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Frost National Bank v. Heafner

12/2/1999

ng more than a complaint that Frost did not comply with the terms of the deposit account agreement and, if true, Frost's actions contrary to these representations result only in a breach of contract claim. See Crawford, 917 S.W.2d at 14-16 (allegation of mere breach of contract, without more, does not constitute a "false, misleading or deceptive act" in violation of the DTPA).


We sustain issue two.


Recovery for Fraud


In issue three, Frost asserts the evidence is legally and factually insufficient to support the jury's finding of fraud.


A fraud cause of action requires (1) a material misrepresentation, which was false, and (2) that was either known to be false when made or was asserted without knowledge of its truth, (3) which was intended to be acted upon, (4) which was relied upon, and (5) which caused injury. Formosa Plastics Corp. USA v. Presidio Eng'rs and Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998). A promise of future performance constitutes an actionable misrepresentation if the promise was made with no intention of performing at the time it was made. Id. at 48. However, the mere failure to perform a contract is not evidence of fraud. Id. Therefore, Heafner was required to present evidence that Frost made representations with the intent to deceive and with no intention of performing as represented. The evidence must be relevant to Frost's intent at the time the representations were made. Id.


While a party's intent is determined at the time the party made the representation, it may be inferred from the party's actions after the representation is made. Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986). Because intent to defraud is not susceptible to direct proof, it invariably must be proven by circumstantial evidence. Id. at 435. "Slight circumstantial evidence" of fraud, when considered with the breach of promise to perform, is sufficient to support a finding of fraudulent intent. Id.


It is within the jury's province to draw reasonable inferences from the evidence. Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997). If a jury is to infer a fact, it must be able to deduct that fact as a logical consequence from other proven facts. Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.-Houston [1st Dist.] 1993, writ dism'd w.o.j.). It is not enough that the facts raise a mere surmise or suspicion of the existence of the fact or permit a purely speculative Conclusion. Texas Dep't of Corrections v. Jackson, 661 S.W.2d 154, 157 (Tex. App.-Houston [1st Dist.] 1983, writ ref'd n.r.e.). However, when circumstances are consistent with either of two facts and nothing shows that one is more probable than the other, neither fact can be inferred. Gardiner, 859 S.W.2d at 400. Thus, the circumstantial evidence upon which Heafner relies must be of such a character as to be reasonably satisfactory and convincing, and must not be equally consistent with the nonexistence of the ultimate fact. Id. at 401.


Heafner contends the evidence is legally and factually sufficient to support the following fraudulent misrepresentations. Heafner contends that, when she opened her money market account at Frost, Frost falsely represented to her that it would not release her money without her authorization, her money would be kept "safe and secure in the bank," and it would "compare the signature" on proposed withdrawals before releasing any funds from her account. Even if Frost made these representations to Heafner, there is no direct evidence in the record that Frost intended to deceive Heafner when it made them to her.


Heafner argues that Frost's later actions prove its fraudulent intent

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