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holding deposition testimony that appeared deliberate, clear, and unequivocal in isolation was mere quasi-admission for jury to resolve when considered in entire context of testimony
Summary of this case from Cruz v. Mor-Con, Inc.Opinion
No. 13-03-00429-CV.
December 14, 2006.
On appeal from the 343rd District Court of Aransas County, Texas.
Before Justices HINOJOSA, YaÑez, and CASTILLO.
MEMORANDUM OPINION
Appellants, Carole J. Drake, Carlene K. Vinyard, Janet Fay Day, and Cheryl A. Kurtz, appeal a judgment in favor of appellees, Joe Zambrano d/b/a AA Pepe's Bail Bonds and Lucille Spriggs d/b/a Lulu's Bail Bonds. On appeal, appellants raise ten issues which, for purposes of organization, will be reordered, addressed as eight, and referred to numerically as herein sequenced: (1) the trial court erred in entering judgment on the jury's verdict; (2) the trial court erred in denying appellants' motion for new trial; (3) the trial court erred in granting a motion for instructed verdict on appellants' causes of action of civil conspiracy, conspiracy to defraud, fraud, fraudulent misrepresentation, negligent misrepresentation, and breach of the common law express warranty for services; (4) the trial court erred by failing to submit to the jury all grounds of recovery raised in appellants' original petition; (5) the trial court erred in requiring appellants to make offers of proof under the rule of optional completeness; (6) the trial court erred by improperly excluding evidence; (7) appellants' motion to recuse judge was denied in error; and (8) the trial court erred in granting a no-evidence motion for summary judgment on appellants' Deceptive Trade Practice Act ("DTPA") claim. We reverse the summary judgment and remand the cause for further trial proceedings.
Appellants' issues seven and eight are addressed in our issue seven.
Appellants' issues one and two are addressed in our issue eight.
BACKGROUND
Appellants are the heirs of Carl J. Kurtz ("Kurtz"). On September 17, 1999, a district court in Montrose County, Colorado issued a warrant for Kurtz's arrest; the State of Colorado had charged Kurtz with two felony offenses, conspiracy to commit murder and criminal solicitation to commit murder, which were allegedly committed in Montrose County. On September 28, 1999, as a result of the outstanding warrant, Kurtz was arrested in Aransas County, Texas and placed in the county jail. Shortly thereafter, Kurtz was arraigned by an Aransas County judge. Though the warrant fixed bail at $500,000 for both charges combined, bail was instead set at $1,000,000 ($500,000 for each charge). Kurtz subsequently paid appellees, AA Pepe's Bail Bonds and Lulu's Bail Bonds, two Texas bonding companies, a total of $100,000 ($50,000 to each) for two bonds to secure his release from jail in Aransas County. After appellees guaranteed the two $500,000 bonds, Kurtz was released from jail on the condition that he appear for a hearing in Montrose County, Colorado. On November 1, 1999, Joe Zambrano, acting on behalf of himself and Lucille Spriggs, escorted Kurtz to his advisement hearing in Montrose County. At the hearing, Judge Richard Brown expressed concern and confusion with regard to Kurtz's bonds and his appearance before the court. The court found that Kurtz, despite his intent not to do so, had waived his right to contest extradition from Texas by appearing in Aransas County. Judge Brown then considered whether or not Kurtz should be required to post an additional bond to remain out on bail. Zambrano attempted to reassure the court that appellees would continue to hold themselves liable on the bonds in the event of forfeiture, but the court ultimately concluded that the bonds were invalid and that appellees were likely not subject to the court's jurisdiction in Colorado. As a result, Judge Brown required Kurtz to post another bond from a Colorado bondsman in the amount of $100,000. Kurtz complied with the court's order, paying a Colorado bonding company $10,000 to help secure his release pending a trial on the two charges. After the criminal case against him was resolved, Kurtz obtained an attorney for the purpose of recovering a portion of the $100,000 in bonding premiums paid to appellees. Demand letters were sent to appellees on Kurtz's behalf. The letters alleged that appellees had misrepresented to Kurtz the validity of the bonds and the extent to which they would secure his release. A few months later, Kurtz died on August 5, 2001.
Kurtz died intestate. The appellants before us include his wife, Cheryl A. Kurtz, and his three daughters, Carol J. Drake, Carlene K. Vinyard, and Janet Fay Day.
Though not applicable to our resolution of the issues presented in this case, we are inclined to express our concern regarding the manner in which officials in Aransas County arranged Kurtz's return to Colorado. In 1951, Texas adopted the Uniform Criminal Extradition Act ("UCEA"), presently codified in article 51.13 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. Art. 51.13 (Vernon 2006). Section 16 of the UCEA states:
Unless the offense with which the prisoner is charged is shown to be an offense punishable by death or life imprisonment under the laws of the State in which it was committed, a judge or magistrate in this State may admit the person arrested to bail by bond, with sufficient sureties and in such sum as he deems proper, conditioned for his appearance before him at a time specified in such bond, and for his surrender, to be arrested upon the warrant of the Governor in this State. Id. Therefore, under section 16, Kurtz should have been released on bond on the condition that he return to Aransas County so that he could be extradited in accordance with other sections of the UCEA. Section 25a of the UCEA, however, expressly provides that an arrested person may voluntarily waive all extradition procedures if the waiver is made in the presence of a judge, and if the judge has informed the person of his rights under the statute. Id. We find nothing in the record indicating that Kurtz made such a formal waiver, and all inferences drawn from the record seemingly indicate that no formal waiver was made.
Although a waiver signed in the presence of a judge may be the preferred method, section 25a contains a proviso that specifically states it is not the exclusive method of securing a valid waiver. It provides in part as follows:
[T]hat nothing in this section shall be deemed to limit the rights of the accused person to return voluntarily and without formality to the demanding state, nor shall this waiver procedure be deemed to be an exclusive procedure or to limit the powers, rights or duties of the officers of the demanding state or of this state. (Emphasis added).
On one occasion, the Texas Court of Criminal Appeals utilized this proviso in holding that formal extradition proceedings are not necessary when returning "absconding parolees or probationers who have signed a prior waiver of extradition as a condition to their release." Ex parte Johnson, 610 S.W.2d 757, 759-60 (Tex.Crim.App. 1980). Accordingly, one might argue that Kurtz informally waived his rights under the UCEA by agreeing to enter into a bonding agreement that conditioned his release on his return to Colorado; we find this contention, however, problematic. The parole agreement in Johnson explicitly notified the parolee of his waiver of rights; no such notice was afforded to Kurtz under his bonding agreements. Though no court that we are bound to follow has directly addressed what, if any, protections attach to an informal waiver procedure, we believe that a valid waiver needs three essential elements: (1) an unequivocal statement by the accused of his intent to waive extradition rights; (2) made voluntarily; and (3) with some rudimentary understanding of the rights being relinquished. See McBride v. Soos, 512 F. Supp. 1207, 1212-13 (N.D. Ind. 1981), aff'd, 679 F.2d 1223 (7th Cir. 1982). These elements are not found in the instant case. The transcript of Kurtz's initial hearing in Colorado reveals that Kurtz had never intended to waive extradition by appearing in Colorado; it also shows that appellees' understanding of extradition law was no better than Kurtz's. Even a Colorado state prosecutor at the hearing is quoted stating: "In all honesty, every indication I had was that Mr. Kurtz was going to fight extradition and that he was simply bailing out of jail in Texas, to do this hearing down there." The failure of Aransas County officials to follow prescribed statutory procedures has made it difficult for this Court to decipher how and why Kurtz's bonding predicament came into existence. We have attempted herein to rationalize the County's actions, but we ultimately find that they are without justification. We believe that officials failed to afford Kurtz procedural due process protections as was required of them under the UCEA.
On September 27, 2001, appellants, Kurtz's heirs, filed suit against appellees in Aransas County. By way of their original petition, appellants alleged causes of action for violation of the DTPA, fraudulent and negligent misrepresentation, breach of warranty, breach of good faith and fair dealing, and breach of contract. Appellees raised a no-evidence motion for summary judgment as to appellants' DTPA claim, which was ultimately granted on November 13, 2002. Trial began on March 24, 2003, and at the close of appellants' case-in-chief, the trial court granted appellees' motion for instructed verdict on appellants' causes of action for breach of warranty and fraudulent and negligent misrepresentation. The trial proceeded on appellants' breach of good faith and fair dealing and breach of contract claims. The jury ultimately returned a verdict in appellees' favor on both claims. Appellants filed motions for new trial, judgment notwithstanding the verdict, and to recuse the trial judge; all three motions were denied. Appellants then filed this appeal.
ISSUES ON APPEAL Issues 1-5
We begin by finding that appellants have waived the first five issues on appeal. In their brief, appellants offer no argument or authority for why they are entitled to a new trial. Regarding their motion for judgment notwithstanding the verdict, appellants only argue that they are entitled to JNOV because there was testimony at trial that should have constituted a judicial admission. The testimony believed to constitute a judicial admission is not provided for us, nor is the Court directed to any specific point in the record. We are not told whether the alleged judicial admission constitutes some of the evidence that was improperly excluded at trial, as appellants allege in another issue, or whether this is an admission that was actually presented as evidence before the jury. Appellants additionally failed to provide any argument for why there was legally insufficient evidence to support the jury's verdict.
See Tex. R. App. P. 38.1(h); Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 410 (Tex. 1997); Tex. Dep't of Pub. Safety v. Struve, 79 S.W.3d 796, 801 n. 6 (Tex.App.-Corpus Christi 2002, pet. denied).
See Tex. R. App. P. 38.1(h).
Id.
In urging this Court to find error in the trial court's granting of instructed verdict and its failure to submit all causes of action stated in appellants' original petition, appellants simply refer us to numerous portions of the record. Appellants provide no legal authority and fail to discuss the elements required to prove causes of action for civil conspiracy, conspiracy to defraud, fraud, fraudulent misrepresentation, negligent misrepresentation, and breach of the common law express warranty for services; appellants have also failed to discuss how alleged facts and evidence presented establish each required element for each cause of action asserted.
Id.
Lastly, in their complaint regarding the trial court's use of the rule of optional completeness, outlined in rule 107 of the Texas Rules of Evidence, appellants simply define the rule and direct us to numerous points in the record where the rule was utilized. Appellants make no attempt to explain how the trial court erred in its application of the rule, nor do they explain how they were harmed by any such error.
Id.
We have little latitude on appeal and can neither remedy deficiencies in a litigant's brief nor supply an adequate record. Furthermore, we have no duty to perform an independent review of the record and applicable law to determine whether the error complained of occurred. Because appellants failed to adequately brief the five aforementioned issues on appeal, they have presented nothing for our review.
Green v. Kaposta, 152 S.W.3d 839, 841 (Tex.App.-Dallas, no pet.) (citing Strange v. Cont'l Cas. Co., 126 S.W.3d 676, 678 (Tex.App.-Dallas 2004, pet. denied)).
See id.
See id.; Tex. R. App. P. 38.1(h).
Issue 6: Excluded Evidence
In the sixth issue, appellants allege the trial court erred in excluding evidence that was material and relevant to their causes of action. We review the trial judge's exclusion of evidence under an abuse of discretion standard. A trial court abuses its discretion when it acts without regard for any guiding rules or principles. To obtain reversal of a judgment based on error in the admission or exclusion of evidence, an appellant must show the trial judge's ruling was in error and the error probably caused the rendition of an improper judgment.
See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (concluding that the admission or exclusion of evidence is a matter within trial judge's discretion).
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
See Tex. R. App. P. 44.1; Owens-Corning Fiberglas Corp., 972 S.W.2d at 43.
Appellants first direct our attention to an excluded portion of Joe Zambrano's deposition, which allegedly contains a judicial admission. This portion contains the following exchange between appellants' counsel and Zambrano:
Q [By counsel]: And so if that statement was not true, you received $50,000 from Carl Jay Kurtz that you were not entitled to; correct?
A [By Zambrano]: Correct.
The "statement" referred to in counsel's question is the "Oath of Sureties" that Zambrano signed on Kurtz's bail bond. The oath consisted of a sworn statement from Zambrano to the State of Texas, whereby Zambrano swore to have a net worth greater than one-million dollars.
After reviewing his entire deposition, we find that Zambrano made a quasi-admission. The Texas Supreme Court, in distinguishing a quasi-admission from a judicial admission, has stated:
A party's testimonial declarations which are contrary to his position are quasi-admissions. They are merely some evidence, and they are not conclusive upon the admitter. . . . These are to be distinguished from the true judicial admission which is a formal waiver of proof usually found in pleadings or the stipulations of the parties. A judicial admission is conclusive upon the party making it, and it relieves the opposing party's burden of proving the admitted fact, and bars the admitting party from disputing it.
Mendoza v. Fidelity Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980).
In order to treat a party's testimonial quasi-admission as a conclusive judicial admission, the statement must be "deliberate, clear, and unequivocal" and "the hypothesis of mere mistake or slip of the tongue must be eliminated." Zambrano's testimony, as quoted above, was but a small part of his deposition testimony. In other parts of his deposition, Zambrano defends his entitlement to the money he received from Kurtz. In light of the entire deposition, we cannot definitively exclude the possibility that Zambrano made a "mere mistake or slip of the tongue," nor can we say that his statement was "deliberate, clear, and unequivocal."
Griffin v. Superior Ins. Co., 338 S.W.2d 415, 419 (Tex. 1960).
The excluded evidence appellants complain of consists of Zambrano's quasi-admission, other portions of his deposition, and testimony from four other witnesses. All of the testimony, which was excluded on relevance grounds pursuant to a motion in limine, pertains to appellees' financial status. Appellants sought to utilize the testimony to prove that appellees misrepresented their net worth when signing the "Oath of Sureties" contained on each bail bond.
We find that this evidence was properly excluded. A bondsman's misrepresentation of net worth on a bond could possibly create a cause of action for the principal if bail was prematurely terminated as a direct result of the misrepresentation. This, however, did not occur in the instant case. According to the testimony of Judge Richard Brown, he required Kurtz to post an additional bond through a Colorado bondsman because (1) appellees were not licensed bondsmen under the State of Colorado, (2) he did not know if appellees would be subject to Colorado's jurisdiction in the event of a bond forfeiture, and (3) appellees' bonds were not supplemented with formal proof that substantiated appellees' claimed net worth, as was traditionally required in Colorado. In fact, Judge Brown testified that appellees' financial "representation actually meant nothing to [him]." There was simply no evidence indicating that appellees' bonds were replaced as a result of any perceived financial misrepresentation. Since the evidence relating to whether appellees actually made financial misrepresentations was wholly irrelevant, we find that the trial court did not abuse its discretion. Accordingly, appellants' sixth issue is overruled.
Issue 7: Motion to Recuse Judge
In the seventh issue, appellants complain that Judge David Peeples, Presiding Judge of the Fourth Administrative Judicial District in Texas, erred in denying their motion to recuse Judge Janna K. Whatley. On an appeal from the denial of a recusal motion, the reviewing court may reverse the trial court's decision only if the trial court abused its discretion.
At the motion to recuse hearing, appellants asserted that Judge Whatley (1) exhibited a physical demeanor that was hostile toward appellants, (2) made a number of rulings that were persistently unwarranted and biased against appellants, (3) was biased as a result of a prior employment relationship with appellees' counsel, and (4) derived an opinion, from an extrajudicial source, that was hostile or critical of appellants' counsel.
This consisted of rolling her eyes and appearing inattentive while appellants' counsel spoke.
These rulings, in large part, pertain to the application of the rule of optional completeness, the exclusion of evidence complained of in issue five, the granting of summary judgment and instructed verdict against appellants' causes of action, and the overruling and sustaining of trial objections in a manner that appellants claim wholly favored appellees.
To demonstrate evidence of an extrajudicial source, appellants refer us to a pretrial discussion between appellees' counsel, Robert L. Joseph, appellants' counsel, John F. Dietze, and Judge Whatley. In the following excerpt, Dietze and Judge Whatley discuss the no-evidence summary judgment motion that had been granted days earlier to appellees:
COURT: Mr. Dietze, I have read that. I mean, I can talk to you about that for days. You do not know how many people have told me what you thought about my ruling on that. It's gotten back to me. That's okay; I understand. Disagreements are good. That's fine. I've read it. I feel like I know the case very well and I'm comfortable with my ruling. Court of Appeals may tell me I'm wrong and I'll be glad to redo it at that time.
DIETZE: May I inquire of the Court who has told you about my-what I vocalized about my opinion of the ruling?
COURT: I am trying to recall. No one that's a party in the case. I can tell you that. Someone said something to me in Sinton that you were totally dismayed with me over my ruling. And that's okay; that's fine. I just wish you'd come tell me. Okay.
DIETZE: Judge, I tried-I tried to tell you in the form of a motion for reconsideration. I wrote you two letters.
COURT: Don't talk about me to other people, though. That's my only-that's my only — that's my only thing is it did upset me that you did that. But I can't recall who it was. I promise you it wasn't Mr. Joseph or any of the parties in this case. It was somebody totally unrelated. That's why I was like . . . If I think about who it is, I'll be glad to tell you.
"Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion." As noted earlier, appellants waived any error pertaining to the trial court's application of the rule of optional completeness and its granting of the instructed verdict. In asserting this seventh point on appeal, appellants do not reattempt to argue how these two issues amounted to trial error, and we will again decline to construct any such arguments for them. Since we have already determined that evidence was properly excluded, the only trial court rulings that remain unaddressed relate to the no-evidence motion for summary judgment and the alleged favoritism that was exercised in the sustaining and overruling of trial objections. After reviewing the record, we do not find that the trial court's rulings constitute any proof of bias or partiality.
Liteky v. United States, 510 U.S. 540, 555 (1994).
"[J]udicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." "Such remarks may [support recusal] if they reveal an opinion deriving from an extrajudicial source, and such remarks will do so if they reveal such a high degree of favoritism or antagonism as to make fair judgment impossible." Though the record shows that Judge Whatley's light chastising of appellants' counsel was prompted by an extrajudicial source, as outlined in footnote 21, we find insufficient evidence of favoritism or antagonism resulting therefrom, as is required to support recusal.
Id.
Ludlow v. DeBerry, 959 S.W.2d 265, 271 (Tex.App.-Houston [14th Dist.] 1997, no writ).
Judge Whatley's employment under appellees' counsel, which terminated when she became a judge, is not a relationship that explicitly warrants recusal under the Texas Rules of Civil Procedure; nor do we believe that her impartiality should reasonably be questioned in light of this relationship. Lastly, because her complained of demeanor does not establish bias or partiality, we find that Judge Peeples did not abuse his discretion in denying appellants' motion to recuse. Appellants' seventh issue is overruled.
See Tex. R. Civ. P. 18b.
Liteky, 510 U.S. at 555 (holding that "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge").
Issue 8: No-Evidence Motion for Summary Judgment
The eighth and final issue before us concerns whether the trial court erred in granting appellees' no-evidence motion for summary judgment on appellants' DTPA claim. The motion was granted on the grounds that appellants had failed to present evidence showing that appellees committed any act that was the "producing cause" of the damages claimed. Appellants attack the motion on two grounds.
a. Appellants' Special Exceptions
Appellants first assert the trial court erred in overruling their special exceptions to the no-evidence motion. Appellants objected and specially excepted to the motion on the basis that it failed to state the relief sought with specificity. In the no-evidence motion's prayer, appellees requested the trial court to grant the motion and to award "such further relief as the court deems just." According to appellants, the prayer should have specifically requested that a judgment be summarily rendered that the claimants take nothing.
We liberally construe pleadings because special exceptions are only a challenge to determine if the "fair notice" requirements of pleadings have been met. If by examining the plaintiff's pleadings alone, we may ascertain with reasonable certainty the elements of a cause of action and the relief sought, the pleading is sufficient. We believe one may ascertain with reasonable certainty the relief sought in appellees' prayer. Accordingly, we find the trial court did not err in overruling appellants' special exceptions.
See Wortham v. Dow Chem. Co., 179 S.W.3d 189, 198-99 (Tex.App.-Houston [14th Dist.] 2005, no pet.).
Id. at 198.
b. Standard of Review
Pursuant to Texas Rule of Civil Procedure 166a(i), a defendant may move for summary judgment on the ground that there is "no evidence of one or more essential elements" of a plaintiff's claim. Once a defendant moves for summary judgment on no-evidence grounds, the burden shifts to the plaintiff to present evidence sufficient to raise a genuine issue of material fact on the challenged element or elements. If the plaintiff fails to satisfy its burden, the trial court must grant the motion.
See id.; Branton v. Wood, 100 S.W.3d 645, 647 (Tex.App. — Corpus Christi 2003, no pet.) (citing Tex. R. Civ. P. 166a cmt.).
See Branton, 100 S.W.3d at 647 (citing Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 433 (Tex.App.-Houston [14th Dist.] 1999, no pet.)).
In reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard that is applied in reviewing directed verdicts Therefore, we review the evidence in the light most favorable to the nonmovant and disregard all contrary evidence and inferences."A no evidence point will be sustained when (a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital fact." Thus, a no-evidence summary judgment is improperly granted if the nonmovant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. More than a scintilla of evidence exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Less than a scintilla of evidence exists when the evidence is "so weak as to do no more than create a mere surmise or suspicion" of a fact.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Zapata v. Children's Clinic, 997 S.W.2d 745, 747 (Tex.App. — Corpus Christi 1999, pet. denied).
King Ranch, 118 S.W.3d at 750; Zapata, 997 S.W.2d at 747 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997); Moore v. Kmart Corp., 981 S.W.2d 266, 269 (Tex.App.-San Antonio 1998, pet. denied)).
King Ranch, 118 S.W.3d at 751 (quoting Merrell Dow Pharms., 953 S.W.2d at 711).
Id. (citing Tex. R. Civ. P. 166a(i); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002)).
Id. (quoting Merrell Dow Pharms., 953 S.W.2d at 711).
The DTPA contains a list, commonly referred to as the "laundry list," of actions declared to constitute false, misleading, or deceptive acts. Private parties are empowered to maintain an action for damages, whether economic or for mental anguish, where a laundry-list violation is the producing cause. To succeed in a DTPA laundry-list action, a plaintiff must show that (1) he is a consumer, (2) the defendant engaged in false, misleading, or deceptive acts, (3) on which the plaintiff relied, and (4) these acts constituted a producing cause of the consumer's damages.
Tex. Bus. Com. Code Ann. § 17.46(b) (Vernon 2006); Checker Bag Co. v. Washington, 27 S.W.3d 625, 634 (Tex.App.-Waco 2000, pet. denied) (citing Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 386 (Tex. 2000)).
Tex. Bus. Com. Code Ann. § 17.50(a)(1) (Vernon 2006).
Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 705 (Tex. 2002) (citing Tex. Bus. Com. Code Ann. § 17.50(a)(1); Checker Bag, 27 S.W.3d at 634).
A producing cause is "an efficient, exciting, or contributing cause, which in a natural sequence, produced injuries or damages complained of, if any." Common to both proximate and producing cause is causation in fact, including the requirement that the defendant's conduct or product be a substantial factor in bringing about the plaintiff's injuries. While foreseeability is an element of proximate cause, it is not of producing cause.
Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995).
Id.
Id.
c. Evidence of Producing Cause
Appellants contend there was more than a scintilla of evidence to support the producing cause element of their DTPA claim. In their original petition, appellants claimed that appellees misrepresented that (1) they were of a financial net worth as sworn on their bonds' "Oath of Sureties," (2) they were authorized to write bail bonds in the State of Colorado, and (3) the bonds would be valid in the State of Colorado. Appellants specifically claimed that these alleged misrepresentations violate the following subsections of section 17.46(b) of the Texas Business and Commerce Code:
In their original petition, appellants listed causes of action under section 17.46(b)(19) and (23), rather than subsections (20) and (24) as we have listed herein. Appellants failed to account for statutory revisions to the DTPA that were made effective approximately four weeks prior to the filing of their petition. When the revisions became effective, causes of action which would have been pleaded under subsections (19) and (23) were now renumbered as subsections (20) and (24). This defect was not addressed at trial nor has either party made it an issue on appeal. We have been apprised of this defect through appellants' petition, which described each wrongly numerated subsection with sufficient detail to alert us of their intended pleadings. We have elected to set out those causes of action that appellants clearly intended to raise in this opinion.
(b) Except as provided in Subsection (d) of this section, the term "false, misleading, or deceptive acts or practices" includes, but is not limited to, the following acts:
. . . .
(5) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;
. . . .
(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;
. . . .
(20) representing that a guarantee or warranty confers or involves rights or remedies which it does not have or involve, provided, however, that nothing in this subchapter shall be construed to expand the implied warranty of merchantability as defined in Sections 2.314 through 2.318 and Sections 2A.212 through 2A.216 to involve obligations in excess of those which are appropriate to the goods;
. . . .
(24) failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.
Tex. Bus. Com. Code Ann. § 17.46(b)(5), (12), (20), (24) (Vernon 2006).
Appellants also asserted that appellees' alleged misrepresentations constituted an unconscionable action or course of action in violation of section 17.50(a)(3) of the business and commerce code.
When the trial court's order specifies the ground relied on for the summary judgment ruling, as in this case, the summary judgment can be affirmed only if the theory relied on by the trial court is meritorious. Accordingly, our review is limited to whether the alleged misrepresentations were the producing cause of damages; it does not encompass determinations as to appellants' consumer status, nor the existence of misrepresentation and reliance.
See State Farm Fire Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).
The record reveals that during a pretrial discussion of appellees' no-evidence motion, Judge Whatley expressed to appellants the evidentiary problems she had with their DTPA claim. Judge Whatley called into question whether there was any evidence showing that Kurtz and appellees had specifically agreed to enter into bonding agreements that would survive beyond Kurtz's initial hearing in Colorado. This evidentiary issue, however, begs the question of whether a misrepresentation exists, not whether any such misrepresentation is a producing cause; we view these two issues as two distinct elements that a party must prove when asserting a DTPA cause of action. However, we do believe, without formally holding on the matter, that the transcript of Kurtz's Colorado hearing provides more than a scintilla of evidence that Kurtz and appellees intended for the bonds to survive longer than they actually did.
When we addressed issue six, relating to the exclusion of evidence, we deemed irrelevant any evidence relating to whether appellees misrepresented their financial net worth on the bonds. For all the same reasons already expressed therein, we find that any such misrepresentation, if made, was not a producing cause of appellants' damages and lends no support to their DTPA claim.
As was also discussed in issue six, we note the deposition testimony of Judge Brown. In the deposition, which appellants proffered to the trial court in their response to appellees' no-evidence motion, Judge Brown stated that in his opinion, "neither one of [the] bonds were subject to the Court's jurisdiction in Colorado and were not valid in Colorado." When asked if appellees' bonds were worthless, his response was that in "terms of being a legally-recognized document in Colorado that we would accept for bonding purposes so that Mr. Kurtz could remain out of custody pending his case resolution, they did not have any significance for us." We thus find that Judge Brown's deposition provides some evidence that a misrepresentation of the bonds' validity in Colorado, which encompasses the issue of licensing, was the legal cause of appellants' damages.
In addition to legal cause, appellants needed to prove that but for appellees' conduct, appellants' injuries would not have occurred. This means that, but for the alleged misrepresentations of appellees, Kurtz would not have elected to secure bonds with them. We note, however, that where the misrepresentation is material, as here, we presume that this factor is met, "in absence of facts showing the contrary."Appellees did not present evidence to rebut the presumption that misrepresentation of the bonds' validity in Colorado induced Kurtz to enter into bonding agreements with appellees. We may thus conclude that, but for appellees' misrepresentations, Kurtz would not have incurred the damages in question. Accordingly, we find for appellants on this issue.
See Prudential Ins. Co. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex. 1995).
"A misrepresentation is material if it would be likely to induce a reasonable person to manifest his assent." Restatement (Second) of Contracts § 162 cmt. c. We find that a misrepresentation as to the duration for which a bail bond will secure release undoubtedly concerns a material matter.
See Restatement (Second) of Contracts § 162 cmt. c.; Provident Life Accident Ins. Co. v. Hawley, 123 F.2d 479, 483 (4th Cir. 1941); Miller v. Celebration Mining Co., 2001 UT 64, 29 P.3d 1231, 1235 (Utah 2001).
CONCLUSION
We reverse the trial court's judgment on the DTPA claim and remand that claim to the trial court for further proceedings. We affirm the trial court's judgment in all other respects.
Justice Errlinda Castillo
CONCURRING AND DISSENTING MEMORANDUM OPINION.
I join the majority opinion except as to its conclusion that the trial court erred in granting the no-evidence motion for summary judgment on appellants' Deceptive Trade Practices Act ("DTPA") claims. Because I would affirm the trial court's ruling on this issue, I respectfully dissent.
Appellants alleged in the First Amended Petition that unlawful acts and practices were the producing cause(s) of damages to Cheryl A. Kurtz, wife of the deceased, Carl J. Kurtz ("Kurtz"). Kurtz paid $50,000 to Valdez and Spriggs, d/b/a Lulu's Bail Bonds, for a bail bond, and another $50,000 to Zambrano d/b/a AA Pepe's Bail Bonds, in order to secure his release from jail in Aransas County, Texas. Kurtz had been arrested on warrants issuing from Montrose County, Colorado, for conspiracy to commit murder and criminal solicitation to commit murder.
Evidence reflects that Kurtz, although subject to Aransas County authorities, was at least for some portion of the relevant time hospitalized instead of housed in the jail.
By their lawsuit, appellants, as Kurtz's heirs, complained that the sureties were not approved to make bonds or render bonding services in Montrose County, Colorado, and that Kurtz was subsequently required to post another bond from a Colorado bondsman. Appellants alleged violations of the DTPA, complaining that appellees misrepresented the validity of bonds and the extent to which the bonds would secure Kurtz's release. Specifically, appellants charged that appellees had "failed to disclose" to Kurtz that "they were not approved to write bail bonds in Colorado," that the bonds would need to be replaced upon his appearance in the Colorado court, and that they would be relieved from any liability once he appeared at the advisement hearing in Colorado. It is undisputed that Kurtz was released from Aransas County officials' custody upon tender of the bonds. Appellants contended Kurtz sustained pecuniary economic loss in the amount of $100,000, the monies paid for the "worthless and `bogus'" bail bonds.
In their no-evidence motion for summary judgment, appellees contended there was no evidence that any allegations, even if true, including that appellees made any false statements or were not approved to write bail bonds in the state of Colorado, were a producing cause of any damages. The trial court's order finding no evidence as to "`producing cause' under the DTPA on any action alleged to have been committed by the Defendants" and granting the no-evidence motion for summary judgment as to all DTPA claims was entered November 13, 2002.
Appellants contend, and the majority agrees, that they tendered more than a scintilla of evidence to support the producing cause element of the DTPA claims. Specifically, the majority concludes that deposition testimony of Judge Brown, the Colorado judge, in which he stated that Colorado did not recognize the Texas bonds as having legal significance, constituted some evidence that a misrepresentation of the bond's validity in Colorado was a producing cause of damages. I disagree. Judge Brown's statement is nothing more than a recognition that Colorado does not recognize Texas bonds. It serves as no evidence of a producing cause of damages.
Appellants also contended that appellees made perjured statements regarding their net worth on the face of the bonds. I agree with the majority that any misrepresentation of financial net worth, if made, was not a producing cause of any damages and cannot be relied upon to support the DTPA claims.
Kurtz fled from Colorado where warrants against him had issued related to murder charges. He was detained and jailed in Aransas County, Texas, on September 28, 1999. He was arraigned by an Aransas County judge who set bail. Kurtz obtained two bonds to secure his release from the Aransas County authority, and he was released on the condition that he appear for a hearing in Montrose County, Colorado. He was subsequently escorted to that advisement hearing by a representative of one of the sureties; that hearing took place November 1, 1999. Between the date of posting of the bonds and his appearance at the hearing, Kurtz was free on bond, just as promised by the Aransas County court and the sureties. Appellants complain that Kurtz was subsequently required to obtain an additional bond, thereby sustaining damages because the Texas bonds were inoperative in Colorado. However, regardless of whether any misrepresentations were made to Kurtz, the summary judgment evidence establishes the Colorado court would have required bond be posted by a Colorado surety.
Kurtz's appearance before the Colorado court was interpreted as voluntary and a waiver of extradition procedures.
Under the DTPA, a consumer may bring suit against any person whose false, misleading, or deceptive acts, or other practices enumerated in the act are the producing cause of the consumer's harm. Miller v. Keyser, 90 S.W.3d 712, 715 (Tex. 2002). As noted by the majority, producing cause requires proof of actual causation in fact. Prudential Ins. Co. of Am. v. Jefferson Assocs., 896 S.W.2d 156, 161 (Tex. 1995). "This requires proof that an act or omission was a substantial factor in bringing about injury which would not otherwise have occurred." Id. "The first component of producing-cause analysis is a purely fact-based examination, considering whether, but for the defendant's conduct, the plaintiff's injuries would not have occurred." Amstadt v. United States Brass Corp., 919 S.W.2d 644, 655 (Tex. 1996) (Gonzales, J., concurring in pat and dissenting in part). Cause in fact is not shown if the defendant's negligence did no more than furnish a condition which made the injury possible. Doe v. Boys Clubs, 907 S.W.2d 472, 477 (Tex. 1995).
Appellants were required to tender more than a scintilla of evidence that, but for appellees' conduct, Kurtz sustained injuries which otherwise would not have occurred. In this instance, that means that, but for the alleged misrepresentations of appellees, Kurtz would not have secured the bonds which subsequently had to be replaced by Colorado bonds. The record should therefore reflect some evidence that either (a) Kurtz would have elected to remain in jail pending being transferred to Colorado through extradition procedures, or (b) he would have sought Colorado bonds beginning with the initiation of his arrest, bypassing any Texas bonding companies. As noted above, it is undisputed that the Texas bonds were effective to secure Kurtz's release on bond from Texas custody.
The question as to whether Colorado bonding companies would be recognized by Texas authorities is not before this Court.
In their response to the no-evidence motion for summary judgment, appellants tendered as evidence of "producing cause" the following: (1) deposition testimony of Joe Zambrano that he knew the bond, when issued, related to a warrant from Colorado, that he did not know the bond would not be recognized in Colorado, that he worked with Spriggs of Lulu's Bail Bonds to get the second bond issued in Kurtz's behalf, that he posted virtually all of his collateral to cover Kurtz, and that he accompanied him to Colorado because if Kurtz hadn't appeared before the Colorado court, Zambrano would have lost everything he had; (2) deposition testimony of Jesse Valdez who, as an agent of Spriggs and Lulu's Bail Bonds, executed that bond, understood it was returnable to Montrose County, Colorado, and knew that Zambrano would accompany Kurtz to the Colorado court; (3) testimony of Lucille Spriggs that her company provided a bond for Kurtz, she knew Zambrano was also providing a bond, that the bonds were returnable to Colorado, and that it was important to present Kurtz to the Colorado court; (4) testimony of Olivia Zambrano; and (5) testimony of Judge Brown, District Judge in Montrose County, Colorado, that bond posted by Kurtz had to be approved by the court, posted by a company subject to the court's jurisdiction, and licensed to do business in Colorado, that the two Texas bonds did not meet those requirements, and therefore, that when Kurtz did appear in his court, a replacement bond was required.
None of these foregoing facts are disputed. None of these facts address whether or not Kurtz would have opted to secure the bonds and his release from the Texas jail had he known an additional bond would be required once he appeared before the Colorado court. I find no evidence that, but for the alleged misrepresentation, Kurtz would have acted differently. Appellants argue that we should presume such harm simply because the Texas bonds were inadequate to secure Kurtz's release pending resolution of the entire matter in Colorado. However, we may not presume or speculate as to evidence of harm, and, as such, I cannot conclude that the trial court erred in finding no evidence that any alleged DTPA violation was a producing cause of damages to Kurtz or his heirs. Accordingly, I respectfully dissent.
The majority cites to no Texas law, and I find none, to support its contention that where a misrepresentation is alleged to have been material, courts should "presume" that the "but for" prong has been satisfied, absent evidence to the contrary. Such an approach constitutes an improper shifting of the burden of proof.
Concurring and Dissenting Memorandum Opinion