Camp v. Ruffin ( 1994 )


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  •                     United States Court of Appeals,
    Fifth Circuit.
    No. 93-9151
    Summary Calendar.
    Robert CAMP, Plaintiff-Appellant,
    v.
    Phillip G. RUFFIN, d/b/a Harper Trucks, Inc., d/b/a Harper Hand
    Trucks, Inc. and Harper Trucks, Inc., Defendants-Appellees.
    Aug. 25, 1994.
    Appeal from the United States District Court for the Northern
    District of Texas.
    Before DAVIS, JONES and DUHÉ, Circuit Judges.
    PER CURIAM:
    Plaintiff appeals summary dismissal of his claims for fraud,
    misrepresentation, and breach of contract.     We affirm.
    I. Background
    Plaintiff Robert Camp sued his employer, Harper Trucks, and
    its president, Philip Ruffin.    The complaint asserted that certain
    promises concerning commissions and salary made to him before he
    accepted employment were not fulfilled; it specified two counts of
    recovery, fraud and negligent misrepresentation.
    On Defendant's motion for summary judgment, the district court
    found that plaintiff's evidence failed to suggest detrimental
    reliance or actual loss of money and that the common law fraud
    claim therefore failed.    As for misrepresentation, the court found
    that plaintiff failed to present evidence of pecuniary loss.    The
    district court also found that plaintiff had not stated any other
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    claims such as breach of contract.
    II. Fraud and Misrepresentation
    Plaintiff argues that to show the damage element of his fraud
    and misrepresentation claims, he need not offer evidence that he
    passed over more lucrative opportunities in accepting employment
    with Harper;    he need only show that, acting in reliance on the
    promises, he was damaged either by out-of-pocket losses or his loss
    of the benefit of his bargain.        He complains that evidence of lost
    commissions and the promised pay raise show benefit-of-the-bargain
    losses, which he contends suffice to raise a fact issue regarding
    damages so as to defeat summary judgment.
    Camp must provide evidence that he suffered injury as the
    result of his reliance upon a promise or representation in order to
    support his fraud or misrepresentation claim.            See Beijing Metals
    & Minerals Import/Export Corp. v. American Business Ctr., Inc., 
    993 F.2d 1178
    , 1185 (5th Cir.1993) (common law fraud);                Crenshaw v.
    General Dynamics Corp., 
    940 F.2d 125
    , 128 (5th Cir.1991) (fraud or
    misrepresentation).      The summary judgment evidence of financial
    injury consisting solely of the denial of expected commissions and
    a pay raise is insufficient as a matter of law.              To support an
    action for fraud or misrepresentation, a plaintiff must show what
    he has actually lost—i.e., out-of-pocket damages or pecuniary
    loss—not loss of what he was promised or loss of the benefit of the
    contract.      See    Collins    v.   McCombs,    
    511 S.W.2d 745
    ,   747
    (Tex.Civ.App.—San      Antonio   1974,    writ   ref'd    n.r.e.)    (fraud);
    Federal Land Bank Ass'n of Tyler v. Sloane, 
    825 S.W.2d 439
    , 442
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    (Tex.1991) (misrepresentation).
    Such damages are measured not by what the plaintiff might
    have gained, had the promise been performed, but by what he has
    lost. 
    Collins, 511 S.W.2d at 747
    (citing George v. Hesse, 
    100 Tex. 44
    , 
    93 S.W. 107
    , 107 (Tex.1906));            Morriss-Buick Co. v. Pondrom,
    
    131 Tex. 98
    , 
    113 S.W.2d 889
    , 890 (1938).           With certain exceptions
    not   applicable    here,     benefit-of-the-bargain       damages    are   not
    compensable.        See     Frey   v.   Martin,    
    469 S.W.2d 316
    ,   317
    (Tex.Civ.App.—Dallas 1971, writ ref'd n.r.e.) (explaining 1919
    legislation     supplementing      damages   for   stock   and   real   estate
    transactions);     see also 
    Sloane, 825 S.W.2d at 443
    n. 5 (confining
    prohibition against benefit-of-the bargain damages to common-law
    actions, expressly reserving opinion on damages recoverable in an
    action based on statute).1         The lack of damages cognizable under
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    We think Sanchez v. Johnson & Johnson Medical, Inc., 
    860 S.W.2d 503
    (Tex.App.—El Paso, writ filed, Sept. 13, 1993), goes
    against the current of Texas law in this regard. Sanchez allowed
    benefit-of-the bargain damages for fraud occurring in the
    employment relationship. Noting that Sloane and Texas law would
    appear to deny benefit-of-the bargain damages in
    misrepresentation actions, Sanchez nevertheless allowed such
    damages because lost wages "would appear to be the only
    appropriate 
    remedy." 860 S.W.2d at 514
    .
    As late as 1991 the Texas Supreme Court "decline[d] to
    extend damages beyond those limits provided in Restatement
    section 552B." 
    Sloane, 825 S.W.2d at 443
    . The Restatement
    restricts damages for negligent misrepresentation to
    "pecuniary loss"; damages recoverable for negligent
    misrepresentation "do not include the benefit of the
    plaintiff's contract with the defendant. Restatement
    (Second) of Torts § 552B (1976) (emphasis added). In view
    of the continued viability of Sloane, George v. Hesse and
    Morriss-Buick Co. v. Pondrom, we do not believe the Texas
    Supreme Court will depart from the general rule denying
    benefit-of-the-bargain damages absent one of the recognized
    exceptions.
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    Texas law defeats plaintiff's tort claims, because he has not shown
    that a question of fact regarding injury remains for trial.
    III. Contract
    We also affirm the court's determination that plaintiff
    failed to state a claim in contract. The summary judgment evidence
    established that there was no written employment contract between
    Camp   and   Harper.   Accordingly,   the   employment   agreement   was
    terminable at will.     See 
    Collins, 511 S.W.2d at 747
    (rejecting
    plaintiff's claim cast in language sounding in tort as an indirect
    attempt to recover for the breach of an unenforceable promise);
    Beijing 
    Metals, 993 F.2d at 128
    (oral promise of employment is
    terminable at will).
    For the foregoing reasons, the district court's judgment is
    AFFIRMED.
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