Peak Technical Services, Inc. v. Land & Sea Engineering LLC et al

Filing 37

MEMORANDUM AND OPINION entered DENYING 19 MOTION for Partial Summary Judgment, GRANTING 28 MOTION for Partial Summary Judgment.(Signed by Judge Lee H Rosenthal) Parties notified.(leddins, )

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
PEAK TECHNICAL SERVICES, INC.,

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Plaintiff,
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v.
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LAND & SEA ENGINEERING, LLC., et al., §
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Defendants.
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CIVIL ACTION NO. H-10-1568

MEMORANDUM AND OPINION
This is a contract dispute. Peak Technical Services, Inc. (“Peak”) agreed to provide technical
staff to support Land & Sea Engineering’s1 work designing cranes for offshore oil platforms
pursuant to a ODS International purchase order. Land & Sea and ODS International are separate
companies owned by Richard Hancock. Peak alleges that Land & Sea Engineering owes it
$123,867.03 under their agreement and that ODS International breached a subsequent agreement
with Peak guaranteeing Land & Sea’s debt. Peak also alleges that both Land & Sea and ODS
International fraudulently induced it to continue providing engineering staff after Land & Sea failed
to pay an invoice.
ODS International has moved for summary judgment on Peak’s claims that ODS
International fraudulently induced Peak to continue providing engineering staff after Land & Sea
failed to pay an invoice and that ODS International breached its promise to guarantee Land & Sea’s
debt. (Docket Entry Nos. 19, 28, 29). Peak responded, (Docket Entry Nos. 22, 31), and ODS

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Land & Sea used to be “ODS Engineering.” It changed its name in 2009. This opinion refers only to
Land & Sea.

International replied to Peak’s response to the motion for summary judgment on fraud, (Docket
Entry No. 23).
Based on the motions, responses, and reply; the summary judgment evidence; and the
applicable law, the motion for summary judgment on the fraud claim, (Docket Entry No. 28), is
granted. The motion for summary judgment on Peak’s breach of contract claim against ODS
International, (Docket Entry No. 19), is denied. The reasons for these rulings are explained below.
I.

Factual Background
ODS International, a Texas corporation, is an oilfield supply and service company that

provides equipment and components for drilling rigs and production platforms used in oil and gas
exploration. Richard Hancock is its sole director and shareholder. (Docket Entry No. 28, Ex. B,
Richard Hancock Depo., 7). Mike Dunham was its finance manager and Steve Curry was its
engineering manager.
Dunham testified that ODS International also managed the administrative duties of the other
defendant, Land & Sea, under an administrative-services agreement. (Docket Entry No. 28, Ex. C,
Mike Dunham Depo., 5). Land & Sea, formerly called “ODS Engineering, LLC,” is a California
engineering and engineering design company. Hancock was its only owner. Steve Curry and
another individual ran Land & Sea’s day-to-day operations until June or July of 2009, when it began
to wind down its business. (Docket Entry No. 28, Ex. B, Richard Hancock Depo., 13–14); (Docket
Entry No. 31, Ex. F, Mike Dunham Depo., 21).
In October 2008, ODS International issued a purchase order to Land & Sea to design three
cranes for offshore oil platforms. The cranes were part of ODS International’s work under a contract
with Atwood Oceanics. (Docket Entry No. 28, Ex. B, Richard Hancock Depo., 22). Land & Sea

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in turn contracted with the plaintiff, Peak, to provide contract engineers and other staff for the cranedesign work. Under the Peak contract, Land & Sea would pay Peak $47.96 for each hour worked
by its contractors. Payment was to be weekly. The contract stated that Peak’s invoices were due
on receipt and that interest would be added if payment was not received within fifteen days of the
invoice date. (Docket Entry No. 16, Original Complaint, Ex. A).
Peak claims that the staff contract engineers it provided worked for both Land & Sea and
ODS International to perform ODS International’s duties under the Atwood contract. John Salvucci,
a Peak account manager, and Ben Seversky, a Peak vice-president, stated in sworn affidavits that
Peak’s contract engineers worked for both Land & Sea and ODS International and that some of the
work for ODS International was at its request. (Docket Entry No. 31, Ex. A, John Salvucci Aff., ¶ 4;
Ex. B, Ben Seversky Aff., ¶¶ 3–4). Salvucci also stated that Peak’s contract engineers’ work was
performed “under a tight deadline” and that he received only “positive feedback from the ODS
entities regarding [the crane designs] and the work performed by Peak’s contractors.” (Docket Entry
No. 31, Ex. A, John Salvucci Aff., ¶ 6).
Peak submitted weekly invoices to Land & Sea for its contractors’ work. (Docket Entry No.
16, Original Complaint, Ex. A). Dunham testified that Land & Sea approved the invoices and
forwarded them to ODS International for processing and payment, as provided by the
administrative-services agreement. (Docket Entry No. 28, Ex. C, Mike Dunham Depo., 16–17).
Dunham testified that he did not inform Peak of this procedure until February 2009. (Id., 54).
On February 23, 2009, Land & Sea failed to timely pay an invoice. Salvucci stated in his
affidavit that he contacted “Steve Curry, Mike Dunham and others employed at the ODS entities’
accounts payable department on [February 23, 2009] and off and on through the middle of Spring

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2010. During these verbal communications, the ODS accounts payables employees, Steve Curry,
and Mike Dunham on behalf and with apparent authority of the ODS entities, made continuous and
repeated representations, statements and promises to me that the ODS entities would pay for all the
work performed and asked for Peak to continue to supply its contractors.” (Docket Entry No. 31,
Ex. A, John Salvucci Aff., ¶ 7). Seversky’s testimony was the same. (Docket Entry No. 31, Ex. B,
Ben Seversky Aff., ¶ 6). Salvucci and Severksy both testified that even though Land & Sea never
paid Peak after the missed invoice, Peak continued to provide contractor services through the
completion of the crane design at the end of June 2009. (Id., ¶ 6); (Docket Entry No. 31, Ex. A,
John Salvucci Aff., ¶ 7). On April 28, 2010, after the completion of Peak’s work, Seversky received
an email from Hancock stating, “Please accept our apologies. This is not deliberate. It is and will
always remain our intent to pay Peak in full for the services it has completed but until our clients
start releasing payments to us we are struggling.” (Docket Entry No. 31, Ex. B, Ben Seversky Aff.,
¶ 7 & Ex. 1).2
Hancock testified that in June or July 2009, he decided to wind down Land & Sea’s business.
He testified that Land & Sea paid its outstanding debts except for the money owed to Peak. (Docket
Entry No. 31, Ex. E. Richard Hancock Depo., 90–91). Dunham testified that he and Hancock
realized that Land & Sea had lost $670,000.00 and “that the economy, where it was standing, we
could no longer function as a company.” (Docket Entry No. 31, Ex. F, Mike Dunham Depo., 21).

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Dunham testified that upon completion of the crane designs, Land & Sea delivered them to ODS
International which determined that the designs were deficient and unsafe. Dunham testified that ODS
International redesigned the cranes at a cost of $1,000,000, which delayed the project. (Docket Entry No.
28, Ex. C, Mike Dunham Depo., 71–72).

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Dunham also stated that there was no chance the company would revive because business had
slowed and there was “no one needing that type of work.” (Id., 83).
Peak filed this lawsuit on May 3, 2010. The original complaint asserted breach of contract
claims against Land & Sea and ODS International. (Docket Entry No. 1). Peak amended its
complaint to assert claims for fraud and promissory estoppel. (Docket Entry No. 16).
In its motion for summary judgment on Peak’s fraud claim, ODS International argues that
Peak has not identified or submitted summary judgment evidence showing that when its agents or
Land & Sea’s agents promised to pay Peak under the contract, those promises were made with the
intent not to perform. Peak responds that the evidence that Land & Sea wound down its business
shortly after Peak completed its work provides sufficient circumstantial evidence of fraudulent
intent. As to the contract claim, ODS International argues that there is no evidence of a valid
contract between it and Peak under which it assumed or guaranteed Land & Sea’s debt to Peak.
ODS International argues that to the extent there is evidence of an oral guarantee, that contract is
void under the statute of frauds. Peak responds that ODS International orally promised to pay Land
& Sea’s debt and that this promise is outside of the statute of frauds under Texas’s “main purpose”
doctrine.
The parties’ arguments are analyzed below.
II.

Summary Judgment
Summary judgment is appropriate if no genuine issue of material fact exists and the moving

party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). “The movant bears the
burden of identifying those portions of the record it believes demonstrate the absence of a genuine

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issue of material fact.” Triple Tee Golf, Inc. v. Nike, Inc., 485 F.3d 253, 261 (5th Cir. 2007) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322–25 (1986)).
If the burden of proof at trial lies with the nonmoving party, the movant may satisfy its initial
burden by “‘showing’ — that is, pointing out to the district court — that there is an absence of
evidence to support the nonmoving party’s case.” See Celotex, 477 U.S. at 325. While the party
moving for summary judgment must demonstrate the absence of a genuine issue of material fact, it
does not need to negate the elements of the nonmovant’s case. Boudreaux v. Swift Transp. Co., 402
F.3d 536, 540 (5th Cir. 2005) (citation omitted). “A fact is ‘material’ if its resolution in favor of one
party might affect the outcome of the lawsuit under governing law.” Sossamon v. Lone Star State
of Texas, 560 F.3d 316, 326 (5th Cir. 2009) (quotation omitted). “If the moving party fails to meet
[its] initial burden, the motion [for summary judgment] must be denied, regardless of the
nonmovant’s response.” United States v. $92,203.00 in U.S. Currency, 537 F.3d 504, 507 (5th Cir.
2008) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
When the moving party has met its Rule 56(c) burden, the nonmoving party cannot survive
a summary judgment motion by resting on the mere allegations of its pleadings. The nonmovant
must identify specific evidence in the record and articulate how that evidence supports that party’s
claim. Baranowski v. Hart, 486 F.3d 112, 119 (5th Cir. 2007). “This burden will not be satisfied
by ‘some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated
assertions, or by only a scintilla of evidence.’” Boudreaux, 402 F.3d at 540 (quoting Little, 37 F.3d
at 1075). In deciding a summary judgment motion, the court draws all reasonable inferences in the
light most favorable to the nonmoving party. Connors v. Graves, 538 F.3d 373, 376 (5th Cir. 2008).

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III.

The Fraud Claim
A.

The Legal Standards

The elements of fraud in Texas are: (1) the defendant made a representation to the plaintiff;
(2) the representation was material; (3) the representation was false; (4) when the defendant made
the representation the defendant knew it was false or made the representation recklessly and without
knowledge of its truth; (5) the defendant made the representation with the intent that the plaintiff act
on it; (6) the plaintiff relied on the representation; and (7) the representation caused the plaintiff
injury. Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, 607 F.3d 1029, 1032–33 (5th
Cir. 2010) (citing Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.
2001)).
“A ‘mere failure to perform a contract is not evidence of fraud.’” U.S. Quest Ltd. v.
Kimmons, 228 F.3d 399, 403 (5th Cir. 2000) (quoting Formosa Plastics Corp. USA v. Presidio
Eng’rs and Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998)). But “[a] promise of future
performance may form the basis of a fraud claim if the promise was made with no intention of
performing at the time the promise was made.” Dynegy, Inc. v. Yates, --- S.W.3d ----, No. 04-1000041-CV, 2011 WL 646571, at * (Tex. App.—San Antonio Feb. 23, 2011, no pet.) (citing Formosa
Plastics, 960 S.W.2d at 48); see also Tony Gullo Motors I, LP v. Chapa, 212 S.W.3d 299, 304 (Tex.
2006) (“A contractual promise made with no intention of performing may give rise to an action for
fraudulent inducement.”). “Evidence must be presented that a representation was made with the
intent to deceive, and with no intention of performing as represented, at the time the representation
was made.” Dynegy, --- S.W.3d. ----, 2011 WL 646571, at *10 (citing Formosa, 960 S.W.2d at 48;
Spoljaric v. Percival Tours, Inc., 708 S.W.2d 432, 434 (Tex. 1986)). “The speaker’s intent at the

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time of the representation may be inferred from the speaker’s subsequent acts after the
representation was made.” Id. (citing Spoljaric, 708 S.W.2d at 434). “‘Slight circumstantial
evidence of fraud, when considered with the breach of promise to perform, is sufficient to support
a finding a fraudulent intent.’” Spoljaric, 708 S.W.2d at 435 (quoting Maulding v. Niemeyer, 241
S.W.2d 733, 738 (Tex. Civ. App. 1951)); see also Travelers Exploration Co. v. Nomeco Oil & Gas
Co., 30 F.3d 1490, 1994 WL 397633, at *3 (5th Cir. July 11, 1994) (unpublished table decision)
(“Slight circumstantial evidence is sufficient to establish a finding a fraudulent intent” (internal
quotations omitted)). “To determine whether a statement by the corporation was made with the
requisite scienter, the appropriate focus is on the state of mind of the individual corporate official
who made the statement rather than on the collective knowledge of all the corporation's officers and
employees.” Dynegy, --- S.W.3d ----, 2011 WL 646571, at *11 (citing Southland Sec. Corp. v.
INSpire Ins. Solutions, Inc., 365 F.3d 353, 366 (5th Cir. 2004)).
B.

Analysis

The record includes evidence that Steve Curry, Mike Dunham, and “others employed at the
ODS entities” made oral representations to Peak that it would be compensated for its contractor
services after Land & Sea failed to pay an invoice on February 23, 2009. (Docket Entry No. 31, Ex.
A, John Salvucci Aff., ¶ 7; Ex. B, Ben Seversky Aff., ¶ 6). Hancock made the same representation
in an April 28, 2010 email, well after Peak had finished its work for Land & Sea. (Docket Entry No.
31, Ex. B, Ben Seversky, ¶ 7 & Ex. 1). The evidence also shows that Peak continued to provide
contractor services to Land & Sea through the crane-design-project completion in June 2009. Land
& Sea has not paid for the services. (Docket Entry No. 31, Ex. A, John Salvucci Aff., ¶ 7; Ex. B,
Ben Seversky Aff., ¶ 6). Land & Sea’s failure to pay Peak is not sufficient evidence of fraud to

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withstand summary judgment. Kimmons, 228 F.3d at 403. The issue is whether Peak has identified
or produced even slight circumstantial evidence showing that when Curry, Dunham, “others
employed at ODS,” represented that Land & Sea would pay Peak for its contractor services, these
individuals did not intend to pay. Formosa, 960 S.W.2d at 48; Spoljaric, 708 S.W.2d at 434;
Dynegy, --- S.W.3d. ----, 2011 WL 646571, at *10.
The only evidence Peak identified to show fraudulent intent is that Land & Sea decided to
wind down its business in June or July of 2009, shortly after Peak completed its work on the cranedesign project. Peak argues that this evidence shows that “the ODS entities were stringing Peak
along with representations, statement and promises of payment, knowing all along that once the
crane designs were complete, the ODS entities would not pay Peak for all of its work.” (Docket
Entry No. 31, at 8). Peak has not cited any Texas case holding that evidence that a company decided
to close its operations shortly after promising to make payments due under a contract provides
circumstantial evidence of fraudulent intent. Texas courts have found that the following provide
sufficient circumstantial evidence of fraudulent intent: (1) testimony by a company’s agent that he
misrepresented the company’s intent to pay a contractual obligation, Safety Anchor Prods., Inc. v.
Pauree, No. 08-01-00341-CV, 2003 WL 152829, at *2 (Tex. App.—El Paso Jan. 23, 2009, no pet.);
(2) an agent’s later denial that he ever made an agreement to pay the company’s contractual
obligations, Harco Energy, Inc. v. The Re-entry People, Inc., 23 S.W.3d 389, 395 (Tex.
App.—Amarillo 2000, no pet.); and (3) evidence that a company entered into a subsequent contract
violating its obligations under a previous contract, Oliver v. Rogers, 976 S.W.2d 792, 804 (Tex.
App.—Houston [1st Dist.] 1998, no pet.). In the present case, there is no testimony or other

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evidence that Land & Sea did not intend to pay Peak when it promised to do so, denied that it had
promised to pay Peak, or entered into additional contracts after it failed to pay Peak.
There is also no evidence that when Curry, Mike Dunham, and “others employed at the ODS
entities” assured Peak that it would be paid, any of these employees knew that Land & Sea would
wind down in June or July 2009 and would not pay Peak amounts due under the contract. Dynegy,
--- S.W.3d ----, 2011 WL 646571, at *11; Southland Sec. Corp., 365 F.3d at 366. Even assuming
that Curry, Dunham, or others knew that Land & Sea would soon wind down its business, there is
no evidence that any of these individuals knew or intended that Peak would not eventually be paid
for its contractors’ services. To the contrary, the evidence shows that as late as April 28, 2010 —
less than one week before Peak filed this lawsuit — Hancock continued to assure Peak that it would
be compensated for its services, even though Peak was no longer providing contractors and Hancock
and Dunham had decided to wind down Land & Sea’s business. As Dunham testified, “[a]nd the
only thing I would reiterate is ODS Engineering did always plan on paying the bills, and if we would
have generated the cash, we would have been more than happy to—to pay.”). (Docket Entry No.
22, Ex. E, Mike Dunham Depo., 92). The evidence also shows that after Land & Sea wound down
its business, it paid its outstanding obligations except what it owed Peak.
The evidence shows that ODS International’s and Land & Sea’s agents promised to pay
Peak, and later was unable to do so. Under Texas law, this is not sufficient to raise a fact issue as
to fraud.
IV.

The Breach of Contract Claim
A.

The Legal Standards

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The essential elements of a breach of contract claim in Texas are: (1) the existence of a valid
contract; (2) performance or tendered performance by the plaintiff; (3) breach of contract by the
defendant; and (4) damages sustained by the plaintiff as a result of the breach. Smith Intern., Inc.
v. Egle Group, LLC, 490 F.3d 380, 387 (5th Cir. 2007); Aguilar v. Segal, 167 S.W.3d 443, 450 (Tex.
App.—Houston 2005, pet. denied). “The elements of a valid contract are: (1) an offer; (2) an
acceptance; (3) a meeting of the minds; (4) each party’s consent to the terms; and (5) execution and
delivery of the contract with the intent that it be mutual and binding. Roman v. Roman, 193 S.W.3d
40, 50 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
A promise or agreement within the statute of frauds is not enforceable unless the promise or
agreement, or a memorandum of it, is in writing and signed by the person to be charged or by
someone lawfully authorized to sign for him. TEX. BUS. & COM. CODE § 26.01(a). The statute of
frauds applies to “a promise by one person to answer for the debt, default, or miscarriage of another
person.” Id. § 26.01(b)(2). “[T]he basic reason for requiring that a promise to answer for the default
of another be in writing is that the promisor has received no direct benefit from the transaction.”
Cooper Petroleum Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889, 895 (Tex.1969). But a promise
within this suretyship provision of the statute of frauds may be enforceable without a writing under
the “main purpose doctrine.” Chubb Lloyds Ins. Co. of Tex. v. Andrew’s Restoration, Inc., 323
S.W.3d 564, 572 (Tex. Ap.—Dallas Aug. 20, 2010, no pet.).
“The ‘primary purpose’ or ‘main purpose’ exception to the Statute of Frauds usually arises
when either (1) a promise to pay the debt of a third party is made for the primary benefit of the
promisor, or (2) a contract involving the sale of goods is predominantly for the sale of services.”
GWTP Invs., LP v. SES Americom, Inc., 497 F.3d 578, 482 (5th Cir. 2007) (citing Cooper Petroleum

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Co. v. LaGloria Oil & Gas Co., 436 S.W.2d 889 (Tex. 1969); Propulsion Techs., Inc. v. Attwood
Corp., 369 F.3d 896, 900–01 (5th Cir. 2004)). “Broadly speaking,” the main purpose doctrine
“removes an oral agreement to pay the debt of another from the statute of frauds ‘wherever the main
purpose and object of the promisor is not to answer for another, but to []serve some purpose of his
own . . . .’” Power Entm’t, Inc. v. Nat’l Football League Props., Inc., 151 F.3d 247, 249 (5th Cir.
1998) (quoting Gulf Liquid Fertilizer Co. v. Titus, 354 S.W.2d 378, 386 (1962)).
“Courts have identified three tests to determine if the main-purpose doctrine makes a
particular oral promise enforceable despite the statute of frauds: (1) Did the promissor intend to
become primarily liable for the debt, in effect making it his original obligation, rather than to merely
become a surety for the original obligor?; (2) Was there consideration for the promise?; [and] (3)
Was receipt of the consideration the promissor’s main purpose or leading object in making the
promise, i.e., was the consideration given for the promise primarily for the promissor’s own use and
benefit?” Chubb Lloyds, 323 S.W.3d at 572 (citing Gulf Liquid Fertilizer, 354 S.W.2d at 383); see
also Power Entm’t Inc., 151 F.3d at 249 (same). “The intention of the parties may be determined
by considering all of the surrounding facts and circumstances, including: (1) the words and
expressions used by the parties; (2) the parties’ acts and conduct; (3) whether the services were
rendered before or after the promise; (4) the manner in which the seller carried the account on his
books; (5) the manner in which payments were made; (6) the purpose of the agreement; and (7) the
promisor’s interest in the transaction.” Dynegy,--- S.W.3d. ----, 2011 WL 646571, at *3.
B.

Analysis

Peak has submitted evidence that ODS International agreed to pay Land & Sea’s debt under
circumstances that make the main purpose doctrine applicable. Seversky and Salvucci both

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submitted affidavits stating that Dunham, ODS International’s finance manager, repeatedly assured
them that Peak would be compensated for its services after Land & Sea failed to pay its February
23, 2009 invoice. (Docket Entry No. 31, Ex. A, John Salvucci Aff., ¶ 7; Ex. B, Ben Seversky Aff.,
¶ 6). Hancock’s April 2010 email stating, “[i]t is and will always remain our intent to pay Peak in
full for the services it has completed but until our clients start releasing payments to us we are
struggling,” provides circumstantial evidence that the parties agreed that Peak would continue
working under an agreement that ODS International would pay Land & Sea’s debts. (Id.., ¶ 7). The
fact that Peak continued to provide contractor services after Land & Sea failed to pay the invoice
and after Dunham assured Peak that it would be paid further evidences this agreement and provides
evidence of consideration. See Dynegy, --- S.W.3d. ----, 2011 WL 646571, at *3 (noting that
evidence that work was performed after the agreement supports an agreement under the main
purpose doctrine); Morris v. Carter, 261 S.W.2d 614, 616 (Tex. Civ. App.—Dallas 1953, writ ref’d
n.r.e.) (finding that a promise to pay for repairs to a third party’s car was not subject to the statute
of frauds in part because the promise was made before the repairs were undertaken). ODS
International directly benefitted from Peak continuing to provide contractor services because the
contractors’ work was directly related to ODS International’s contract with Atwood Oceanics. See
Leppke v. Cokinos, Bosien & Young, No. 14-99-00697-CV, 2001 WL 40345, at *6 (Tex.
App.—Houston [1st Dist.] Jan. 18, 2001, no pet.) (noting that an oral promise by a corporation’s
stockholders and directors may not be within the statute of frauds when “their main purpose was to
subserve their own purpose and promote their financial gain”); RESTATEMENT (SECOND)

OF

CONTRACTS § 116 (1981) (“A contract that all or part of a duty of a third person to the promisee
shall be satisfied is not within the Statute of Frauds as a promise to answer for the duty of another

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if the consideration for the promise is in fact or apparently desired by the promisor mainly for his
own economic advantage, rather than in order to benefit the third person.”). Based on this evidence,
a jury could find that ODS International agreed to guarantee Land & Sea’s debt. Under the main
purpose doctrine, that this agreement was not in writing does not prevent its enforcement.
ODS International emphasizes that Peak’s agreement was only with Land & Sea. ODS
International points to evidence showing that it performed only administrative functions for Land
& Sea under an administrative-services agreement and to evidence that it informed Peak of the
limited nature of this arrangement. ODS International argues that because its role in Land & Sea
was only administrative, it could not have reached a guarantee agreement with Peak. Finally, ODS
International points to Hancock’s testimony that it never paid Land & Sea’s debts, but instead only
loaned money to Land & Sea to pay its debts. There is, however, conflicting evidence in the record.
Seversky and Salvucci both stated that Peak contractors performed work for both Land & Sea and
ODS International after Land & Sea failed to pay the February 23, 2009 invoice. There is also
evidence that Dunham, who worked exclusively for ODS International, independently assured Peak
that it would be paid for its contractor services. And while Hancock asserted that ODS International
has never paid Land & Sea’s debts, ODS International has not produced any loan documents.
(Docket Entry No. 22, Ex. D, Hancock Depo., 58–59). The record reveals disputed fact issues
material to determining whether ODS International had an enforceable guarantee agreement. The
record does not entitle ODS International to summary judgment dismissing the breach of contract
claim.

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V.

Conclusion
The motion for summary judgment dismissing the fraud claim, (Docket Entry No. 28), is

granted. The motion for summary judgment dismissing Peak’s breach of contract claim against
ODS International, (Docket Entry No. 19), is denied.
SIGNED on May 27, 2011, at Houston, Texas.

______________________________________
Lee H. Rosenthal
United States District Judge

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