 19 February 1997
• Docket Number: No. 04-95-00913-CV,04-95-00913-CV
• Citation: 945 S.W.2d 160
• Parties: VALORES CORPORATIVOS, S.A. de C.V., Casa Chapa, S.A. de C.V., and Chapa Trading Co., Inc., Appellants, v. McLANE COMPANY, INC. and Wal-Mart Stores, Inc., Appellees.
• Court: Texas Court of Appeals

Page 160

945 S.W.2d 160

VALORES CORPORATIVOS, S.A. de C.V., Casa Chapa, S.A. de C.V., and Chapa Trading Co., Inc., Appellants, v. McLANE COMPANY, INC. and Wal-Mart Stores, Inc., Appellees.

No. 04-95-00913-CV.

Court of Appeals of Texas San Antonio.

Feb. 19, 1997.

Rehearing Overruled April 30, 1997.

Luther H. Soules, III, Soules & Wallace, San Antonio, John M. O'Quinn, Kendall C. Montgomery, O'Quinn, Kerensky, McAninch & Laminack, Houston, Ricardo G. Cedillo, Davis, Adami & Cedillo, Inc., San Antonio, Vincent L. Marable, III, Paul Webb, P.C., Wharton, for appellants.

Seagal V. Wheatley, J. Frank Onion, III, Julia W. Mann, San Antonio, James M. Hill, Robert B. Neblett, III, Harold R. Loftin, Jr., Small, Craig & Werkenthin, P.C., Austin, for appellees.

Before HARDBERGER, C.J., and DUNCAN and BUTTS, JJ ¹.

OPINION

DUNCAN, Justice.

Valores Corporativos, S.A. de C.V., Casa Chapa, S.A. de C.V., and Chapa Trading Co., Inc. (collectively, "Valores") ² appeal the summary judgment against them in their suit against McLane Company, Inc. and Wal-Mart Stores, Inc. We hold the summary judgment proof does not conclusively establish the absence of an enforceable agreement between Valores and McLane Co., and Texas law does not preclude holding Wal-Mart liable for tortiously interfering with the contractual relations of its wholly-owned subsidiary, McLane Co. Accordingly, we reverse the judgment and remand the case to the trial court for further proceedings consistent with this opinion.

PROCEDURAL BACKGROUND

Valores filed suit against Drayton McLane, McLane Co., and Wal-Mart on numerous causes of action. On Valores' motion, however, all of its causes of action against Drayton McLane and many of its causes of action against McLane Co. and Wal-Mart were dismissed with prejudice. As a result of these dismissals, Valores retained claims against McLane Co. for breach of contract, breach of a confidential or fiduciary relationship, and constructive fraud; Valores retained claims against Wal-Mart for tortiously interfering with Valores' and McLane Co.'s agreement or prospective contractual relations and for knowingly participating in what it knew or should have known were breaches of fiduciary duty and constructive fraud by McLane Co. towards Valores.

On September 12, 1995, McLane Co. and Wal-Mart moved for partial summary judgment on Valores' claims for breach of contract and tortious interference with contract or prospective contractual relations. The trial court granted this motion by order signed October 6, expressly noting that it was not granting the motion on the statute of frauds ground. ³

On October 9, McLane Co. and Wal-Mart moved for partial summary judgment on Valores' claims against McLane Co. for breach of a confidential or fiduciary relationship and constructive fraud and its claims against Wal-Mart for knowing participation. In line with the parties' waivers of the appropriate deadlines, the trial court heard and granted this motion on October 11. This second partial summary judgment, coupled with Valores' voluntary dismissals and the earlier October 6 partial summary judgment, comprised a final judgment. Accordingly, on October 11, 1995, the trial court signed a final judgment incorporating all of the pertinent orders. Valores appealed.

STANDARD OF REVIEW

We review a summary judgment de novo. Accordingly, we will uphold a summary judgment only if the summary judgment record establishes that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. Travis v. City of Mesquite, 830 S.W.2d 94, 99-100 (Tex.1992); TEX.R. CIV. P. 166a(c). In deciding whether the summary judgment record establishes the absence of a genuine issue of material fact, we view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts, in its favor. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985).

SCOPE OF REVIEW

Before setting forth the factual background in this case, we must first decide an issue relating to the scope of review. In an objection and supplemental objection, Valores argues that we may not consider the summary judgment proof filed on October 9 as support for the trial court's October 6 partial summary judgment, because it was not before the trial court at that time or for that purpose. McLane Co. and Wal-Mart disagree, arguing that we may consider their October 9 summary judgment proof in support of the October 6 partial summary judgment, because it was filed before the October 11 final judgment was signed. We initially overruled Valores' objection and supplemental objection. However, after further reflection and for the reasons discussed below, we reverse our earlier ruling and now sustain Valores' objection and supplemental objection.

As a general rule, the trial court may consider only that summary judgment proof that was properly on file at the time of the hearing. Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 269 (Tex.1992). McLane Co. and Wal-Mart are correct, however, that the rule also permits the trial court to consider proof filed after the hearing but before judgment in some circumstances. TEX.R. CIV. P. 166a(c). But this provision, "before judgment," has been "construed to mean before the summary judgment is signed by the trial court." TIMOTHY PATTON, SUMMARY JUDGMENTS IN TEXAS § 2.01[b] at 7 (2nd ed.1996). Moreover, "the record must affirmatively reflect that those late-filed documents were filed with leave of court." Id.

In this case, the October 9 summary judgment proof was filed after the trial court signed the October 6 partial summary judgment, and the record does not reflect the trial court permitted this proof to be filed or considered as late-filed proof with respect to the October 6 partial summary judgment. Accordingly, we presume it was not considered by the trial court as support for the October 6 partial summary judgment. Cf., e.g., Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996); Goswami v. Metropolitan Sav. & L. Ass'n, 751 S.W.2d 487, 490 n. 1 (Tex.1988) (in the absence of order to the contrary, presume trial court did not consider late-filed proof). We therefore reverse our earlier ruling and sustain Valores' objection and supplemental objection to consideration of the October 9 summary judgment proof as support for the October 6 partial summary judgment.

FACTUAL BACKGROUND

The summary judgment proof is voluminous and contradictory in many material respects. ⁴ The following statement reflects the standard of review set forth above--that is, Valores' summary judgment proof is assumed to be true, and all inferences are indulged, and all doubts are resolved, in its favor. To emphasize our point--in light of the standard of review, this statement of the factual background does not reflect McLane Co. and Wal-Mart's substantial controverting proof.

In November 1990, Valores, a Mexican corporation, and McLane Co., a Texas corporation (and, as of December 10, 1990, a wholly-owned subsidiary of Wal-Mart), began exploring a joint venture for the wholesale distribution of groceries in Mexico. During the negotiations that followed, Valores was represented by its chairman, Jose Chapa, and its chief executive officer, Gilberto De Hoyos, while McLane Co. was represented by its chief executive officer, Drayton McLane, and its vice president for international affairs, Robert Hudspeth.

On September 26, 1991, after ten months of meetings, analyses, and projections, a meeting was held in Monterrey. According to De Hoyos, this meeting was for the purpose of reaching, and resulted in, a final agreement on all essential terms, as reflected in Drayton McLane's shaking hands with Chapa and De Hoyos and saying they had a deal, as well as media coverage and various correspondence, including Hudspeth's September 27, 1991 letter to Valores "re Agreements and Understandings"; Hudspeth's September 27 letter to De Hoyos congratulating him "for the leadership and vision of creating Chapa/McLane...."; Drayton McLane's September 30 letter to Chapa stating that McLane Co. was "truly honored to be your partner ...."; and Drayton McLane's October 24 letter to Chapa stating that "[o]ur agreement in principle is all we really need, but as soon as the contract is completed, I look forward to coming to Monterrey to have a formal signing of this important document." De Hoyos further testified that he was authorized to bind Valores, and Drayton McLane was authorized to bind McLane Co., to their agreement.

The essential terms of the parties' agreement, according to De Hoyos and as substantially reflected in Drayton McLane's September 27 letter to De Hoyos, were:

[ The name of the joint venture would be "Chapa/McLane."

[ Chapa/McLane's business purpose would be the wholesale distribution of groceries and the continuation of Valores' home delivery service near Monterrey in northeastern Mexico.

[ Valores would contribute its "know-who," while McLane Co. would contribute its "know-how."

[ Chapa/McLane would "be owned and capitalized equally by Valores and McLane." "Financing methods [would] be evaluated by Valores and recommendations made as to [the] best methods for [the] benefit of [the] joint venture."

[ The "[t]otal capital investment requirements [were] estimated at 10-12,000,000.00 U.S.D."

[ Chapa/McLane's "Board of Directors [would] consist of six members--three from each company with chairman from Valores. Alfonso Cordero [would] serve as General Manager of Chapa/McLane."

[ Valores would close its existing distribution centers, and Chapa/McLane would "reimburse [Valores] up to [a] maximum of 2,000,000 U.S.D. over five years for losses incurred as [a] result of facility closings. This 2,000,000.00 U.S.D. would be generated from operating profits and could be paid in a time frame shorter than five years at the discretion of McLane Company or longer...