Wes Burch and Janice Burch d/b/a Integrative Communications v. Technical Systems Integrators, LLC

Filing 43

OPINION AND ORDER granting in part and denying in part 23 Motion for Leave to File Amended Pleading; insofar as the Plaintiffs Motion seeks leave to add claims for breach of fiduciary duty and promissory estoppel, it is DENIED; insofar as the Plain tiffs Motion (Instrument no. 23) seeks to add a claims for exemplary damages, it is GRANTED and the exemplary damages claim WILL BE considered a part of the Plaintiffs live complaint.(Signed by Magistrate Judge John R Froeschner) Parties notified.(sanderson, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
WES BURCH and JANICE BURCH
d/b/a Integrative Communications
V.
TECHNICAL SYSTEMS INTEGRATORS,
LLC

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CIVIL ACTION NO. G-11-192

OPINION AND ORDER
On July 24, 2012, the Court conducted a Hearing on the Plaintiffs’“Motion for Leave to
File Amended Pleading” (Instrument no. 23) which seeks permission to file a “Second Amended
Complaint” adding claims for breach of fiduciary duty, promissory estoppel and exemplary
damages; the Motion is opposed by the Defendant. Having now considered the Motion, the
relevant submissions, the arguments of counsel and the applicable law, the Court issues this
Opinion and Order.
The Court finds that it would be futile to allow Plaintiffs to add claims for breach of
fiduciary duty and promissory estoppel. There is no evidence that a confidential relationship
existed between the Plaintiffs and the Defendant prior to their entry into the “Managed
Deployment Statement of Work” agreement made the basis of this action, therefore, under Texas
law, no fiduciary relationship exists to support a breach of fiduciary duty claim. Schlumberger
Technology Corp. v. Swanson, 959 S.W. 2d 171, 177 (Tex. 1997) The existence of the written
agreement between the Parties, which Plaintiffs concede contains the “promises” they claim were
made by Defendant, precludes the assertion of a promissory estoppel action. Subaru of America,
Inc. v. David McDavid Nissan, Inc., 84 S.W. 3d 212, 226 (Tex. 2002)

It is, therefore, ORDERED that insofar as the Plaintiffs’ Motion (Instrument no. 23) seeks
leave to add claims for breach of fiduciary duty and promissory estoppel, it is DENIED.
In their “live” complaint, the Plaintiffs have asserted a cause of action for fraud. A
successful fraud claim can support an award of exemplary damages and the addition of such a
claim, although tardy, will not jeopardize the current trial setting of August 20, 2012, and would
afford Plaintiffs the opportunity for complete relief.
It is, therefore, further ORDERED that insofar as the Plaintiffs’ Motion (Instrument no.
23) seeks to add a claims for exemplary damages, it is GRANTED and the exemplary damages
claim WILL BE considered a part of the Plaintiffs’ “live” complaint.
DONE at Galveston, Texas, this

24th

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day of July, 2012.