negligent misrepresentation claim in Texas

2008Code Ann. § 150.002 (a). (7) In its briefing to this Court, Carothers Homes fails to address the negligent misrepresentation claim and argues that the statute was amended to cover "not only a pure negligence cause of action, but also any potential cause of action in which negligence was a necessary element." Negligent misrepresentation is a "cause of action in which negligence [is] a necessary element." Compare Federal Land Bank Ass'n v. Sloane , 825 S.W.2d 439, 442 (Tex. 1991) ("The elements of a cause of action for [negligent misrepresentation] are: (1) the representation is made by a defend

2008Prac. & Rem.Code Ann. § 150.002(a). 7 In its briefing to this Court, Carothers Homes fails to address 'the negligent misrepresentation claim and argues that the statute was amended to cover “not only a pure negligence cause of action, but also any potential cause of action in which negligence was a necessary element.” Negligent misrepresentation is a “cause of action in which negligence [is] a necessary element.” Compare Federal Land, Bank Ass’n v. Sloane, 825 S.W.2d 439, 442 (Tex.1991) (“The elements of a cause of action for [negligent misrepresentation] are: (1) the representation is made by

2021We reasoned in McCamish, however, that permitting a non-client to bring a negligent- misrepresentation claim against an attorney would not “undermine” the privity requirement if that claim arose not from the “duty a professional owes his or her clients or others in privity, but on an independent duty to the nonclient based on the professional’s manifest awareness of the nonclient’s reliance on the misrepresentation and the professional’s intention that the nonclient so rely.” Id. at 791, 792 .

2013Id. 6 The Supreme Court has noted that a lack of justifiable reliance in a fraud claim necessarily bars a negligent misrepresentation claim.

2004See Allied Vista, Inc., 987 S.W.2d at 141 (holding defendant’s representations that it would provide plaintiff the equipment needed to start a plant and pay plaintiff a salary while starting the plant did not support negligent misrepresentation claim because they were not misrepresentations of existing fact). 17 Therefore, JMC negated the “false information” element of the negligent misrepresentation claim as a matter of law.

2004See Allied Vista, Inc. , 987 S.W.2d at 141 (holding defendant’s representations that it would provide plaintiff the equipment needed to start a plant and pay plaintiff a salary while starting the plant did not support negligent misrepresentation claim because they were not misrepresentations of existing fact). [17] Therefore, JMC negated the “false information” element of the negligent misrepresentation claim as a matter of law.

2015“A promise to act or not to act 'in the future cannot form the basis of a negligent misrepresentation claim.” Id.

2012See, e.g., BCY Water Supply Corp. v. Residential Inv., Inc., 170 S.W.3d 596, 602 (Tex. App.—Tyler 2005, pet. denied) (explaining that the ―false information‖ contemplated in a negligent misrepresentation case must be a misstatement of existing fact, not a promise of future conduct); Roof Sys., Inc. v. Johns Manville Corp., 130 S.W.3d 430, 439 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (same); Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. App.––Houston [14th Dist.] 1999, pet. denied) (same); Airborne Freight Corp. v. C.R.

2021Consistent with the ordinary meaning of the term “false information,” longstanding and uniform case law instructs that “[t]he term ‘false information,’ as used in the elements of a negligent misrepresentation claim, means a misstatement of existing fact, not a promise of future conduct.” Bexar-Mar Int’l, LLC v. Combi Lift GMBH, No. 01-19-00171-CV, 2020 WL 4979527 , at *10 (Tex. App.—Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.); see also Crane v. Hanna, No. 13-18-00534-CV, 2020 WL 3478673 , at *3 (Tex. App.—Corpus Christi–Edinburg June 25, 2020, no pet.) (mem. op.); First Bank v. Brum

2012See, e.g., BCY Water Supply Corp. v. Residential Inv., Inc., 170 S.W.3d 596, 602 (Tex. App.—Tyler 2005, pet. denied) (explaining that the ―false information‖ contemplated in a negligent misrepresentation case must be a misstatement of existing fact, not a promise of future conduct); Roof Sys., Inc. v. Johns Manville Corp., 130 S.W.3d 430, 439 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (same); Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex. App.––Houston [14th Dist.] 1999, pet. denied) (same); Airborne Freight Corp. v. C.R.

2010See Swank v. Sverdlin , 121 S.W.3d 785, 802 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (“ To prevail on a negligent misrepresentation claim, the plaintiff must demonstrate: (1) the representation was made by a defendant in the course of his business, or in a transaction in which he had a pecuniary interest; (2) the defendant supplied false information for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffered pecuniary loss by justifiably relying on the repre

2007See Sloane, 825 S.W.2d at 442 ; Dallas Firefighters Ass’n v. Booth Research Group, Inc., 156 S.W.3d 188, 194 (Tex. *380 App.-Dallas 2005, pet. denied); Swank v. Sverdlin, 121 S.W.3d 785, 802 (Tex.App.Houston [1st Dist.] 2003, pet. denied); Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).

2008See Sloane, 825 S.W.2d at 442 ; Dallas Firefighters Ass’n v. Booth Research Group, Inc., 156 S.W.3d 188, 194 (Tex.App.-Dallas 2005, pet. denied) Cinemark asserted that it was entitled to summary judgment on the producers’ negligent representation claim because they cannot establish any of the required elements.

2007See Sloane, 825 S.W.2d at 442 ; Dallas Firefighters Ass’n v. Booth Research Group, Inc., 156 S.W.3d 188, 194 (Tex. *380 App.-Dallas 2005, pet. denied); Swank v. Sverdlin, 121 S.W.3d 785, 802 (Tex.App.Houston [1st Dist.] 2003, pet. denied); Allied Vista, Inc. v. Holt, 987 S.W.2d 138, 141 (Tex.App.-Houston [14th Dist.] 1999, pet. denied).

2008Houston, Inc. v. Love , 92 S.W.3d 450, 454 (Tex. 2002) (elements of negligence cause of action are "legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach").

2008Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002) (elements of negligence cause of action are “legal duty owed by one person to another, a breach of that duty, and damages proximately caused by the breach”).

2025See Sterling Chems., Inc., 259 S.W.3d at 797 .

2023Guerrero-McDonald v. Nassour, 516 S.W.3d 198, 210 (Tex. App.—Eastland 2017, no pet.) (citing Sterling Chemicals, Inc. v. Texaco Inc., 259 S.W.3d 793 , 797–98 (Tex. App.— Houston [1st Dist.] 2007, pet. denied) (“[I]f a negligent misrepresentation claim only seeks benefit of the bargain damages … (1) a plaintiff cannot establish an independent injury that is distinct from the economic losses recoverable under a breach of contract claim and (2) the economic loss rule bars any recovery of these damages under the negligent misrepresentation claim.”)). “[T]he damages recoverable for a negligent misr

2023If the contract language contains such an expression, then courts proceed to analyze whether the disclaimer should be prevail on a fraud claim, a plaintiff must prove that it actually and justifiably relied on a factual misrepresentation to its detriment.”); JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 654 (Tex. 2018) (to prevail on a negligent misrepresentation claim, the plaintiff must show, inter alia, that it experienced pecuniary loss by justifiably relying on the representation); Griffith Truck & Equip., Inc. v. Flash Tank Servs., Inc., No. 14-21-00331-CV, 2022

2019See JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018) (noting that one of the elements of a common law fraud claim is that the plaintiff suffered injury as a result of the defendant’s conduct); id. at 653–54 (noting that elements of a negligent misrepresentation claim include that the plaintiff “suffer[ed] pecuniary loss by justifiably relying on the representation”); First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214 , 220–21 (Tex. 2017) (noting that to recover on a breach-of-fiduciary-duty claim for actual damages, the plaintiff must sh

2021Consistent with the ordinary meaning of the term “false information,” longstanding and uniform case law instructs that “[t]he term ‘false information,’ as used in the elements of a negligent misrepresentation claim, means a misstatement of existing fact, not a promise of future conduct.” Bexar-Mar Int’l, LLC v. Combi Lift GMBH, No. 01-19-00171-CV, 2020 WL 4979527 , at *10 (Tex. App.—Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.); see also Crane v. Hanna, No. 13-18-00534-CV, 2020 WL 3478673 , at *3 (Tex. App.—Corpus Christi–Edinburg June 25, 2020, no pet.) (mem. op.); First Bank v. Brum

2021See Maddox v. Vantage Energy, LLC, 361 S.W.3d 752 , 760 n.9 (Tex. App.— Fort Worth 2012, pet. denied) (setting out the elements of a negligent- misrepresentation claim, including that the plaintiff justifiably relied on the information supplied by the defendant in the course of the defendant’s profession and 8 Timpte Indus., Inc. 286 S.W.3d at 310 (noting that a no-evidence motion must be specific in challenging the evidentiary support for a claim’s element).

2010Importantly, the false information complained of in a negligent misrepresentation claim "must be a misstatement of an existing fact rather than a promise of future conduct." Scherer v. Angell, 253 S.W.3d 777, 781 (Tex. App.–Amarillo 2007, no pet.) (citing Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 379 (Tex. App.–Houston [1st Dist.] 2007, no pet.)); see also C.E.

2010Importantly, the false information complained of in a negligent misrepresentation claim "must be a misstatement of an existing fact rather than a promise of future conduct." Scherer v. Angell , 253 S.W.3d 777, 781 (Tex. App.-Amarillo 2007, no pet.) (citing Miller v. Raytheon Aircraft Co. , 229 S.W.3d 358, 379 (Tex. App.-Houston [1st Dist.] 2007, no pet.)); see also C.E.

2024“When a negligent misrepresentation claim is based upon allegedly false information about a future promise rather than an existing fact, the claim sounds not in tort, but in contract.” Gay v. City of Wichita Falls, 457 S.W.3d 499, 508 (Tex. App.—El Paso 2014, no pet) (citations omitted).

2018See Lindsey Construction, Inc., 541 S.W.3d at 366 ; Gay v. City of Wichita Falls, 457 S.W.3d 499, 508 (Tex. App.—El Paso 2014, no pet.); Mañon, 142 S.W.3d at 388 .

2024See, e.g., Brumitt, 564 S.W.3d at 495 (negligent representation claim failed as a matter of law when based on “alleged promises or alleged representations by First Bank that it would close and fund the loan to DTSG on a given date in the future”); Barnett v. Legacy Bank of Tex., No. 11-02-00114-CV, 2003 WL 22358578 , at *8 (Tex. App.—Eastland Oct. 16, 2003, pet. denied) (mem. op.) (finding the promise to provide additional funds if another lender did not do so was a promise of future conduct).

2021Consistent with the ordinary meaning of the term “false information,” longstanding and uniform case law instructs that “[t]he term ‘false information,’ as used in the elements of a negligent misrepresentation claim, means a misstatement of existing fact, not a promise of future conduct.” Bexar-Mar Int’l, LLC v. Combi Lift GMBH, No. 01-19-00171-CV, 2020 WL 4979527 , at *10 (Tex. App.—Houston [1st Dist.] Aug. 25, 2020, no pet.) (mem. op.); see also Crane v. Hanna, No. 13-18-00534-CV, 2020 WL 3478673 , at *3 (Tex. App.—Corpus Christi–Edinburg June 25, 2020, no pet.) (mem. op.); First Bank v. Brum

2022Gen., State of Cal., 561 F.3d 920 , 925–26 (9th Cir. 2009) (matter of public concern included statements about “discharges of raw sewage into the environment and exposure of public employees to dangerous contaminants”); Hometown Props., Inc. v. Fleming, 680 A.2d 56, 64 (R.I. 1996) (matter of public concern included statements about “potential environmental contamination”).7 Accordingly, the negligent misrepresentation claim is based on or in response to Union Pacific’s exercise of the right of free speech.

2022Gen., State of Cal., 561 F.3d 920 , 925–26 (9th Cir. 2009) (matter of public concern included statements about “discharges of raw sewage into the environment and exposure of public employees to dangerous contaminants”); Hometown Props., Inc. v. Fleming, 680 A.2d 56, 64 (R.I. 1996) (matter of public concern included statements about “potential environmental contamination”).7 Accordingly, the negligent misrepresentation claim is based on or in response to Union Pacific’s exercise of the right of free speech.

2016See Khan v. GBAK Props., Inc., 371 S.W.3d 347, 357 (Tex.App.-Houston [1st Dist.] 2012, no pet.) (holding summary judgment is appropriate when plaintiff pleads facts affirmatively negating its cause of action).

2015See Khan v. GBAK Props., Inc., 371 S.W.3d 347, 357 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (holding summary judgment is appropriate when plaintiff pleads facts affirmatively negating its cause of action).

2013See Grant Thornton LLP, 314 S.W.3d at 920 .

2013Grant Thornton LLP, 314 S.W.3d at 923, n. 15 . .

2011See Ervin, 234 S.W.3d at 176 ("A negligent misrepresentation claim is not the equivalent of a professional malpractice or negligence claim.”).

2011See Ervin , 234 S.W.3d at 176 (“A negligent misrepresentation claim is not the equivalent of a professional malpractice or negligence claim.”).

2010Importantly, the false information complained of in a negligent misrepresentation claim "must be a misstatement of an existing fact rather than a promise of future conduct." Scherer v. Angell, 253 S.W.3d 777, 781 (Tex. App.–Amarillo 2007, no pet.) (citing Miller v. Raytheon Aircraft Co., 229 S.W.3d 358, 379 (Tex. App.–Houston [1st Dist.] 2007, no pet.)); see also C.E.

2010Importantly, the false information complained of in a negligent misrepresentation claim "must be a misstatement of an existing fact rather than a promise of future conduct." Scherer v. Angell , 253 S.W.3d 777, 781 (Tex. App.-Amarillo 2007, no pet.) (citing Miller v. Raytheon Aircraft Co. , 229 S.W.3d 358, 379 (Tex. App.-Houston [1st Dist.] 2007, no pet.)); see also C.E.

2009Jeffries v. Pat A. Madison, Inc., 269 S.W.3d 689, 691 (Tex. App.–Eastland 2008, no pet.).

2009Jeffries v. Pat A. Madison, Inc. , 269 S.W.3d 689, 691 (Tex. App.-Eastland 2008, no pet.).

2004See Miksch v. Exxon Corp., 979 S.W.2d 700, 706 (Tex.App.-Houston [14th Dist.] 1998, pet. denied).

2004See Miksch v. Exxon Corp ., 979 S.W.2d 700, 706 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).

2018D.S.A., Inc. v. Hillsboro ISD, 973 S.W.2d 662 , 663–64 (Tex. 1998) (op. on reh’g) (noting that dispensing with the requirement for an injury independent of the breach of contract “would potentially convert every contract interpretation dispute into a negligent misrepresentation claim”).

2008“Repudiating the independent injury requirement for negligent misrepresentation claims would potentially convert every contract interpretation dispute into a negligent misrepresentation claim.” D.S.A., Inc., 973 S.W.2d at 664 .

2023If the contract language contains such an expression, then courts proceed to analyze whether the disclaimer should be prevail on a fraud claim, a plaintiff must prove that it actually and justifiably relied on a factual misrepresentation to its detriment.”); JPMorgan Chase Bank, N.A. v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 654 (Tex. 2018) (to prevail on a negligent misrepresentation claim, the plaintiff must show, inter alia, that it experienced pecuniary loss by justifiably relying on the representation); Griffith Truck & Equip., Inc. v. Flash Tank Servs., Inc., No. 14-21-00331-CV, 2022

2012See Italian Cowboy Partners, Ltd., 341 S.W.3d at 338 ; Fed.

2018See Lindsey Construction, Inc., 541 S.W.3d at 366 ; Gay v. City of Wichita Falls, 457 S.W.3d 499, 508 (Tex. App.—El Paso 2014, no pet.); Mañon, 142 S.W.3d at 388 .

2018See Lindsey Construction, Inc., 541 S.W.3d at 366 ; Gay, 457 S.W.3d at 508 ; Mañon, 142 S.W.3d at 388 .

2015Miller Global Prop., LLC v. Marriott Int’l, Inc., 418 S.W.3d 342 , 347–48 (Tex. App.—Dallas 2013, pet. denied) (in negligent misrepresentation claim, plaintiff must show both actual and justifiable reliance on alleged misrepresentation); AKB Hendrick, LP, 380 S.W.3d at 237–38.

2014See id.

2003See HECI Exploration Co. v. Neel, 982 S.W.2d 881, 885 (Tex.1998) (noting applicability of two-year statute of limitations for negligent misrepresentation).

2001Id. at 886 .

1999See Mehaffy, Rider, Windholz & Wilson v. Central Bank Denver, N.A., 892 P.2d 230, 236 (Colo.1995); Kirkland Constr.

1997Id. at 235-40 ; Kirkland Constr.