Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Tuesday, July 19, 2011

The Economic Loss Rule explained: Contract vs. Tort Claim

 

What is the significance of the economic-loss rule?

When a party's acts breach a contract and the only alleged injury is economic loss to the subject of the contract itself, the action sounds in contract alone. Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 495 (Tex. 1991); Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986); see also Mickens v. Longhorn DFW Moving, Inc., 264 S.W.3d 875, 879 (Tex. App.-Dallas 2008, pet. denied) ("When a negligence claim is made alleging the breach of the very duties encompassed in a contract between the parties, the action is for breach of contract and not tort.") (internal quotations omitted).

SOURCE: Dallas Court of Appeals - 05-10-00047-CV - 7/15/11

Although [ Appellant's ] brief includes some discussion of the economic-loss rule, its briefing consists only of an abstract discussion of the law. [ Appellant ] does not explain why its negligence, gross negligence, and fraud claims are not barred by the economic-loss rule on the particular facts of this case. See In re Estate of Miller, 243 S.W.3d 831, 840 (Tex. App.-Dallas 2008, no pet.) (holding issue waived because appellant did not analyze legal authority and made "no suggested application of it to the facts"). Nor does[ Appellant ] support its argument with any citations to the record as required by Texas Rule of Appellate Procedure 38.1(i). See In re B.A.B., 124 S.W.3d 417, 420 (Tex. App.-Dallas 2004, no pet.) ("The failure to adequately brief an issue, either by failing to specifically argue and analyze one's position or provide authorities and record citations, waives any error on appeal.").

We conclude that [ Appellant ] has effectively failed to challenge [ Appellee's ] invocation of the economic- loss rule, and so we will not disturb the summary judgment with respect to[ Appellant ]'s claims for negligence, gross negligence, and fraud. See Adams v. First Nat'l Bank of Bells/Savoy, 154 S.W.3d 859, 875 (Tex. App.-Dallas 2005, no pet.) ("[A] reviewing court will affirm the summary judgment as to a particular claim if an appellant does not present argument challenging all grounds on which the summary judgment could have been granted."); see also Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.-Dallas 2009, pet. denied) (stating that a general issue challenging summary judgment must be supported by argument "negating all possible grounds upon which summary judgment could have been granted").

SOURCE: Dallas Court of Appeals - 05-10-00047-CV - 7/15/11