290 at 71, LLC v. JPMorgan Chase Bank et al

Filing 43

ORDER MOOTING 31 Motion to exclude; GRANTING IN PART 22 Amended Motion for Summary Judgment; GRANTING IN PART 23 Motion for Summary Judgment; DENYING 24 Motion for Summary Judgment. Signed by Judge Sam Sparks. (dm, )

IN THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF TEXAS A U S T IN DIVISION

29 0 AT 71, L.L.C., P l a in t i f f , -v sJ P M O R G A N CHASE BANK, NATIONAL A S S O C I A T I O N , DAN A FOW L K E S , and FEDERAL DEPOSIT INSURANCE COR PORATION A S R ECEIVER FOR W A S H IN G T O N MUTUAL BANK, D ef en d an ts. _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ C a se No. A-09-CA-576-SS

ORDER

B E IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and sp ecifically the Plaintiff 290 at 71, LLC ("Plaintiff")'s Amended Motion for Summary Judgment [#22], D efen d an t JPMorgan Chase Bank ("Chase")'s response thereto [#30] and motion to exclude and o b jectio n s to evidence in support of Plaintiff's motion for summary judgment [#31], Defendant the F ed er al Deposit Insurance Corporation (the "FDIC")'s response [#32], and Plaintiff's reply [#37]; C hase's Motion for Summary Judgment [#23], Plaintiff's evidentiary objections [#25] and response the re to [#27], and Chase's reply [#34]; and the FDIC's Motion for Summary Judgment [#24], P lain tiff's evidentiary objections [#26] and response thereto [#28], the FDIC's response to the ev i d e n tiary objections [#35], and the FDIC's reply in support of its motion for summary judgment [# 3 6 ]. Having considered the aforementioned documents, the case file as a whole, and the applicable law , the Court enters the following opinion and orders.

B ACKG ROUND T h e following is undisputed: in November of 2007, Plaintiff leased a plot of vacant real estate to Washington Mutual ("WAMU"), pursuant to a lease agreement (the "Lease") signed by both parties. See Pl.'s Mot. Summ. J., Affidavit of Bucker Baccus ("Baccus Aff.") at Ex. A. Plaintiff was the lesso r, and WAMU the lessee. There is no dispute the Lease was a valid agreement, or that WAMU in t e n d e d to use the real estate covered by the Lease as the site of a WAMU branch office, although W A M U had not yet done so when WAMU was declared insolvent--thus, the site was never d ev elo p ed , and it remains vacant today. W A M U was declared insolvent by the Office of Thrift Supervision on September 25, 2008. T h e FDIC was immediately appointed as receiver for WAMU, and in that capacity it took over all of W A M U ' s assets and liabilites. That same day, the FDIC executed a "Purchase and Assumption A g re em e n t" (the "PAA") with Chase whereby the FDIC sold or assigned a large portion of WAMU's assets and liabilities to Chase. Baccus Aff. (the "PAA") at Ex. B. It is undisputed that under the PAA, all of WAMU's real property interests are divided into two m ain types, which affects how they are treated under the PAA. For instance, if a leasehold interest p ertain s to a"Bank Premise," the PAA grants Chase a 90-day option to accept or reject the lease, but if the lease does not pertain to a "Bank Premise," then it is classified as "Other Real Estate," and is sold, assigned, transferred, conveyed, and delivered to Chase outright in the PAA. See the PAA §§ 4.6; 3 .1 . It is undisputed both Chase and the FDIC considered the Lease between WAMU and Plaintiff to be a "Bank Premise" lease, such that Chase had a 90-day option to cause the FDIC to assign the Lease to Chase. See id. § 4.6 (granting Chase a 90-day option to cause the FDIC to assign any and all leases for "leased Bank Premises" to Chase).

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O n December 22, 2008, Chase issued a letter to Plaintiff informing it that under the PAA Chase h ad the "option to assume or not assume leases to WAMU," and that Chase had decided not to assume the Lease with Plaintiff. Baccus Aff. at Ex. D. By letter dated February 9, 2009, Plaintiff's attorney resp o n ded that Chase's representatives had already agreed with Plaintiff (on December 1, 2008) to a co m m en cem en t date and a pro-rated rent for the Lease, and Chase was therefore in default under the te rm s of the Lease.1 Baccus Aff. at Ex. E. Around this time, Chase also timely informed the FDIC it would not exercise its option to assume the Lease. O n March 2, 2009, the FDIC sent a letter to Plaintiff's counsel informing him Chase had d ecid ed not to assume the Lease, and the FDIC was therefore required under various statutes to decide w h eth er the lease was "burdensome." Pl.'s Mot. Summ. J., Affidavit of R. Kemp Kasling ("Kasling A ff.") at Ex. A. The letter implied the FDIC, like Chase, considered the Lease to be a leased "Bank P rem ise." Id. On March 23, 2009, the FDIC informed Plaintiff it had exercised its right to find the Lease "burdensome" and was thereby disaffirming, or repudiating, the Lease. See Chase's Mot. S um m . J. at Ex. 2-A. On February 25, 2009, Plaintiff filed suit against Chase and Dana Fowlkes ("Fowlkes") in state district court, claiming the Lease was actually transferred to Chase outright by the FDIC (w itho ut an option) in September of 2008 under the express terms of the PAA, and further that Chase h a d represented to Plaintiff through an agent (Fowlkes) that it assumed the lease and would perform un der it. Plaintiff alleges it relied on these representations, but Chase ultimately breached the lease. P la in tiff therefore brings claims for breach of the Lease and negligent misrepresentation. The FDIC

1 This allegation is also made in the present case. Specifically, Plaintiff alleges Defendant Dana Fowlkes had a p p a r e n t authority to speak on behalf of Chase and represented to Plaintiff sometime in the interim before Plaintiff r e c e i v e d Chase's letter that the Lease would be assumed and rent would be paid by Chase. See Orig. Pet. at ¶ 13.

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in te rv e n e d in the lawsuit as a matter of right, and--after the state district court granted summary jud gm en t in favor of Plaintiff, but before it could enter judgment--timely removed the case to this C ou rt pursuant to the Court's federal question jurisdiction. See 12 U.S.C. § 1819(b)(2); 28 U.S.C. § 13 31 . ANALYSIS I. M o tio n s for Summary Judgment a. L eg a l Standards for Summary Judgment

S u m m ary judgment may be granted if the moving party shows there is no genuine issue of m aterial fact, and it is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In deciding su m m ary judgment, the Court construes all facts and inferences in the light most favorable to the n o n m o v in g party. Richter v. Merchs. Fast Motor Lines, Inc., 83 F.3d 96, 98 (5th Cir. 1996). The stand ard for determining whether to grant summary judgment "is not merely whether there is a su fficien t factual dispute to permit the case to go forward, but whether a rational trier of fact could find for the nonmoving party based upon the record evidence before the court." James v. Sadler, 909 F.2d 8 3 4 , 837 (5th Cir. 1990). B oth parties bear burdens of production in the summary judgment process. Celotex Corp. v. C a trett, 477 U.S. 317 (1986). The moving party has the initial burden of showing there is no genuine issue of any material fact and judgment should be entered as a matter of law. FED. R. CIV. P. 56(c); C elotex, 477 U.S. at 322­23; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247­48 (1986). The n o n m o v in g party must then come forward with competent evidentiary materials establishing a genuine fact issue for trial, and may not rest upon mere allegations or denials of its pleadings. Anderson, 477 U .S . at 256­57; Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586­87 (1986).

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N either "conclusory allegations" nor "unsubstantiated assertions" will satisfy the non-movant's burden. W allace v. Tex. Tech Univ., 80 F.3d 1042, 1047 (5th Cir. 1996). b. T h e Controversy

T he fundamental dispute presented in all of the motions for summary judgment is the same: w h eth er or not the Lease is properly classified as a "Bank Premises" lease under the terms of the PAA (a n d whether Plaintiff has the right to argue it is not). Plaintiff claims because the Lease obviously d o es not fall within the express definition of "Bank Premises" in the PAA, it was therefore wholly assigned and transferred to Chase as "Other Real Estate" under the terms of the PAA on September 2 5 , 2008. Therefore, Plaintiff alleges, he is now (and has been) in privity of estate with Chase, and the FDIC had no right to repudiate the Lease in March of 2009. Chase and the FDIC, for their part, argue Plaintiff is a "stranger" to the PAA and is not in p riv ity with any of the parties thereto (based on their interpretation of the PAA), and therefore Plaintiff h as no right to interpret the PAA or challenge their interpretation of it, nor does Plaintiff have a right to object to their submission of parole evidence to support their own interpretation. The Court turns to these arguments, starting with the language of the PAA itself. c. T h e PAA

A rticle I of the PAA provides, "Capitalized terms used in this Agreement shall have the m e an in g s set forth in this Article I, or elsewhere in this Agreement." PAA at Art. I (emphasis added). A rticle I goes on to define the term "Bank Premises" as follows: "B an k Premises" means the banking houses, drive-in banking facilities, and teller facilities (staffed or automated) together with appurtenant parking, storage and service facilities and structures connecting remote facilities to banking houses, and land on w h ic h the foregoing are located, that are owned or leased by [WAMU] and that are occu pied by [WAMU] as of Bank Closing.

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P A A at Art. I. As stated above, the parties agreed at the hearing that if the Lease is indeed classified as a "Bank Premises" lease, the 90-day option under § 4.6(a) of the PAA applies, and Chase validly ex ercised that option not to assume the Lease. However, if the Lease is not a "Bank Premises" lease, it is an "Other Real Estate" lease under the terms of the PAA, which means it was transferred outright to Chase in September of 2008 without an option not to assume it. The PAA defines the term "Other R eal Estate" as follows: "O th er Real Estate" means all interests in real estate (other than Bank Premises and F ix tu res), including but not limited to mineral rights, leasehold rights, condominium an d cooperative interests, air rights, and development rights that are owned by [W A M U ].2 Id. As stated above, Chase did not have the right to reject or repudiate an "Other Real Estate" lease, bu t did have that right for a "Bank Premises" lease as long as it did so within 90 days. See id., ¶¶ 3.1; 4.6 . No party to this dispute argues the language of the PAA, quoted above, is ambiguous. d. In terp reta tio n of the PAA

B eca u se everything else turns on it, the Court starts with the question of whether Plaintiff is in privity of estate with Chase.3 If the entire Lease was transferred outright to Chase under the PAA, C hase is in privity of estate with Plaintiff. This is so because the transfer of an entire leasehold interest

"Fixtures" is defined as "those leasehold improvements, additions, alterations, and installations constituting a l l or a part of Bank Premises and which were acquired, added, built, installed or purchased at the expense of [WAMU], r e g a r d l e s s of the holder of legal title thereto as of Bank Closing." PAA at Art. I. Although Plaintiff also argues he is a third-party beneficiary of the PAA (in addition to the argument he is in p r iv ity of estate with Chase), the argument merits little discussion. Texas courts are very reluctant to recognize thirdp a r t y beneficiaries to a contract. See MJR Corp. v. B & B Vending Co., 760 S.W . 2 d 4, 12 (Tex. App.­Dallas 1988, writ d e n ie d ) (stressing Texas "courts will not create a third-party beneficiary contract by implication") (emphasis in o r ig in a l ) ) . There is a presumption against third-party beneficiary agreements, and the parties to the contract must have s p e c i f ic a l l y intended to create such a third-party beneficiary. Brunswick Corp. v. Bush, 829 S.W.2d 352, 354 (Tex. A p p . ­ F o r t W o r th , 1992). In determining intent, courts presume the parties contracted only for themselves and not for t h e benefit of third parties, unless the obligation to the third party is clearly and fully spelled out. Id. Because there is u n d is p u t e d ly no clear reference in the PAA to Plaintiff, the Court finds he is not a third-party beneficiary to the a g re e m e n t. He may well be an incidental beneficiary to the contract, but an incidental beneficiary may not enforce a c o n t r a c t . Bruner v. Exxon Co., U.S.A., A Div. of Exxon Corp., 752 S.W . 2 d 679, 683 (Tex. App.­Dallas 1988).
3

2

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(w ith o u t retaining any reversionary interest) is, by definition, an assignment.4 Amco Trust, Inc. v. N a ylo r, 317 S.W.2d 47, 50 (Tex.1958). After a lessee transfers an entire leasehold interest, the assignee is thereafter said to be in "privity of estate" with the lessor. Id. This privity of estate renders th e assignee liable for the rent as set out in the lease--in other words, the assignee's signature on the agreem ent through which it acquires the contract rights of the lease makes the assignee liable for rental paym ents in accordance with the lease as if the assignee were the original lessee. Id.; and see D ou bleda ve's Pizzaworks, Inc. v. Corder, 1994 WL 652770 at *2 (Tex. App.­Houston [14 th Dist.], 19 94 ). Accordingly, to determine whether Chase is in privity with Plaintiff it is essential to interpret th e PAA and understand what happened to the Lease under its unambiguous terms. If the PAA's d efinition of "Other Real Estate" does include the Lease, then the FDIC necessarily transferred its en tire interest in the Lease to Chase in September of 2008, or "assigned" the Lease to Chase, and P lain tiff has been in privity of estate with Chase since that time. The central argument of Chase and th e FDIC--that Plaintiff has no right to interpret the PAA because it is neither a party to the agreement no r in privity with the parties, see Chase's Mot. Summ. J. at 2--would be an ironic barrier to P laintiff's argument if allowed, as if Plaintiff is correct in its interpretation of the PAA, then Plaintiff is in privity with Chase. Under Plaintiff's interpretation of the PAA, Chase was assigned the Lease in its entirety in September 2008. In that case, the FDIC's repudiation of the Lease (long after it had been transferred to Chase) was meaningless. The vehement arguments of the FDIC and Chase that P lain tiff's case "fails at the threshold" because of Plaintiff's lack of standing to interpret an agreement to which it is a stranger are a catch-22 that would keep Plaintiffs from asserting its rights under the

However, where the original lessee conveys less than his entire leasehold interest, it is a "sublease" rather than a n assignment. Id. In the case of a sublease, there is no privity between the landlord and the transferee.

4

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Lease against the new lessee even if a valid assignment of the Lease did occur. A moment's reflection reveals that all these arguments depend on the outcome of the first: whether the Lease was indeed tran sferred to Chase under the terms of the PAA on September 25, 2008. If so, Chase is in privity of estate with Plaintiff and Plaintiff has the right to sue Chase for its breach. Thus, all roads lead back to this central dispute, to which the Court now turns. None of the parties to the dispute have argued at any time the relevant language of the PAA is ambiguous. It is well established that if a contract is unambiguous, construction of the contract is a matter of law, and extrinsic evidence of the intentions of the parties or of general practice or custom is not necessary or proper. Nixon v. First State Bank of Corpus Christi, 540 S.W.2d 817, 820-821 (T ex . Civ. App.­Corpus Christi 1976, ref. n.r.e.); J. R. Gray Company v. Jacobs, 362 S.W.2d 167, 171 (T ex . Civ. App.­Austin 1962, ref. n.r.e.). This doctrine, called the parol evidence rule, provides that in the absence of fraud, accident, or mistake, extrinsic evidence is not admissible to vary, add to, or con tradict the terms of a written instrument that is facially complete and unambiguous. Nat'l Union F ire Ins. Co. v. CBI Indus., Inc., 907 S.W.2d 517, 521 (Tex. 1995). Even if the parties do argue a contract is ambiguous, whether the contract's language is am biguo us is a question of law. Schaefer, 124 S.W.3d at 157. Ambiguity does not arise simply b eca u se the parties offer conflicting interpretations; rather, ambiguity exists only when the contract is suscep tible of two or more reasonable interpretations. Id. Moreover, ambiguity must be evident from the agreement itself; it cannot be created by introducing parol evidence of intent. Fiess v. State Farm L lo yd s, 202 S.W.3d 744, 747 (Tex. 2006). In the present case, the Court finds the language of the PAA is unambiguous as a matter of law, as the provisions are absolutely clear and are not susceptible to more than one reasonable

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inter p re tatio n . The clear and unambiguous language of the PAA indicates the Lease was properly classified as "Other Real Estate" and transferred outright to Chase in September 2008. At the hearing o n this matter, the Court questioned counsel for both Chase and the FDIC, asking whether they could p o in t to a single word in the PAA's definition of "Bank Premises" which would indicate the definition in clu des the vacant lot that is covered by the Lease. Neither could. Mr. Mercer, counsel for the FDIC, h e ld up his Exhibit B-3: the architectural plan of what was proposed to be constructed on the land cov ered by the Lease. He argued the plan clearly shows "Bank Premises." The Court wholly agrees w ith Mr. Mercer that had WAMU ever built all it proposed to build--including a banking house, d riv e-in banking facilities, and telling facilities--on the land, the Lease would no doubt be a Bank P r em ises lease. But, because it is undisputed not an iota of what was planned was actually constructed, an d none of the planned structures existed (much less were occupied by WAMU) on the day of the closing, his exhibit was irrelevant. Thus, the Court finds based on the language of the PAA that the Lease was properly classifed as "Other Real Estate," and was sold, assigned, transferred, conveyed, and delivered to Chase outright in the PAA on September 25, 2008. See the PAA § 3.1. Plaintiff is in privity of estate with Chase becau se of this transfer or assignment, and thereby has standing to bring a cause of action for breach of the Lease against Chase. T h e Court notes that Chase does cite one case which, at first glance, seems to support its p o sitio n : Old Stone Bank v. Fidelity Bank, 749 F. Supp. 147 (N.D. Tex. 1990). The plaintiff in that case, Old Stone, leased a building to Old Fidelity under the "1983 lease." Id. at 148-49. When Old F idelity was eventually declared insolvent, the FDIC was appointed its receiver. Id. at 149. The FDIC p ro m p tly entered into a PAA with New Fidelity, whereby New Fidelity assumed most of the assets and

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liabilities of Old Fidelity. Under the PAA, the 1983 lease was properly classified as a "bank premises" lease (this point was undisputed), and thus New Fidelity had a 90-day option to assume it. Id. at 1495 0 . The point of dispute in Old Stone was whether New Fidelity had actually exercised its option to assum e the 1983 lease--Old Stone believed it had, whereas New Fidelity and the FDIC claimed it had no t. Id. Old Stone Bank sued to enforce the PAA, claiming that when the option was exercised (as Old S ton e believed it had been), "there was an assignment of the 1983 Lease to New Fidelity," which " created privity of estate between Old Stone and New Fidelity," such that "Old Stone ha[d] standing to collect rent from New Fidelity." Id. at 151-52. But the district court held: "In order for its theory to wash, Old Stone must overcome the incredible hurdle of showing the Court how Old Stone Bank, a non-party to the [PAA], derived any benefit or right from such Agreement. Old Stone simply can not m e e t this burden." Id. at 152 (emphasis added). Thus, the district court found Old Stone had no stan d in g to enforce the PAA. A ltho ugh the facts of the Old Stone case are similar to those of the present case, its holding is n o t persuasive. In Old Stone, the district court did not consider Old Stone's privity of estate argument; in stead , it refuted only the idea that Old Stone could be considered a third-party beneficiary under the P A A . See id. Privity of estate was never considered because the court agreed with the FDIC and New F idelity that New Fidelity had not exercised its option under the PAA. And because the FDIC had tran sferred only an option to Old Stone, there was no complete assignment (which requires the transfer of an entire leasehold interest), and thus no privity of estate. Thus, the Old Stone case, in which it was u n d isp u ted the lease in question was a Bank premises lease, is hardly compelling authority.

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C h ase also objects Plaintiff has not shown Chase breached the Lease, as it was the FDIC, not C h ase, that actually sent a letter repudiating the Lease. This argument will no doubt be the subject of later controversy. For the present, however, the Court does not decide whether Plaintiff has fulfilled its obligations under the Lease or whether Chase has breached its obligations; in short, the record is sim p ly not sufficient to determine as a matter of law whether the Lease has been breached (especially becau se Chase addresses only the argument it actually repudiated the Lease, asserting it did not). Thus, th e Court determines as a matter of law only that the Lease was assigned to Chase on September 25, 2 0 0 8 pursuant to the terms of the PAA, such that Plaintiff's motion for summary judgment must be G R A N T E D in part on this ground, and Chase's and the FDIC's motions for summary judgment must b e DENIED on this ground. f. P aro l Evidence

B o th the FDIC and Chase attempt to put forth various types of parol evidence to justify their agreed-u po n interpretation of the PAA. Of course, the parol evidence is inadmissible given the fact that all of the parties agree the PAA is unambiguous. To get around this prohibition, Chase argues a " stranger" to the contract, such as Plaintiff, has no right to assert the parole evidence rule. In other w o rd s, the defendants argue because Plaintiff is a "stranger" to the PAA, it has no right to object to their agreed-upon interpretation of its terms (a convenient interpretation which, the Court notes, has ab so lu tely no grounding in the language of the PAA, and is a creature entirely of the parties' own fa n cifu l creation).5

Under this contention, the FDIC and Chase could determine between themselves-- s u b s e q u e n t to the P A A -- w h a t property is "Bank Premises" and what property is "Other Real Estate," notwithstanding the express d e f i n i t io n in the PAA and based entirely on their own whims. This would render the words of the contract absolutely m e a n ing le ss.

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H o w e v e r , this argument is entirely foreclosed if Plaintiff is in privity with a party to the con tract (as the Court has determined he is). See United States v. Vahlco Corp., 720 F.2d 885, 892 (5th Cir. 1983) (citing Ragland v. Curtis Mathes Sales Co., 446 S.W.2d 577, 578 (Tex. Civ. App. 1 9 6 9)). For instance, in Brannon, the Texas Supreme Court held parol evidence was indeed

inad m issible to prove that a "lease rental" was bonus consideration for an unexecuted lease rather than a rental payment due under a former, executed lease. Brannon v. Gulf States Energy Corp., 562 S .W .2d 219 (Tex. 1977). Because the party to the former lease may have had rights under that lease if those rights had not been extinguished by the new lease, the party to the former lease was not a " stran ger" to the new lease, even though not a party to it, and was allowed to challenge the agreedup on interpretation of both parties to the new lease, and to assert the parol evidence rule. Id. The sim ilarities to the present case are striking: as Plaintiff can show he has rights under the Lease against C h ase only if he is allowed to challenge the defendants' interpretation of the PAA, and assert the parol e v id e n c e rule to exclude improper evidence of its unambiguous terms. Like the Texas Supreme Court d id, this Court finds Plaintiff is not a stranger to the PAA, and thus may assert the parol evidence rule to exclude improper evidence. Since the PAA is unambiguous, it would be error to allow its written term s and the effect thereof to be varied by parol evidence. See id. at 224. The Court also notes the parol evidence the parties attempt to introduce, if anything, confirms the Court in its own interpretation of the PAA. Both Chase and the FDIC cite an FDIC manual (which w a s not incorporated into the PAA) that sets forth what "Bank Premises" commonly means with respect to FDIC dealings. See FDIC Resp. [#32] at 3 (citing FEDERAL DEPOSIT INSURANCE CORP. RISK M ANAGEME NT MANUAL OF EXAMINATION POLICIES ("MANUAL") § 3.5); and see Chase's Mot. Summ. J. at 6 (same). What is instructive about the Manual is that it uses a similar, but much broader

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definition of Bank Premises; apparently, Bank Premises in the Manual is defined as including "vaults, fix ed machinery, equipment, parking lots, and real estate acquired for future expansion." MANUAL at § 3.6 (emphasis added). Aside from the fact this citation is parol evidence of an unambiguous p ro v isio n of the contract and is thus inadmissible, it sheds no light on the language of the PAA, except to lead the Court to wonder why the parties to the PAA--which had such an all-inclusive definition o f Bank Premises close at hand--chose instead to include the definition they did, which is far different fr o m the one set forth in the Manual, and makes no reference to "real estate acquired for future e x p a n sio n . " But, leaving this vexing (but ultimately irrelevant) question to better minds, the Court turn s to other issues. g. E vid en tia ry Objections

E ach of the parties have filed extensive lists of objections to the evidence submitted by their op po nen ts. See, e.g. Chase's Mot. Exclude Evid. [#31]; Pl.'s Objs. to Chase's Evid. [#25]. Because no ne of the objected-to evidence was relied upon by the Court in reaching the conclusions contained in this order, the Court finds the objections should be DISMISSED as moot in their entirety. h. N eg lig en t Misrepresentation Claim

F in ally, in addition to its breach of contract claim, Plaintiff brings a negligent misrepresentation claim . The claim is based on misrepresentations allegedly made by Defendant Fowlkes to Plaintiff that the Lease would be assumed and prorated rent would be paid by Chase. See Orig. Pet. at ¶ 13. Chase ar gu es this claim is foreclosed because Plaintiff seeks only economic damages, and thus the economic loss rule applies. U n d er the economic loss rule, "a plaintiff may not bring a claim for negligent misrepresentation u n less the plaintiff can establish that he suffered an injury that is distinct, separate, and independent

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from the economic losses recoverable under a breach of contract claim." D.S.A. Inc. v. Hillsboro In d ep . Sch. Dist., 973 S.W.2d 662, 664 (Tex. 1998). The burden is on the plaintiff claiming negligent m isrepresen tation to provide evidence of this independent injury. Id. The rationale for this rule is that " [r ]ep u d iatin g the independent injury requirement for negligent misrepresentation claims would po tentially convert every contract interpretation dispute into a negligent misrepresentation claim." Id. at 664. Plaintiff claims it has asserted the negligent misrepresentation claim only in the alternative to its breach of contract claim. But the difference is without a distinction, as the question does not turn on whether the parties are in privity: Texas state courts have consistently applied the economic loss rule to negligence claims even between parties who were not in privity. Sterling Chems., Inc. v. T exaco Inc., 259 S.W.3d 793, 799 (Tex. App.­Houston [1 st Dist.] 2007). Plaintiff does not otherwise respo nd , except to argue there are fact issues that make summary judgment on this claim premature. T h e Court does not agree--Plaintiff is seeking contractual damages only, and therefore the m isrepresen tation claim is foreclosed to him under clear Texas precedent unless he can show an in d e p e n d e n t injury, which he has not done (or even attempted to do). Chase's motion for summary jud gm ent is GRANTED IN PART, solely on this issue.

CONCLUSION In accordance with the foregoing: IT IS ORDERED that Plaintiff 290 at 71, LLC's Amended Motion for S um m ary Judgment [#22] is GRANTED in part, insofar as it seeks judgment as a m atter of law the Lease was wholly transferred to Defendant JPMorgan Chase on

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S e p tem b e r 25, 2008, pursuant to the terms of the Purchase and Assumption A gre em en t. IT IS FURTHER ORDERED that Defendant JPMorgan Chase Bank's motion to exclude and objections to evidence in support of Plaintiff's motion for summary jud gm en t [#31] is DISMISSED as moot. IT IS FURTHER ORDERED that Defendant JPMorgan Chase's Motion for S u m m ary Judgment [#23] is GRANTED in part, as to the plaintiff's negligent m isrepresen tation claim. IT IS FURTHER ORDERED that Plaintiff's evidentiary objections to D e fe n d a n t JPMorgan Chase's motion for summary judgment [#25] and to the FDIC's m otion for summary judgment [#26] are DISMISSED as moot. IT IS FINALLY ORDERED that the FDIC's Motion for Summary Judgment [#2 4] is DENIED. SIGNED this the 9 th day of November 2009.

_ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ _ S A M SPARKS U N IT E D STATES DISTRICT JUDGE

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